text:
    A12A0619.
    REESE et al. v. PROVIDENT FUNDING ASSOCIATES, LLP.
    (758 SE2d 329)
   Miller, Judge.

In Reese v. Provident Funding Assocs., LLP, 317 Ga. App. 353 (730 SE2d 551) (2012), we reversed the grant of summary judgment to Provident on Izell and Raven Reese’s wrongful foreclosure claim, finding that Provident’s notice of foreclosure failed to comply with the requirements of OCGA § 44-14-162.2 insofar as the notice failed to properly identify the secured creditor. The Supreme Court of Georgia granted certiorari, and in Provident Funding Assocs., LLP v. Reese, 2013 Ga. LEXIS 466 (Case No. S12C2028, decided May 20, 2013), it vacated our decision and remanded with direction for this Court to consider this case in light of You v. JP Morgan Chase Bank, 293 Ga. 67 (743 SE2d 428) (2013). In You, the Supreme Court held that the plain language of OCGA § 44-14-162.2 requires only that the notice of foreclosure identify “the individual or entity with full authority to negotiate, amend and modify all terms of the mortgage with the debtor.” (Punctuation omitted.) You, supra, 293 Ga. at 67.

On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations and punctuation omitted.) Campbell v. The Landings Assn., 289 Ga. 617, 618 (713 SE2d 860) (2011).

So viewed, the evidence, as more fully set out in our prior opinion, shows that the Reeses executed a promissory note (the “Note”) in exchange for a $650,000 loan from Provident in order to purchase real property in Roswell, Georgia. The loan was secured by a deed conveying Provident and its nominee an interest in the property and a power of sale in the event of a default (the “Security Deed”). Provident subsequently sold and delivered the Note to Residential Funding Company, LLC, however, Provident remained as the loan servicer, retaining the right to collect payments and perform all other mortgage loan servicing functions authorized by the Security Deed.

In January 2009, the Reeses defaulted on their loan. As a result, on February 13, 2009, Provident sent the Reeses a written notice of default as required by the terms of the Security Deed. The Reeses failed to cure their default within 30 days, and on June 3, 2009, Provident, through its attorneys, sent a letter notifying the Reeses that Provident was commencing foreclosure proceedings. Thereafter, on July 7, 2009, Provident held a non-judicial sale of the Reeses property and purchased the property as the sole bidder at the sale.

The Reeses subsequently sued Provident for wrongful foreclosure. The trial court granted summary judgment to Provident and denied the Reeses’ cross-motion for summary judgment, finding that the Reeses could not sustain a claim for wrongful foreclosure, even though the notice of foreclosure did not include information on the secured creditor, because Provident’s notice of foreclosure “was in keeping with OCGA § 44-14-162.2.”

1. We now consider whether Provident, as the Reeses’ loan servicer, had authority to negotiate, amend and modify all terms of their mortgage. We find that Provident did in fact have such authority.

OCGA § 44-14-162.2 requires that notice of the initiation of foreclosure proceedings must be provided to the debtor no later than 30 days before the date of the proposed foreclosure. That statute further provides that the notice “shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor.” OCGA § 44-14-162.2 (a).

Contrary to the Reeses’ contention, Provident complied with OCGA § 44-14-162.2 because Provident sent the Reeses a notice of foreclosure more than 30 days before the nonjudicial foreclosure sale and the notice specifically informed the Reeses that Provident had authority to negotiate, amend and modify all terms of their Note and Security Deed. See You, supra, 293 Ga. at 74-75 (2). Accordingly, the trial court did not err in finding that the foreclosure notice satisfied the requirements of OCGA § 44-14-162.2.

2. The Reeses also contend that the trial court erred in granting Provident’s motion for summary judgment and in denying the Reeses’ cross-motion for summary judgment on their wrongful foreclosure claim because Provident failed to comply with the terms of their Security Deed. This contention lacks merit.

When a power of sale in a security deed is exercised “all that is required of the foreclosing party is to advertise and sell the property according to the terms of the instrument, and that the sale be conducted in good faith.” (Citation and punctuation omitted.) Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327, 330 (1) (270 SE2d 867) (1980); see also Griffin Builders v. Synovus Bank, 320 Ga. App. 307, 310 (1) (739 SE2d 760) (2013). A foreclosure sale may only be set aside in equity when “the price realized is grossly inadequate and the sale is accompanied by either fraud, mistake, misapprehension, surprise or other circumstances which might authorize a finding that such circumstances contributed to bringing about the inadequacy of price.” (Citation and punctuation omitted.) Kennedy, supra, 155 Ga. App. at 330 (1).

Here, the Reeses failed to state a claim for wrongful foreclosure. Notably, they did not allege that the power of sale provision in the Security Deed was ambiguous, that the Property was not advertised and sold according to the terms of the Security Deed, or that the price realized at the foreclosure sale was grossly inadequate. The Reeses also failed to state a claim for wrongful foreclosure based on the acceleration and remedies provision in the Security Deed, which required Provident to notify the Reeses, not less than 30 days prior to acceleration, of the right to reinstate their mortgage after acceleration and the right to bring a court action to assert the nonexistence of a default or any other defense to acceleration and sale. Contrary to the Reeses’ argument, the written notice sent to them on February 13, 2009, was sufficient because it substantially complied with the acceleration and remedies provision in the Security Deed. See Dennard v. Freeport Minerals Co., 250 Ga. 330, 332 (1) (297 SE2d 222) (1982) (holding that general rule with respect to compliance with contract terms is substantial compliance, not strict compliance).

Here, the notice specifically stated that the Reeses had “the right to reinstate the loan after acceleration and the right to assert in the foreclosure proceeding, the nonexistence of a default and any other defense you have to acceleration and foreclosure.” Since this language substantially complied with the notice requirement in the Security Deed, the Reeses’ wrongful foreclosure claim failed and the trial court properly granted summary judgment to Provident.

Decided May 5, 2014.

David C. Ates, for appellants.

Ellis, Painter, Ratterree & Adams, Sarah B. Akins, for appellee.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A14A0124.
    McMILLAN v. THE STATE.
    (758 SE2d 332)
   Branch, Judge.

Leonard McMillan was convicted of trafficking in cocaine based in part on his possession of several baggies of cocaine, as well as a large amount of currency seized at the time of his arrest. At McMillan’s trial, the evidence custodian testified and admitted that she had been charged with and pled guilty to three charges of theft by taking U. S. currency from the evidence room, including from the evidence in McMillan’s case. Following his conviction, McMillan appeals, and in his sole enumeration of error he contends the trial court erred by admitting the cocaine evidence in light of the custodian’s admission to tampering with evidence. We conclude that the trial court did not abuse its discretion by allowing the cocaine into evidence, and we therefore affirm.

Construed in favor of the verdict, the evidence shows that Officer Crews stopped McMillan for speeding and that McMillan was found to have three plastic bags of white powdery substance in his jacket pocket; Crews did not field test the substance. Crews also recovered a “sizable amount” of currency from McMillan’s pockets, and Crews and other officers recovered other currency that had been thrown out during the chase that led to the traffic stop. At the scene, Crews turned over the bags of suspected contraband to Officer Middleton from the Garden City Police Department. At the same time, Middleton also took possession of an additional baggie of suspected contraband as well as over $6,000 in currency. Middleton weighed but did not field test the suspected contraband. He then took the evidence to the police department, counted the currency, placed the currency into an evidence bag and sealed it; he also placed the small bags containing the suspected contraband into separate evidence bags, sealed them, and initialed over the seal. Middleton turned the bags over to the evidence custodian, Dee Norris. Norris testified that she placed each bag into a second bag that she sealed and initialed; she eventually delivered the bags to the crime lab. The evidence bags were in Norris’s custodial care for at least two-and-a-half weeks.

A1 Jelinski, the Criminal Investigation Division Commander for the Garden City Police Department, testified that he witnessed the GBI scientist cut open the bags identified at trial as Exhibits 21 and 22 in order to test the substances contained therein. Jelinski also brought the two exhibits to court. The GBI scientist testified that the bags were intact and sealed at the time that he cut into them to perform the testing and that there were no visual signs of tampering of either the outer or inner evidence bags. At trial, Middleton identified Exhibits 21 and 22 as containing the evidence bags in which he had placed the suspected contraband and then sealed and marked with his initials, which seal had not been broken. The bags were also marked with the case number and McMillan’s name.

At McMillan’s trial, Norris testified that she pled guilty to taking U. S. currency while working as the evidence custodian for Garden City. She admitted taking the currency out of the currency evidence bags, but she denied ever taking drugs from case files or tampering with any drugs and she specifically denied tampering with either State’s Exhibit 21 or 22. She also testified that the process for handling currency was different than the process for handling drugs and other evidence because currency was deposited in a bank account, which Norris was in charge of handling. She was not caught for years due to a lack of oversight. Because currency confiscated under these circumstances could be returned to the person from whom it was taken if they were acquitted, Norris was asked if she tampered with the drug evidence in order to ensure that the currency would never have to be returned. Norris denied doing so. Norris’s supervisor at the time also testified that there was no evidence that Norris tampered with any drugs in any of the case files.

After presentation of the above evidence, McMillan objected to introduction of Exhibits 21 and 22 based on the evidence that Norris had tampered with case files. The trial court overruled the objection.

To show a chain of custody adequate to preserve the identity of fungible evidence, the State must prove with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The State is not required to foreclose every possibility of tampering; it need only show reasonable assurance of the identity of the evidence. We review the trial court’s decision on the adequacy of the chain-of-custody evidence under an abuse-of-discretion standard.

Decided May 5, 2014

Amy L. Ihrig, for appellant.

Meg E. Heap, District Attorney, Mitchell C. Mobley, Assistant District Attorney, for appellee.

(Citations, punctuation and footnotes omitted.) Maldonado v. State, 268 Ga. App. 691-692 (1) (603 SE2d 58) (2004).

Here, the State presented evidence to show that the evidentiary bags containing suspected contraband that were sealed and initialed by Middleton were not tampered with or cut open until they were opened for the purpose of testing in the GBI lab. The State also presented evidence of the entire chain of custody of those bags from the scene of the traffic stop to trial. Although Norris stole currency, the procedure for handling currency was different from the procedure for other evidence, the currency was contained in separate evidence bags, Norris denied tampering with any drugs, and the investigation into her conduct revealed no evidence of such tampering with drugs. This evidence and the other chain-of-custody evidence cited above shows that the State established with reasonable certainty that Exhibits 21 and 22 contained the substances confiscated from McMillan at the traffic stop and that there was no tampering or substitution. Accordingly, the trial court did not abuse its discretion by admitting Exhibits 21 and 22 over McMillan’s objection. See Mickens v. State, 318 Ga. App. 601, 602 (734 SE2d 438) (2012) (“When there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to the weight.”) (footnote omitted).

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       Norris was charged only with theft of the currency.


author: ANDREWS, Presiding Judge.

text:
    A14A0302.
    STATE OF GEORGIA v. ALONSO et al.
    (758 SE2d 334)
   ANDREWS, Presiding Judge.

The State initiated administrative forfeiture proceedings under OCGA § 16-13-49 (n) against various personal property with a value of less than $25,000 owned by Jacqueline M. Alonso and Brandy N. Espiritu. The trial court dismissed the State’s complaint for forfeiture on the basis that the complaint was not timely filed, and the State appeals. For the following reasons, we find that the trial court erred by dismissing the complaint, and we reverse.

Decided May 5, 2014.

Peter J. Skandalakis, District Attorney, Robert W. Mooradian, Assistant District Attorney, for appellant.

The State seized the property on May 1, 2013, and, pursuant to the administrative procedures set forth in OCGA § 16-13-49 (n), notified owners and interest holders that the property had been seized and was subject to forfeiture, and that they had the right to file a claim setting forth their interest in the property and relief sought. Smith v. State of Ga., 301 Ga. App. 870-871 (690 SE2d 208) (2010); State of Ga. v. Howell, 288 Ga. App. 176, 177-178 (653 SE2d 330) (2007). After Alonso and Espiritu filed timely claims on June 17, 2013, the State filed its complaint on July 10, 2013, seeking in rem forfeiture pursuant to OCGA § 16-13-49 (n) (5) and(o). The trial court dismissed the State’s forfeiture complaint on the basis that the State failed to file the complaint within 60 days from the date of seizure as required by OCGA § 16-13-49 (h) (2).

OCGA § 16-13-49 (h) (2) provides: “Within 60 days from the date of seizure, a complaint for forfeiture shall be initiated as provided for in subsection (n), (o), or (p) of this Code section.” However, subsection (n) sets forth an alternative to immediately filing a civil complaint where the seized property is worth less than $25,000. In such a case, the State may simply provide notice of the seizure and wait for a claimant to file a claim. Then, if a claim to the seized property is filed within 30 days of the notice [as set forth in subsection (n)], the State must file a civil complaint within 30 days of actual receipt of the claim. OCGA § 16-13-49 (n) (5).

State of Ga. v. Profitt, 213 Ga. App. 270 (444 SE2d 356) (1994); Robinson v. State of Ga., 209 Ga. App. 446, 447 (433 SE2d 707) (1993). The State’s complaint filed pursuant to the administrative procedures set forth in OCGA § 16-13-49 (n) seeking forfeiture of seized property valued at less than $25,000 was timely filed within 30 days of receipt of the claims made by Alonso and Espiritu.

Judgment reversed.

McFadden and Ray, JJ., concur.

Jacqueline M. Alonso, pro se.

Brandy N. Espíritu, pro se.

       Alleging that the property was used to facilitate violation of the Georgia Controlled Substances Act, the State seized an automobile, currency and a currency counter, and various computer equipment.


author: McFADDEN, Judge.

text:
    A14A0061.
    TANKSLEY v. THE STATE.
    (758 SE2d 611)
   McFADDEN, Judge.

After a bench trial, the trial court found Milton Tanksley guilty of possession of cocaine. OCGA § 16-13-30 (a). On appeal, Tanksley challenges the sufficiency of the evidence and the effectiveness of his trial counsel. Because the evidence was sufficient and Tanksley has not shown that his trial counsel was deficient, we affirm.

1. Sufficiency of evidence.

When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, “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.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). So viewed, the evidence showed that shortly after midnight on August 7, 2011, Tanksley was a passenger in a vehicle that the police stopped for a tag violation. During the stop, he consented to be searched for weapons. The officer who performed the search noticed on the ground at Tanksley’s feet a pill bottle that had not been there when Tanksley first got out of the vehicle. Tanksley tried to conceal the pill bottle with his feet. The pill bottle contained crack cocaine. Similar transaction evidence showed that, in 2006, Tanksley was found asleep in the driver’s seat of a stopped vehicle, and in the course of investigating that vehicle officers found a pill bottle containing crack cocaine in his pocket.

Tanksley argues that this evidence was insufficient to show that he possessed the cocaine. “The law recognizes that possession can be actual or constructive[.]” Richardson v. State, 305 Ga. App. 850, 852 (700 SE2d 738) (2010) (citation omitted).

A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.

Vines v. State, 296 Ga. App. 543, 545 (1) (675 SE2d 260) (2009) (citations omitted).

Tanksley argues that the only evidence of his possession of the crack cocaine in the pill bottle was his spatial proximity to it. See Davenport v. State, 308 Ga. App. 140, 145 (1) (b) (706 SE2d 757) (2011) (“A finding of constructive possession . . . must be based on a connection between the defendant and the object that is more than spatial proximity.”) (citations omitted). But other evidence also linked Tanksley with the cocaine, namely that the pill bottle containing the cocaine was not on the ground when Tanksley got out of the car, that Tanksley attempted to hide the bottle with his feet during the search, and that in the similar transaction Tanksley had carried on his person a pill bottle containing crack cocaine. This evidence authorized the trier of fact to find that Tanksley had the power and intention to exercise control over the cocaine necessary for constructive possession. See Mallard v. State, 321 Ga. App. 650, 652 (742 SE2d 164) (2013) (evidence supporting finding that defendant had constructive possession of canister containing methamphetamine that was found near her foot included defendant’s attempt to conceal canister and canister’s appearance of having been on the ground only a short time). See also Washington v. State, 251 Ga. App. 206, 209 (1) (553 SE2d 855) (2001) (whether the state has met its burden of showing that circumstantial evidence excludes every other reasonable hypothesis is a question for the finder of fact that will not be disturbed on appeal unless the verdict is unsupportable as matter of law).

2. Effectiveness of trial counsel.

Tanksley argues that he received ineffective assistance of trial counsel because counsel did not make specific objections to the similar transaction evidence. To prevail on this claim, he was required to show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).

Tanksley has not shown that his trial counsel performed deficiently. When the state sought to introduce the similar transaction evidence, trial counsel responded: “I understand what [the state] has proffered to the [c]ourt, and law is law as far as the similarity in the case before the [c]ourt and the one back in 2006. We just would object on general grounds.” The trial court then admitted the evidence to show motive, intent, and bent of mind. See former OCGA § 24-2-2. See generally Peoples v. State, 295 Ga. 44, 52 (4) (b) (757 SE2d 646) (2014) (similar transaction evidence could be offered to prove such things as motive, intent, and bent of mind, among other things, under former Evidence Code). At the motion for new trial hearing, trial counsel testified that she did not more specifically object to the similar transaction evidence because she thought the evidence was admissible, and that she had discussed that issue with Tanksley before trial.

Decided May 6, 2014.

W. Pittman Morris, for appellant.

Dennis C. Sanders, District Attorney, William P.Doupé, Assistant District Attorney, for appellee.

We agree with trial counsel’s assessment of the admissibility of the similar transaction evidence under the law then in effect. “In the consideration of the admissibility of similar transaction evidence, the focus is properly on the similarities, and not the differences, between the act in question and the incident on trial.” Hunt v. State, 288 Ga. 794, 797 (3) (708 SE2d 357) (2011). There are obvious similarities between this case — where Tanksley was accused of possessing crack cocaine in a pill bottle—and the prior incident—where Tanksley was found in possession of crack cocaine in a pill bottle. Trial counsel’s failure to raise a meritless objection was not deficient performance. See Wesley v. State, 286 Ga. 355, 356 (3) (a) (689 SE2d 280) (2010).

Judgment affirmed.

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

       Georgia’s former Evidence Code was in effect at the time of Tanksley’s trial. Under the new Evidence Code, OCGA § 24-4-404 (b) governs the admission of similar transaction evidence.


author: Barnes, Presiding Judge.

text:
    A14A0303.
    DRIVER v. SENE.
    (758 SE2d 613)
   Barnes, Presiding Judge.

Charles R. Driver petitioned the superior court to modify the custody, support, and visitation of his three children, of which Holly E. Sene, his ex-wife, had primary physical custody pursuant to a 2009 final divorce decree. The superior court granted the change of custody as to the oldest child, then 17, based on his election to live with Driver, but denied the petition to change custody of the two younger children, who were 15 and 12 as of the final order. The court also granted attorney fees to Sene. Driver appeals, contending that the superior court erred in not granting him custody based on the election of the 15-year-old to live with his father and on the best interest of the child, in finding he had not carried his burden of proving a material change in the children’s condition warranting a custody change, and in awarding attorney fees to Sene. For the reasons that follow, we affirm the trial court’s custody decision, but reverse the attorney fee award and remand for further proceedings.

From a review of the ten-volume record, including more than 700 pages of transcripts from five days of a final hearing that took place over five-and-a-half months, it is clear that the parties hotly disputed the facts about the children’s welfare. On the day the father filed his petition to modify custody, he also filed a motion for temporary custody, alleging that the children’s stepfather was abusive and they were neglected. The superior court issued an immediate ex parte order transferring the children to the father’s custody, but after a two-day hearing three weeks later the court appointed a guardian ad litem (“GAL”) to represent the two younger boys and transferred them back to the mother’s temporary custody. The court held several hearings and issued interim orders during the ensuing litigation, and then heard five days of testimony.

The petition to modify custody included affidavits from both boys stating that they elected to live with their father, and on the last day of the final hearing, the father submitted additional documents from both boys again stating they elected to live with their father. However, the GAL concluded that it was in the children’s best interest to remain with their mother, as she had historically been the one who had been more involved in their schools and medical care. After hearing evidence and talking to the children after the final hearing, the trial court agreed with the GAL’s assessment and determined that primary physical custody would remain with the mother. The court also ordered the father to pay the mother’s attorney $5,000.

When considering the appeal of a child custody decision, we view the evidence in the light most favorable to the trial court’s decision. Gibson v. Pierce, 176 Ga. App. 287, 288 (335 SE2d 658) (1985).

A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child. The evidence sufficient to warrant a modification of custody can consist of a change in material conditions which have a positive effect on the child’s welfare as well as changes which adversely affect the child. See OCGA § 19-9-3 (b).

(Citations and punctuation omitted.) Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012). “The law thus recognizes that because children are not immutable objects but living beings who mature and develop in unforeseeable directions, the initial award of custody may not always remain the selection that promotes the best interests of the child.” Scott v. Scott, 276 Ga. 372, 373 (578 SE2d 876) (2003). We review a trial court’s decision for abuse of discretion. Viskup, 291 Ga. at 105 (2).

1. The father argues that the superior court erred in failing to grant him custody of his 15-year-old son, M. D., based on the boy’s election. Before the statute was amended effective January 2008, the right of a child 14 or older to select the parent with whom he wanted to live was controlling “unless the parent so selected [was] determined not to be a fit and proper person to have the custody of the child.” OCGA § 19-9-3 (a) (4) (2007). Under the current version of the statute, however, the election of a child 14 or older to live with one parent over the other is presumptive, but the superior court may override the election if it determines that placing the child in the custody of the selected parent is not in the child’s best interest. OCGA § 19-9-3 (a) (5). See Murillo v. Murillo, 300 Ga. App. 61, 64 (684 SE2d 126) (2009).

The record shows that M. D. was diagnosed at a young age with a developmental disorder that is treated with a complicated regimen of medication, specialized education, therapy, and counseling. The parents disagreed about certain aspects of his care and testified extensively on the issue. After a hearing, the superior court granted the father’s motion for the court to conduct an in camera inspection of M. D.’s psychiatric records, and as noted earlier, the trial court also spoke with M. D. The court noted in its final order that neither party requested that it make findings of fact, and therefore the court simply concluded that it was in M. D.’s best interest that his mother be awarded primary physical custody.

The father argues on appeal that while the child’s election is no longer controlling under OCGA § 19-9-3 (a) (5), it is “presumptive,” which he contends is defined by Black’s Law Dictionary as “evidence which must be received and treated as true and sufficient until and unless rebutted by other evidence.” The trial court erred, he contends, in failing to make findings as to the father’s fitness. We disagree.

First, the trial court specifically noted in its temporary and final orders that neither party asked it to make findings of fact. Under OCGA § 19-9-3 (a) (8),

[i]f requested by any party on or before the close of evidence in a contested hearing, the permanent court order awarding child custody shall set forth specific findings of fact as to the basis for the judge’s decision in making an award of custody including any relevant factor relied upon by the judge.

The father did not ask the trial court to make findings of fact, and therefore cannot object to their omission in the final order.

Further, the cases cited by the father for the proposition that the parent resisting a child’s election must prove that the other parent is unfit were all decided under the former version of the statute. See, e.g., Weaver v. Jones, 260 Ga. 493, 494 (3) (396 SE2d 890) (1990); Harbin v. Harbin, 238 Ga. 109, 110 (230 SE2d 889) (1976) (“Without a finding of unfitness the child’s selection must be recognized and the court has no discretion to act otherwise.”).

“A trial court faced with a petition for modification of child custody is charged with exercising its discretion to determine what is in the child’s best interest.” Viskup, 291 Ga. at 105 (2). See OCGA § 19-9-3 (a) (2). In this case, there was some evidence that M. D.’s election was not sincere. The guardian ad litem testified that she thought that the children’s letters to the guardian and the court were written with the assistance of the father and his family, as the letters contained similar phrasing that was not typical of the children’s speech. She said the children had vacillated between their preferences as the litigation wound on. At the end of the last day of the final hearing, the trial court directed the parties not to talk to M. D. about his upcoming interview with the court, noting that in its first interview “all three children almost said the exact words in each interview, each one of them. That’s odd.” Of course, the record does not disclose the substance of the court’s multiple conversations with the children.

Based on the evidence presented at the hearings and the trial court’s consideration of the children’s best interest, we cannot say that the trial court abused its discretion in denying the father’s petition to change custody, despite M. D.’s election to live with his father.

2. The father contends the trial court erred in its application of the best interest of the child standard concerning the custody of M. D. OCGA § 19-9-3 (a) (3) outlines 17 relevant factors the trial court may consider in determining the best interest of the child, and the father argues in great detail the evidence that he contends is proof he would be the better custodial parent. The mother responded with an equally detailed discussion of the evidence and her interpretation of it. As the trial court commented on the last day of the final hearing, both parents believe they were doing the best thing for the children, and the court awarded the parties joint legal custody of the children. The record contains evidence that supports the trial court’s decision, and thus “it cannot be said there was an abuse of discretion.” Anderson, 278 Ga. at 713 (1).

3. In his third enumeration of error, the father asserts that the issue is whether he carried his burden of proof as to a material change in condition of the minor children warranting a change of custody. He argues that M. D.’s decision that he wanted to live with his father constituted “per statute a material change of circumstances or condition of the minor child to warrant a petition of modification of child custody.” While OCGA § 19-9-3 (a) (5) does provide that the parental selection of a child 14 or older may constitute a material change warranting a custody modification, the statute does not provide that the election mandates a custody change. As addressed in Division 1, the child’s election was a factor to be considered by the trial court in ruling on the father’s petition for a change of custody, but it was not the only factor to be considered. For the reasons previously stated, we find no abuse of discretion.

4. Finally, the father contends that the trial court erred in ordering him to pay the mother’s attorney $5,000, arguing that the evidence was insufficient to support the amount and that the court failed to specify the statutory basis for the award.

In her answer to the petition, the mother counterclaimed for attorney fees “for her defense in this action based on [the father] filing this frivolous claim against [her].” Thus, she could have been seeking fees under either OCGA § 9-15-14 (b) (fees allowable against party who brings substantially frivolous action) or under OCGA § 19-9-3 (g) (in custody action, trial court may order reasonable fees to be paid by the parties in proportions and at times determined by court).

When there is more than one statutory basis for the attorney - fee award and neither the statutory basis for the award nor the findings necessary to support an award is stated in the order and a review of the record does not reveal the basis of the award, the case is remanded for an explanation of the statutory basis for the award and the entry of any findings necessary to support it.

(Footnote omitted.) Viskup, 291 Ga. at 106 (3).

Additionally, while the mother’s attorney made a general proffer of evidence regarding the amount of fees incurred to date, she presented no billing records or other evidence showing how she had arrived at that amount. Thus, the evidence was insufficient to determine whether the attorney fees incurred or awarded were reasonable.

When a party seeking attorney fees has failed to present an essential element of proof, but the trial court nevertheless awarded attorney fees, we have consistently reversed or vacated that portion of the judgment awarding the attorney fees and remanded the case to the trial court to hold an evidentiary hearing to allow the party, if possible, to cure the matter.

Decided MAy 6, 2014.

Nancy Val Preda, for appellant.

R. Thomas Tebeau III, Cynthia Maisano, for appellee.

(Citation and punctuation omitted.) Lurry v. McCants, 302 Ga. App. 184, 190 (2) (b) (690 SE2d 496) (2010).

Accordingly, we vacate that portion of the judgment awarding the mother $5,000 in attorney fees and remand this case to the trial court for an evidentiary hearing on the amount of the attorney fees and expenses.

Judgment affirmed in part and reversed in part, and case remanded for further proceedings.

Boggs and Branch, JJ., concur.


text:
    A14A0325.
    BAKER v. THE STATE.
    (758 SE2d 618)
   McFADDEN, Judge.

Emanuel Baker appeals his convictions of possession of oxycodone and possession of methadone. He argues that the trial court erred by denying his motion to suppress drugs seized during a traffic stop because the arresting officer had improperly expanded the stop. We find that the arresting officer’s decision to continue the stop was founded on a reasonable, articulable suspicion. We therefore affirm Baker’s convictions.

Before trial, the trial court conducted a hearing on the motion to suppress and entered a one-sentence, written order denying it. Even without factual findings, however, we construe the evidence most favorably to uphold the judgment, and our “responsibility is to ensure that there was a substantial basis for the decision.” Bryant v. State, 326 Ga. App. 385, 386 (756 SE2d 621) (2014) (citation and punctuation omitted).

Viewed with these principles in mind, the evidence shows that Troy Embrey, a deputy with the Forsyth County Sheriff’s Office, pulled over the pickup truck that Baker was driving for a tag light infraction. As he approached the truck with his spotlight illuminated, Embrey saw the truck’s two passengers bending toward the floorboard, as if they were trying to hide something.

Embrey asked Baker for his driver’s license and noticed that Baker’s hands were shaking severely as he was going through his wallet. Embrey introduced himself to the two passengers. The middle passenger, Baker’s daughter, was engaging and made eye contact, but the other passenger, the daughter’s boyfriend, would not make eye contact, acted nervously and stared straight ahead, even when Embrey spoke to him. Embrey asked Baker to exit the vehicle because there were multiple occupants and separating them was safer, and to show Baker the inoperative tag light. Baker was fidgety when he exited.

Embrey noticed that Baker’s pupils were abnormally constricted, given that it was dark outside, which possibly indicated his consumption of narcotics or narcotic analgesics, so Embrey asked Baker if he had taken any medication. Baker answered that he had taken his prescribed oxycodone earlier in the day; and Embrey, a state-certified drug recognition expert, found this explanation satisfactory. It “matched up perfectly with the constricted pupils.”

Therefore, Embrey continued the detention to investigate whether Baker was a less safe driver because of his consumption of oxycodone. See OCGA § 40-6-391 (a) (2), (b). See generally State v. Beck, 275 Ga. 688 (572 SE2d 626) (2002). Baker agreed to submit to field sobriety evaluations. Although some components of the evaluations indicated that Baker was impaired, Embrey did not feel the results were sufficient to arrest Baker for driving under the influence.

Nonetheless, Embrey suspected “something else.” Although Embrey believed the test results insufficient to establish probable cause for a DUI arrest, the results of Baker’s horizontal gaze nystagmus test were “indicative of potentially some use of a depressant,” not the narcotic oxycodone that Baker said he had taken. Those results, together with Baker’s constricted pupils, his admission of having taken oxycodone, the signs of impairment that were consistent with the use of a drug other than oxycodone, the passengers’ reaching down as if to hide something as Embrey stopped the truck, and the nervousness of Baker and one of the passengers, made Embrey “suspicious that maybe there was something else with the traffic stop. Maybe [Baker] had prescription medication or illegal drugs on his person or in the car or something to extend the traffic stop further.” So Embrey again continued the detention to investigate this possibility.

Embrey asked for and was given Baker’s consent to search the truck and to pat him down for weapons and contraband. Embrey also asked for and was given the consent of the two passengers to pat them down.

A female deputy patted down Baker’s daughter and discovered a small, enameled pill box in her bra, which contained one oxycodone pill and one methadone pill. Baker admitted that the pills were his and that he had given his daughter the pill box to hide.

Baker argues that the trial court erred in denying his motion to suppress the drugs. He contends that Embrey did not have reasonable, articulable suspicion to continue the detention once he had finished dealing with the traffic violation and concluded the driving-under-the-influence investigation and that the consents to the pat-down searches were therefore invalid. We disagree.

Once the purpose of a traffic stop has been fulfilled, the continued detention of a vehicle and its occupants amounts to an additional detention, which “passes muster under the Fourth Amendment when the officer has a reasonable!,] articulable suspicion of other illegal activity.” Harkleroad v. State, 317 Ga. App. 509, 511 (1) (732 SE2d 278) (2012) (citation and punctuation omitted). In this case, there were three detentions: the first detention for the tag light violation, the second detention for the investigation of Baker’s suspected driving under the influence, and the third detention during which Baker and his passengers consented to the searches. Baker does not challenge the legality of the first two detentions. Nor does he question the scope of the pat-down search of his daughter. See Gilbert v. State, 159 Ga. App. 326, 327 (1) (283 SE2d 361) (1981) (defendant had no legitimate expectation of privacy in companion’s clothing and therefore had no standing to challenge seizure of cocaine from her blue jeans). The issue on appeal, therefore, is whether reasonable, articulable suspicion of other illegal activity supports the third detention.

Embrey articulated the reasons he suspected that Baker and his passengers were engaged in illegal activity: Baker’s admission to having taken a narcotic did not explain the signs of his impairment consistent with the use of a depressant; as Embrey stopped Baker’s truck, the passengers reached down as if to hide something; and Baker and one of the passengers were remarkably nervous. Embrey’s

suspicion was not based on mere caprice or hunch, but rather on specific [facts, among others, the results of the horizontal gaze nystagmus test,] that, based on his training as a certified [d]rug [Recognition [e]xpert, led him to believe that [Baker] was under the influence of a controlled substance.

Maloy v. State, 293 Ga. App. 648, 650 (1) (667 SE2d 688) (2008). This suspicion, in conjunction with the evidence of the passengers’ movement and Baker’s and one passenger’s nervousness and the reasonable inferences drawn from this evidence, provided a substantial basis for the trial court’s denial of the motion to suppress. Bothwell v. State, 250 Ga. 573, 578 (4) (300 SE2d 126) (1983) (reasonable suspicion that supports seizure is based on specific and articulable facts and rational inferences from those facts); Bryant, supra, 326 Ga. App. 385. See also Jones v. State, 259 Ga. App. 849, 852 (578 SE2d 562) (2003) (evidence that officer saw defendant reaching under passenger seat while defendant denied doing so, along with defendant’s nervous behavior, justified brief detention).

Decided May 6, 2014.

Mary Erickson, for appellant.

Penny A. Penn, District Attorney, Michael S. Mahoney, Assistant District Attorney, for appellee.

For these reasons, the trial court did not err in denying the motion to suppress, and we affirm Baker’s convictions.

Judgment affirmed.

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


author: MCFADDEN, Judge.

text:
    A14A0347.
    WILLIAMS v. THE STATE.
    (758 SE2d 620)
   MCFADDEN, Judge.

After a jury trial, Lenburg Williams was convicted of two separate burglaries of commercial properties that occurred six days apart in the same neighborhood. He argues that the trial court improperly allowed three law enforcement officers to testify about statements that another trial witness made to them during their investigations, but Williams only objected to one instance of such testimony at trial and in that instance the trial court did not err in overruling his objection. Williams argues that his trial counsel was ineffective in failing to object to the remaining testimony, but some of that testimony was admissible and Williams has not shown he was prejudiced by his trial counsel’s failure to object to the rest of the challenged testimony. Accordingly, we affirm.

1. Facts.

The evidence at trial, viewed in the light most favorable to the verdict, showed thaton September 27,2011, Earnest Rankins encountered a burglar in the automobile repair shop where he worked. The burglar fled, taking some money. Rankins recognized the burglar as someone he had seen often in the neighborhood, and whom at trial he identified as Williams. He reported the burglary to Officer D. L. Ritchie.

Six days later, on October 3, Rankins spotted Williams entering a building on another commercial property in the neighborhood, and he saw a bicycle by the side of the road in front of that property. He called 911, and Officer G. E. Smith met him at a nearby street corner. Shortly thereafter, Williams approached on the bicycle, towing a cart containing scrap metal and copper pipes, and Officer Smith arrested him. Detective R. A. Johnston also responded to the 911 call, and he and Rankins took the items from Williams’s cart to the commercial property where Rankins had seen Williams. There, the owner of that property identified the items from Williams’s cart as her belongings, and she determined that someone had broken into the building on the property and taken some copper pipes from the basement.

2. Testimony to which Williams objected at trial.

Over Williams’s hearsay objection, the trial court allowed Officer Smith to testify that, when he met Rankins at the street corner on October 3, Rankins identified Williams as the man who had burglarized the automobile repair shop six days earlier. Officer Smith testified that Rankins told him the automobile repair shop had been “burglarized on a past date and time, and that that day [October 3] he saw the suspect and he pointed out the suspect to me.” The trial court allowed this testimony because it provided “the reason he responded” to the 911 call.

“Admission of evidence is a matter committed to the sound discretion of the trial court, and the trial court’s evidentiary decisions will not be disturbed on appeal absent an abuse of discretion.” Allen v. State, 292 Ga. App. 133, 134 (1) (663 SE2d 370) (2008) (citation omitted). The trial court did not abuse her discretion in allowing the testimony.

Former OCGA § 24-3-2 provided that “[w]hen, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” Such evidence may be admitted under that Code section “if the conduct and motives of the actor are relevant to the issues on trial.” Alford v. State, 320 Ga. App. 523, 527 (2) (a) (738 SE2d 124) (2013) (citations omitted). Under this rule, an officer may explain his or her conduct in responding to and investigating allegations of criminal behavior. See Stallings v. State, 319 Ga. App. 587, 589-590 (2) (a) (737 SE2d 592) (2013) (trial court did not err in admitting dispatch description of vehicle for limited purpose of explaining officer’s conduct in responding to dispatch call and investigating defendant’s vehicle). While “only in rare instances will an officer’s conduct need to be explained in this way,” Jones v. State, 290 Ga. 576, 580 (5) (722 SE2d 853) (2012) (citation omitted), one such instance is where “ ‘the defense at trial raises questions and concerns about police conduct in the case.’ ” Reeves v. State, 288 Ga. 545, 547 (3) (705 SE2d 159) (2011) (quoting Paul S. Milich, Ga. Rules of Evidence § 17:3 (2d ed.)). In this case, the defense argued at trial that Officer Smith and the other officers determined Williams was the culprit without adequately investigating the burglaries. Because Williams challenged the adequacy of the police investigation, “the [s]tate was allowed to present evidence to explain the reasonableness of the investigation’s focus on [him], including testimony of out-of-court conversations.” Mitchell v. State, 242 Ga. App. 694 (1) (531 SE2d 143) (2000) (citations omitted).

But even if Officer Smith’s testimony was hearsay rather than original evidence, “[i]t is well-settled that, although hearsay, a witnesses] testimony regarding another person’s out-of-court identification of the accused maybe admissible” where “the declarant testifies] and [is] available for cross-examination.” In the Interest of L. J. P., 277 Ga. 135, 135-136 (587 SE2d 15) (2003) (citation and emphasis omitted). See also Hunt v. State, 279 Ga. 3, 5 (4) (a) (608 SE2d 616) (2005) (“Generally, evidence that a witness has previously identified the defendant is admissible even if the witness’s credibility has not been called into question”) (citation omitted). Rankins testified and was cross-examined about his identification of Williams as the automobile repair shop burglar. The trial court did not err in overruling Williams’s objection.

3. Testimony to which Williams did not object at trial.

Williams also challenges the three officers’ testimony about “the remainder of Rankins’s out-of-court statements.” He did not object to this testimony at trial, but he argues on appeal that his trial counsel’s failure to object constituted ineffective assistance of counsel. To sustain this claim, Williams “must show both that counsel’s performance fell below a reasonable standard of conduct and that, but for counsel’s deficient performance, there is a reasonable probability the outcome of the trial would have been different.” Anthony v. State, 275 Ga. App. 274, 279 (6) (620 SE2d 491) (2005) (citation omitted). He has not met this burden. As described below, trial counsel’s failure to obj ect to two instances of the challenged testimony was not ineffective assistance because the testimony was not improper. See Hayes v. State, 262 Ga. 881, 884-885 (3) (c) (426 SE2d 886) (1993) (“Failure to make a meritless objection cannot be evidence of ineffective assistance.”). And the admission of the remaining challenged testimony did not prejudice Williams.

(a) Challenged testimony that was not improper.

(i) Officer Ritchie, who responded to the scene of the automobile repair shop burglary on September 27, testified that Rankins “gave [him] a description of a suspectf.]” In his appellate brief, Williams cites this as an example of hearsay testimony of a prior consistent statement that improperly bolstered Rankins’s later identification of him as the burglar and argues that it did not meet the requirements for the admission of a trial witness’s prior consistent statement articulated by our Supreme Court in Woodard v. State, 269 Ga. 317 (496 SE2d 896) (1998), overruled on other grounds by Bunn v. State, 291 Ga. 183 (728 SE2d 569) (2012). The Woodard requirements, however, do not apply to Officer Ritchie’s testimony that Rankins described the burglar. The officer testified only that Rankins had given him a description; he did not testify to the substance of that description. Consequently, the testimony was not hearsay. See Page v. State, 256 Ga. 191, 192 (5) (345 SE2d 600) (1986) (witness’s testimony that she had a conversation with another person was not hearsay where the contents of that conversation were not revealed). Because it was not hearsay, it was not subject to the Woodard requirements governing the admissibility of prior consistent statements. See Atwell v. State, 293 Ga. App. 586, 589 (2) (b) (667 SE2d 442) (2008).

(ii) In her cross-examination of Officer Smith, defense counsel suggested that the officer arrested Williams without adequately investigating either burglary. On redirect, the state asked Officer Smith why he made the arrest, and the officer replied that Rankins “advised that [Williams]... was the suspect that — that burglarized [the automobile repair shop], and at that day and time, on [a nearby street], [Rankins] saw him riding a bicycle, and he positively identified him, and that was — that’s what I responded to.” Like the similar instance of Officer Smith’s testimony discussed in Division 2, supra, this testimony was admissible because Rankins testified and was cross-examined.

(b) Other testimony regarding Rankins’s statements to police officers.

Regarding the remaining instances where the police officers testified about statements that Rankins made to them, Officer Ritchie testified that Rankins told him he had come into contact with the automobile repair shop burglar, that the burglar had fled, and that the burglar had taken five dollars. And Detective Johnston, when asked by the state whether he had investigated the October 3 burglary, testified: ‘Tes, sir. Mr. Rankins observed the defendant at an address off of [a neighborhood street]. There was some metal that was in a cart. Mr. Rankins advised he believed that’s where the metal came from[.]” Detective Johnston then described accompanying Ran-kins in taking the metal back to the commercial property. Williams argues that trial counsel should have objected to the testimony about Rankins’s prior consistent statements as hearsay that served to impermissibly bolster his trial testimony. Pretermitting whether trial counsel was deficient in failing to object, Williams has not shown that the admission of this testimony prejudiced him. See Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004) (insufficient showing on either prong required for finding of ineffective assistance of counsel relieves appellate court of need to address other prong).

To establish prejudice, a defendant must demonstrate that “a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.” Coleman v. State, 286 Ga. 291, 297 (6) (687 SE2d 427) (2009) (citation omitted). In determining whether the admission of evidence about Rankins’s prior consistent statements contributed to the verdict, “we may not rely on the fact that [he] gave testimony at trial that was consistent with the prior statement that should not have been introduced, as the very nature of the error in admitting the prior consistent statement is that it is repetitive of that to which [he] has ... testified.” Duggan v. State, 285 Ga. 363, 366-367 (2) (677 SE2d 92) (2009) (citation and punctuation omitted). Instead, in determining the harmfulness of the statements’ admission (and thus the prejudice to Williams from his counsel’s failure to object to them), we must consider factors such as whether the state’s case was based primarily on the bolstered testimony, see Connelly v. State, 295 Ga. App. 765, 768 (3) (673 SE2d 274) (2009), and whether the improper bolstering added critical weight to that testimony. See Cash v. State, 294 Ga. App. 741, 746 (669 SE2d 731) (2008).

As discussed in Division 3 (a) (i), supra, Officer Ritchie’s statement that Rankins had given him a description of the automobile repair shop burglar was not hearsay. And the remaining portions of Officer Ritchie’s testimony about what Rankins told him — that Rankins had contact with the burglar, that the burglar fled, and that the burglar took money — concerned matters that Williams did not dispute at trial. Williams merely argued that he was not that burglar. Consequently, “any improper bolstering of [Rankins’s] testimony by [Officer Ritchie’s] hearsay testimony had no real effect on [Williams’s] conviction! ]” for the September 27 burglary. Johnson v. State, 289 Ga. 498, 502 (4) (713 SE2d 376) (2011).

Decided May 6, 2014.

Brandon A. Bullard, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

As to the October 3 burglary, the state did not base its case primarily on the bolstered testimony that Rankins had seen Williams at the commercial property and believed the metal in Williams’s cart came from that property. It based its case primarily on the testimony of the property’s owner, who stated at trial that the property had been burglarized and that the items found in Williams’s cart belonged to her. Again, “any improper bolstering of [Rankins’s] testimony by [Detective Johnston’s] hearsay testimony had no real effect on [Williams’s] conviction[ ]” for the October 3 burglary. Johnson, 289 Ga. at 502 (4).

Judgment affirmed.

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

       Former OCGA § 24-3-2 was in effect when this case was tried in 2012, but it since has been repealed and replaced with OCGA § 24-8-801 (c). See State v. Hodges, 291 Ga. 413, 422 (2) & n. 5 (728 SE2d 582) (2012) (Nahmias, J., concurring specially).


text:
    A14A0021.
    TAYLOR v. THE STATE.
    (758 SE2d 629)
   McFADDEN, Judge.

Edgar Taylor appeals his convictions of aggravated assault and possession of a firearm during the commission of a felony. We find the evidence sufficient to sustain Taylor’s convictions. He argues that the verdicts are inconsistent with not guilty verdicts of malice and felony murder, but his case does not fall into the rare exception to the abolition of the inconsistent verdict rule. He argues that his convictions are barred by the principles of collateral estoppel, but the not guilty verdicts came in the same trial as the guilty verdicts, not a previous trial, so collateral estoppel does not apply. As the trial court was not required to instruct the jury on simple assault in connection with its instruction on aggravated assault, there is no merit to Taylor’s argument that its failure to do so was plain error. We therefore affirm.

1. Sufficiency of the evidence.

When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, “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.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [sjtate’s case, the jury’s verdict willbe upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citations and punctuation omitted).

Viewed in this light, the evidence shows that Taylor sold alcoholic drinks from his home. The victim, Elijah Huff, and his girlfriend, Elaine Rozier, would visit Taylor’s home when they wanted a drink. On the day of the incident, Huff and Rozier went to Taylor’s residence to drink and to ask him to repay a loan they had made him when his disability check was stolen. Taylor said he would not repay the loan. Rozier left the residence without Huff, but before she reached the curb, she heard two shots. She looked back toward Taylor’s residence. Huff was in the doorway, saying Taylor had shot him. Huff died from his wound.

Rozier testified that there had been no threats or arguments before she left. But two months before, Taylor had shown her and Huff a gun. Taylor had said he purchased the gun especially for Huff, who, when Taylor would not repay the loan, had reported to police that Taylor was selling drinks from his residence. Nonetheless, on the day of the shooting Rozier had expected no trouble because Huff had told her that he had worked it out with Taylor.

Taylor told the police that he had shot Huff, had meant to shoot him, and he would have shot him again, had he been able. Taylor’s residence did not look as if a struggle had occurred, and Taylor told police that Huff had not touched him, nor did he see Huff with a weapon.

A person commits the offense of aggravated assault “when he or she assaults ... [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 § 16-5-21 (a) (2). Aperson commits the offense of possession of a firearm during the commission of a felony when that person has “on or within arm’s reach of his or her person a firearm . .. during the commission of, or the attempt to commit... [a]ny [felony] crime against or involving the person of another.” OCGA § 16-11-106 (b) (1). The evidence is sufficient to support Taylor’s convictions under these statutes.

2. Inconsistent verdict.

Taylor argues that the jury’s finding him not guilty of malice murder and felony murder is inconsistent with its finding him guilty of aggravated assault and possession of a firearm during the commission of a felony. He acknowledges that Georgia has abolished the inconsistent verdict rule, under which “inconsistent verdicts in irreconcilable conflict in criminal cases warrant[ ] reversal.” Turner v. State, 283 Ga. 17, 20 (2) (655 SE2d 589) (2008) (citation omitted). But he argues that his case falls into the rare exception that “reversal of an inconsistent verdict may occur . . . where, instead of being left to speculate as to the jury’s deliberations, the appellate record makes transparent the jury’s rationale.” Guajardo v. State, 290 Ga. 172, 174 (2) (718 SE2d 292) (2011). We disagree.

Taylor argues that it is clear that the jury found him not guilty of malice murder and felony murder because it found that his actions were justified. In support of his contention that the jury’s rationale is transparent, Taylor points to the facts that the trial court instructed the jury extensively on justification and that during its deliberations, the jury sent a note to the judge that asked, “The jury would like to know — if we believe it’s self defense, does that negate the charge of felony murder?” After allowing the state and Taylor to suggest their preferred responses to the question, the trial court responded in writing to the jury, “The jury has been provided all law that is applicable to this case and should continue its deliberations with the goal of reaching a unanimous verdict on all counts.”

Taylor argues that the jury’s question makes clear that it found him not guilty of malice murder and felony murder because it found his actions to be justified. We disagree. In Guajardo, supra, 290 Ga. at 174-175 (2), our Supreme Court held that a “jury’s question regarding whether it was possible to find appellant not guilty on a malice murder count due to self-defense, but still find him guilty on other counts,” did not expose the jury’s rationale for acquittal and its inconsistency with the guilty verdicts. We observe that in this case, at the time they were discussing proposed responses to the jury’s question, defense counsel, the assistant district attorney, and the court all acknowledged that the question did not elucidate the jury’s rationale. “The jury’s question[ ] to the trial court during its deliberations [is] not sufficient to make its reasoning transparent, and we will not engage in speculation or unauthorized inquiry regarding its deliberations.” Id. at 175 (2).

3. Collateral estoppel.

Taylor argues that the jury’s not guilty verdicts conclusively decided the question of whether he committed an aggravated assault with a firearm. Consequently, he argues, collateral estoppel bars his convictions of aggravated assault and possession of a firearm during the commission of a felony. Collateral estoppel is “inapplicable because [it] require[s] a previous action between the same parties, and the [not guilty verdicts] came in the same action now on appeal.” State v. Mizell, 288 Ga. 474, 478 (3) (705 SE2d 154) (2010) (citation omitted).

Decided May 7, 2014.

Nancy B. Miller, for appellant.

Julia Fessenden Slater, District Attorney, Robert B. Bickerstaff II, Wesley A. Lambertus, Assistant District Attorneys, for appellee.

4. Jury charge.

Taylor argues that the trial court committed plain error by failing to charge the jury on simple assault to complete the definition of aggravated assault. We disagree.

Where, as here, . . . the jury has already been properly instructed on general intent and there is no question regarding the perpetrator’s intent in shooting the victim ..., there is no need for the trial court to instruct the jury on simple assault in connection with its charge on aggravated assault.

Cantera v. State, 289 Ga. 583, 586 (2) (713 SE2d 826) (2011) (citation omitted).

Judgment affirmed.

Andrews, P. J., concurs. Ray, J., concurs fully in Divisions 1, 3 and 4 and in the judgment only in Division 2.


author: Miller, Judge.

text:
    A14A0218.
    RICKS v. THE STATE.
    (758 SE2d 624)
   Miller, Judge.

Following his conviction for burglary (OCGA § 16-7-1 (a) (2009)), Billy Ricks appeals from the denial of his motion for new trial, contending that the trial court erred in admitting similar transaction evidence, the circumstantial evidence was insufficient to sustain his conviction, and he received ineffective assistance of counsel. For the reasons that follow, we affirm.

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

(Citation omitted.) Hill v. State, 298 Ga. App. 677 (1) (680 SE2d 702) (2009).

So viewed, the evidence shows that in September 2009, Stacy White and her husband went out of town. While the couple was away, White’s uncle checked in on their house in Emanuel County twice a day. On the afternoon of September 10, 2009, White’s uncle drove by the house and noticed that the front door was kicked in. The doorjamb had been broken and the screws from the dead bolt had been pushed out of the door as a result of the forced entry.

The uncle called White, who was on her way home, and waited for White to arrive. At some point, the police were called, and they arrived at the house before White. When White arrived at her house, she noticed that her 32-inch television, DVD/VCR combo, two watches, jewelry, and camcorder had all been taken. The investigating officer attempted to obtain fingerprints from the door jamb and from other areas inside the house where items had been removed, but he was unsuccessful.

The next day, the investigating officer went to a pawn shop located a few miles from White’s house. Upon entering the pawn shop, the officer observed a television and DVD/VCR combo located on the front counter. The officer called White, who then drove to the pawn shop and positively identified the items as having been stolen from her house. The owner of the pawn shop did not initially remember the name of the person who brought in the stolen items, but he later called the investigating officer and identified Ricks as the person who had pawned White’s property. Ricks had told the pawn shop owner that he had bought the stolen property from an unidentified Mexican man. The investigating officer made several unsuccessful attempts to locate Ricks.

On November 10, 2009, a Jefferson County Sheriff’s Deputy was traveling along a road in Louisville, Georgia when a mailman flagged him down and stated that there was a suspicious vehicle at a residence called the “sheriff’s old place.” The deputy went to the residence to investigate and, upon arriving there, he saw only one vehicle, a Jeep, in the yard. Shortly thereafter, the deputy saw Ricks coming out of the house. The deputy asked Ricks what he was doing at the house, and Ricks replied that he went to the house to see a man by the name of “Mr. Coursey.” The deputy then asked Ricks for identification, but Ricks was unable to provide any. The deputy became suspicious of Ricks because there had been several burglaries in the area, Ricks could not produce identification, and the deputy knew that “Mr. Coursey” did not live at the “sheriff’s old place.” The deputy decided to pat down Ricks for weapons, whereupon Ricks pushed the officer and ran off into the woods. The deputy called for assistance, and Ricks was apprehended approximately three hours later. During a search of Ricks’s Jeep, officers found burglary tools, gloves, and items taken during a burglary of a residence that occurred on the previous day.

1. Ricks contends that the trial court erred in admitting similar transaction evidence. Specifically, Ricks challenges only the admission of an unindicted burglary offense that occurred on November 9, 2009, 3*arguing that the unindicted offense was not similar to the present offense and the relevance of the similar transaction was far outweighed by its prejudicial effect. Ricks’s claim has no merit.

We review the trial court’s decision to admit similar transaction evidence for any abuse of its discretion and the trial court’s factual findings as to the similarity of the incidents under a clearly erroneous standard. Holloman v. State, 291 Ga. 338, 343 (6) (729 SE2d 344) (2012). Before evidence of another crime maybe admitted as a similar transaction, “the trial court must hold a hearing where the [S]tate bears the burden of showing that the evidence of similar transactions is admissible under the three-prong test.” (Footnote omitted.) Wright v. State, 313 Ga. App. 829, 831 (1) (a) (723 SE2d 59) (2012). Specifically, the State must show

that it is seeking to introduce the evidence for a permissible purpose; there is sufficient evidence that the accused committed the independent offense or act; and there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

(Punctuation and footnote omitted.) Mattox v. State, 287 Ga. App. 280, 282 (1) (651 SE2d 192) (2007). “When considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crimes and the crimes in question.” (Citation omitted.) Gaudlock v. State, 310 Ga. App. 149, 152 (2) (713 SE2d 399) (2011).

Here, the trial court properly concluded that the November 9, 2009 burglary was admissible to show Ricks’s bent of mind, intent, and motive given that he claimed to have received the stolen items. There is sufficient evidence that Ricks committed the November 9, 2009 burglary because the stolen items were recovered from his vehicle after he was found to have burglarized another residence on November 10, 2009. Additionally, in both the present offense that occurred on September 10, 2009 and the November 9, 2009 burglary, the incidents occurred during the day while the victims were away, entry was made through a doorway by the use of force, and items were strewn about the residences. When, as here, “similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity.” (Footnote omitted.) Mattox, supra, 287 Ga. App. at 282 (1). Given the similarities between the present offense and the November 9, 2009 burglary, we cannot say that the trial court abused its discretion in admitting the similar transaction evidence. See Carter v. State, 269 Ga. App. 363, 365 (604 SE2d 210) (2004) (trial court did not abuse its discretion in admitting prior burglary where offense occurred around same time of day as charged offense, entry was gained by forcing open a door, and defendant exited the door he entered).

2. Ricks next contends that the circumstantial evidence was insufficient to sustain his conviction. We disagree.

“Aperson commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another[.]” Former OCGA § 16- 7-1 (a). “Evidence of recent, unexplained possession of stolen goods may be sufficient to give rise to an inference that the defendant committed the burglary.” (Citation, punctuation and footnote omitted.) Chambers v. State, 288 Ga. App. 550, 551 (654 SE2d 451) (2007).

For a conviction based on circumstantial evidence to stand, the facts must prove not only the hypothesis of guilt, but must exclude every other reasonable hypothesis but the guilt of the accused. Circumstantial evidence must exclude only reasonable hypotheses save the defendant’s guilt; it need not exclude every other inference or hypothesis except the defendant’s guilt.

(Punctuation and footnotes omitted.) Smith v. State, 309 Ga. App. 466, 468 (710 SE2d 654) (2011). Whether the circumstances are sufficient to exclude every reasonable hypothesis except that of the defendant’s guilt is a jury question, and we will not disturb the jury’s finding unless the verdict is insupportable as a matter of law. Id.

Here, the evidence shows that shortly after the September 10, 2009 burglary, Ricks pawned some of the items stolen in that burglary, and he claimed to have received the stolen items from an unidentified Mexican male. Moreover, Ricks was convicted of or charged with at least two similar transactions, and during one incident burglary tools were found in his Jeep. Accordingly, the jury was authorized to conclude that Ricks committed the burglary in question. See Chambers, supra, 288 Ga. App. at 551 (it is for the jury to determine whether a defendant’s recent possession of stolen goods was satisfactory, and the jury’s rejection of the defendant’s explanation, by way of a guilty verdict, will support a conviction for burglary based upon recent possession of stolen goods); Davis v. State, 275 Ga. App. 714, 715-716 (1) (621 SE2d 818) (2005) (affirming burglary convictions based upon evidence that defendant pawned the stolen items within several hours of the burglaries as well as evidence of similar transactions).

3. Ricks contends that his trial counsel was ineffective for failing to investigate witnesses that would corroborate his explanation that he received the stolen items from a Mexican male. We disagree.

In order to prevail on a claim of ineffective assistance, [Ricks] must show that counsel’s performance was deficient and that the deficient performance so prejudiced [Ricks] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [Ricks] must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, an appellate court gives deference to the lower court’s factual findings, which are upheld unless clearly erroneous; the lower court’s legal conclusions are reviewed de novo.

Decided May 7, 2014.

W. Rocky Adams, for appellant.

S. Hayward Altman, District Attorney, MaryK. McKinnon, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Hampton v. State, 279 Ga. 625, 626-627 (619 SE2d 616) (2005).

At the motion for new trial hearing, trial counsel testified that Ricks told her that he received the stolen items from a Mexican male, and that she asked Ricks multiple times as to how to locate this person. Counsel stated that while Ricks gave her a general idea that this Mexican male would sell items “on the side of the road down in Metter[, Georgia],” she had no specific description of this person, his residence, or the type of vehicle he was driving. Although Ricks testified at the new trial hearing that he did provide such specific information to counsel, the trial court was authorized to reject this testimony and, instead, believe trial counsel’s testimony that Ricks failed to provide a means for locating the purported burglar. See Pattillo v. State, 304 Ga. App. 344, 345 (696 SE2d 370) (2010) (ruling that a trial court is authorized to disbelieve a defendant’s self-serving testimony in favor of counsel’s testimony in deciding a claim of ineffective assistance of counsel). Consequently, Ricks has not shown that trial counsel was deficient in failing to investigate or locate this unidentified Mexican male.

Moreover, while Ricks contends that his girlfriend could corroborate his story about how he obtained the stolen items, his girlfriend did not testify at the motion for new trial hearing and he did not present a legally acceptable substitute to substantiate his claims that her testimony would have been favorable to his defense. As a result, Ricks cannot meet his burden of establishing his ineffective assistance claim. See Lupoe v. State, 284 Ga. 576, 578-579 (3) (b) (669 SE2d 133) (2008); Damerow v. State, 310 Ga. App. 530, 540-541 (4) (d) (714 SE2d 82) (2011). Accordingly, we affirm.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

       Although the indictment alleged that the offense occurred in September 2010, the parties stipulated that the offense occurred in September 2009.

       Although Ricks had not yet been indicted for the November 9, 2009 offense at the time of his trial, and was subsequently acquitted of the offense, “[i]t is well settled that there need not be a criminal charge or conviction relating to a similar offense for it to be admissible.” Hill, supra, 298 Ga. App. at 680 (2).

       Ricks does not challenge the admission of his conviction for the burglary that occurred on November 10, 2009 as similar transaction evidence. Ricks pled guilty to that burglary.

       Although the trial court conducted a similar transaction hearing prior to trial, it also conducted a post-trial hearing to cure any deficiencies in failing to make adequate findings. See Betancourt v. State, 322 Ga. App. 201, 211 (4) (a) (i), n. 37 (744 SE2d 419) (2013) (post-trial hearing cured any alleged error in pretrial hearing); Brown v. State, 307 Ga. App. 99, 103 (2) (b) (704 SE2d 227) (2010) (providing that trial court may conduct a post-trial similar transaction hearing). Ricks does not challenge the trial court’s procedure on appeal.


text:
    A14A0657.
    THE STATE v. CARRION.
    (758 SE2d 632)
   Miller, Judge.

In April 1989, Pedro Acevedo Carrion pled guilty to carrying a pistol without a license (OCGA § 16-11-126) and carrying a concealed weapon (former OCGA § 16-11-128). Twenty-four years later, Carrion filed a motion in state court seeking to withdraw his plea on the basis that it was neither knowing nor voluntary. The trial court granted Carrion’s motion, and the State appealed. Although we find that there was no showing of a knowing and voluntary plea which would normally require a dismissal of the charges, we reverse because we find that the trial court here, twenty-four years later, was without authority to grant Carrion’s motion.

In October 2013, after immigration officials detained Carrion, who is a legal permanent resident of the United States, he filed a “Motion for Extraordinary Relief Writ of Coram Nobis” in Clayton County State Court, asking the court to vacate his guilty plea. Carrion argued that his guilty plea was neither knowing nor voluntary because he did not speak or understand English and therefore could not understand the charges against him or appreciate the consequences of his plea. Following a hearing, the trial court granted Carrion’s motion, vacated his conviction, and dismissed the underlying charges, finding that the record did not show that Carrion made a knowing and voluntary waiver of his rights.

Apetition for writ of error coram nobis is an obsolete writ, and its use is discouraged. See Harris v. State, 269 Ga. App. 92, 93 (1) (603 SE2d 490) (2004).

However, as it is the ancestor of an extraordinary motion for new trial based on newly discovered evidence, the prerequisites for issuing a writ of error coram nobis or for granting an extraordinary motion for new trial based on newly discovered evidence appear to be identical. Before a court authorizes either, it is generally required that the moving or petitioning party base the pleading on facts which are not part of the record and which could not by due diligence have been discovered at the time of the trial.

(Citation omitted.) Seabrook v. State, 315 Ga. App. 801, 802 (728 SE2d 322) (2012).

Here, Carrion failed to point to any newly discovered evidence that would have authorized the trial court to grant the writ. Carrion’s limited understanding of English was evidence that was known to Carrion at the time he entered his plea. Seabrook, supra, 315 Ga.App. at 802. Moreover, OCGA § 17-7-93 (c), which requires trial courts to advise defendants of the possible immigration consequences of their guilty pleas was not enacted until 2000 — some 11 years after Carrion entered his guilty plea — and only applies to pleas entered on or after July 1, 2000. Ga. L. 2000, p. 809, § 2.

Decided May 7, 2014.

OCGA § 17-7-93 (c) is the only source of a requirement that a defendant be advised of the possible effect of a plea on immigration status. A resident alien’s guilty plea is not rendered involuntary by the fact that [he] was unaware that [he] might be deported because the effect of the plea on [his] immigration status is deemed a collateral consequence of the plea. A guilty plea will not be set aside because the defendant is not advised of possible collateral consequences of [his] guilty plea.

(Citations and punctuation omitted.) McLeod v. State, 251 Ga. App. 371, 372 (1) (554 SE2d 507) (2001). Therefore, Carrion could not challenge the plea under a writ of error coram nobis. We also note that this situation could not take place under the law today.

Even if we were to consider Carrion’s motion as one to withdraw his guilty plea, he is still not entitled to relief. The trial court’s authority to grant a motion to withdraw a guilty plea ends with the term of court in which the judgment of conviction is entered. State v. Kight, 175 Ga. App. 65, 66 (1) (332 SE2d 363) (1985); see also Harris, supra, 269 Ga. App. at 93 (1). Since Carrion filed his motion more than 20 years after the expiration of the term of court in which the judgment of conviction on the plea was entered, the trial court had no authority at this time to grant the motion. Seabrook, supra, 315 Ga. App. at 803.

Finally, it is well settled that “after the expiration of the term of court in which a guilty plea is entered and [after] the time for filing an appeal from the conviction, the only remedy available to a defendant for withdrawing his guilty plea is through habeas corpus proceedings.” (Citation and punctuation omitted.) Wech v. State, 255 Ga. App. 193 (564 SE2d 814) (2002). Since the trial court here was not a superior court, however, it lacked jurisdiction to treat defendant’s motion as a habeas corpus proceeding. State v. Johnson, 222 Ga. App. 156 (473 SE2d 593) (1996). See also OCGA § 9-14-43. Accordingly, the trial court erred in granting Carrion’s motion.

Judgment reversed.

Doyle, P. J., and Dillard, J., concur.

TashaM. Mosley, Solicitor-General, ShalondaJones-Parker, Assistant Solicitor-General, for appellant.

Rebeca E. Salmon, for appellee.

       There is no transcript of the 1989 proceedings, however, the plea statement Carrion signed indicated that he was provided with an interpreter.


text:
    A14A0677.
    ADAMS v. THE STATE.
    (758 SE2d 831)
   Miller, Judge.

Following a jury trial, Christopher Adams was convicted of one count of armed robbery (OCGA § 16-8-41 (a)). Adams appeals from the denial of his motion for a new trial, contending that: (1) the trial court erred by not allowing defense counsel to cross-examine one of the victims about a previous bad act, which denied the defendant the opportunity to impeach the witness; (2) the trial court imposed a vindictive sentence after exercising his right to jury trial; (3) his trial counsel was ineffective; and (4) the verdict is contrary to law and the principles of justice and equity. For the reasons that follow, we affirm.

On appeal, we construe the evidence favorably to the jury’s verdict. We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the jury was authorized to find [Adams] guilty beyond a reasonable doubt. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citation and punctuation omitted.) Williams v. State, 312 Ga. App. 22 (717 SE2d 532) (2011).

So viewed, the evidence shows that on or about November 4 and 5,2009, Adams bought a vinyl Halloween mask and a blue aluminum baseball bat at a Wal-Mart. Thereafter, on the morning of November 5, Adams parked the vehicle he was driving at an unmanned electrical substation off of Hicks Road in Cobb County, Georgia. From there, Adams put on the Halloween mask and walked with the bat to the CVS store at the corner of the East/West Connector and Hicks Road. Adams walked inside the store, put the bat on his shoulder, and ordered the CVS employees to give him all of the money out of the register. Adams then shook the bat and yelled at the employees to hurry. One of the employees also saw something protruding out of Adams’s sweat shirt that he believed to be a gun or other weapon. The employee emptied the register and put approximately $135 in a white plastic CVS bag that he then gave to Adams.

Adams then left the store, and the employee called 911. The employee told dispatch that Adams was running through a field behind the CVS building. A responding police officer received a detailed description of Adams, which he relayed to other officers. Around this time, Officer Matthew Owen was driving on Hicks Road toward the CVS when he passed a vehicle parked at the electrical substation. Officer Owen thought the vehicle was suspicious, and he made a U-turn to investigate. At that time, Officer Owen saw Adams walking out of the field from the direction of the CVS. Officer Owen observed that Adams matched the description of the CVS robber and that he was carrying a white bag, a vinyl mask, and a blue baseball bat. Officer Owen exited his patrol car, drew his weapon, and told Adams to drop his weapons and lie on the ground. Adams dropped everything he was carrying and laid on the ground. Officer Owen then radioed other officers that he had a possible suspect.

After other officers arrived, Adams was handcuffed, and during a pat-down search, police officers recovered a stun gun in the pocket of Adams’s sweatshirt. Officers also found the following items on or near Adams: a Halloween mask, a blue baseball bat, receipts for the mask and bat, and a white plastic CVS bag containing approximately $136. After being advised of his rights, Adams admitted that he robbed the CVS.

At trial, Adams admitted that he committed the robbery, but submitted that he was not armed. In particular, Adams testified that he never swung or moved the bat off of his shoulder, and that the stun gun was not in his pocket while he was inside the store.

1. Adams contends that the trial court erred in preventing him from impeaching the CVS store employee who emptied the cash register and gave Adams the money. Specifically, Adams wished to impeach the employee with evidence that the employee’s employment with CVS ended because he committed theft. We disagree.

At the trial, the former employee stated that he began working at CVS because his work in real estate had declined. During cross-examination, the former employee testified that he left CVS because he wanted to return to real estate. When asked by defense counsel whether the former employee left voluntarily, the former employee stated that it was a mutual decision. Defense counsel then asked the former employee whether he had been accused of any wrongdoing. The former employee asked the trial court whether he was required to answer, and the State argued that the reason for the employee’s departure was not relevant. The trial court then excused the jury, and asked the former employee to answer defense counsel’s question. The former employee stated that he became disgruntled with his pay and, as a form of protest, he would eat snacks without paying for them and that he would do this in front of the store video camera. The former employee told management of his actions and the reasons for his actions, and they mutually decided that it was best if the employee resigned. The former employee stated that CVS “technically could have gotten [him] for theft or something,” although no charges were ever filed against him. Defense counsel argued that he should be allowed to introduce evidence of the former employee’s theft because he could use the prior bad act to impeach the witness. The judge permitted defense counsel to ask the employee if there were other reasons for leaving CVS, but the trial court did not allow defense counsel to bring up any prior bad acts.

[T]rial courts retain wide latitude to impose reasonable limits on cross-examination .... The permissible scope of cross-examination is committed to the sound discretion of the trial court, and we review a limitation of the scope of cross-examination only for abuse of discretion.

(Citations and punctuation omitted.) Nicely v. State, 291 Ga. 788, 796 (4) (733 SE2d 715) (2012).

Generally, a victim, such as the employee at issue, may not be impeached with instances of specific misconduct or prior bad acts. Allen v. State, 275 Ga. 64, 68 (3) (561 SE2d 397) (2002); see also Wise v. State, 321 Ga. App. 39, 44 (3) (740 SE2d 850) (2013). Adams argues that the trial court was required to allow him to cross-examine the employee about his admitted theft under former OCGA § 24-9-84.1 (a) (3). That section provided, however, that “[e]vidence that any witness . . . has been convicted of a crime shall be admitted if it involved dishonesty or making a false statement, regardless of the punishment that could be imposed for such offense.” Adams did not submit proof that the employee was convicted of, much less charged with, a crime for failing to pay for the snacks. See Woods v. State, 269 Ga. 60, 63 (4) (495 SE2d 282) (1998) (a witness is successfully impeached with a prior conviction by tendering into evidence certified copies of the witness’s prior convictions). Consequently, the testimony regarding such specific bad acts was not admissible for impeachment purposes. See Wetta v. State, 217 Ga. App. 128, 130 (3) (456 SE2d 696) (1995) (proffered testimony not admissible because it related solely to a specific bad act). Accordingly, the trial court did not abuse its discretion in limiting Adams from cross-examining the former employee about prior bad acts.

2. Adams next contends that the trial court acted vindictively by giving him a greater sentence after the jury found him guilty than he would have received if he had accepted the State’s plea offer. Adams’s contention has no merit.

There is no evidence that the trial court acted in a vindictive manner in sentencing Adams. Contrary to Adams’s suggestion otherwise, there is no presumption of vindictiveness when a trial court imposes a greater penalty after trial than it would have after a guilty plea. Townes v. State, 298 Ga. App. 185, 189 (679 SE2d 772) (2009). This Court has long recognized that a trial court does not engage in unconstitutional “vindictiveness” by imposing a harsher sentence following a jury trial than may have been imposed if the defendant had accepted a plea bargain. Allen v. State, 193 Ga. App. 670, 671-672 (388 SE2d 889) (1989). In imposing a harsher sentence following trial, the trial court is “merely following through on the inevitable and permissible threat which is implicit in any plea bargain situation — that rejection of the plea bargain may diminish or destroy the very rationale for the imposition of a lenient sentence.” (Citation and punctuation omitted.) Id. at 671.

3. Adams next contends that his trial counsel was ineffective for not insisting on a ruling by the trial court on his objection to the verdict form regarding the insertion of the word “or” between the first option to find him guilty of armed robbery and the second option to find him guilty of robbery by intimidation. Adams also asserts that trial counsel was ineffective for failing to renew his objection after the jury charge. We disagree.

To establish an ineffective assistance of counsel claim, the defendant must show that counsel’s performance was deficient and the deficient performance prejudiced the defense. There is a strong presumption that counsel’s conduct falls within the range of sound trial strategy and reasonable professional judgment.

(Citations omitted.) Bright v. State, 292 Ga. 273, 274 (2) (736 SE2d 380) (2013). In reviewing a trial court’s ruling on an ineffective assistance claim, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citations and punctuation omitted.) Holloman v. State, 293 Ga. 151, 154 (4) (744 SE2d 59) (2013). “[Djecisions of when and how to raise objections are generally matters of trial strategy[.]” (Footnote omitted.) Holmes v. State, 271 Ga. App. 122, 124 (3) (608 SE2d 726) (2004).

Adams did not call his trial counsel to testify at the motion for new trial hearing. Without trial counsel’s testimony, there is no evidence in the record as to why counsel did not insist on a ruling on his objection or renew his objection after the jury charge. See Sanders v. State, 283 Ga. 372, 374 (2) (a) (659 SE2d 376) (2008). Therefore, Adams has failed to overcome the strong presumption that counsel’s actions fell within the range of reasonable trial strategy. See Holmes, supra, 271 Ga. App. at 124 (3).

Even if trial counsel was deficient in the manner alleged, Adams has failed to establish prejudice. In its charge to the jury, the trial court read the single count of armed robbery and provided the elements for armed robbery and the lesser included offense of robbery by intimidation. The trial court further charged the jury that, based on a review of the evidence, it could either find Adams not guilty of armed robbery, guilty of armed robbery, or guilty of robbery by intimidation. Although the jury asked for a recharge on armed robbery and robbery by intimidation, there is no evidence that the jury was confused as to the possible verdicts it could reach. The verdict form was not improper or misleading, and Adams has not shown that any ruling on an objection to the verdict form would have been meritorious or would have led to a different result. See Moore v. State, 319 Ga. App. 766, 775 (8) (c) (738 SE2d 348) (2013) (where trial court properly instructed the jury on the separate counts of the verdict form, the defendant failed to establish a reasonable likelihood of a different outcome had trial counsel objected to verdict form listing the charge against the defendant in between the charges against a co-defendant); Wilcox v. State, 297 Ga. App. 201, 205, 207 (3) (677 SE2d 142) (2009) (no prejudice from trial counsel’s failure to object to verdict form for failing to list theft by taking as a lesser included offense of both hijacking a motor vehicle and armed robbery because qualified jurors were presumed to follow trial court’s instructions that it was a lesser included offense of both crimes). Accordingly, Adams’s ineffective assistance claim fails.

4. In his last enumeration, Adams contends that the verdict was contrary to the law and the principles of justice for reasons stated in his prior enumerations. In light of our resolution in Divisions 1 through 3, Adams’s contention on this ground is without merit. Since he makes no other argument that the verdict was contrary to law or not supported by the evidence, we affirm his conviction.

Decided May 13, 2014.

Judson R. Knighton, for appellant.

D. Victor Reynolds, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

       Adams cites to former OCGA § 24-9-84 (a) (3), but it is clear from his argument that he isreferringinsteadtoformerOCGA § 24-9-84.1 (a) (3). Additionally, Adams’s reliance upon the new Evidence Code is unavailing. This case was tried in 2011. As a result, Georgia’s new Evidence Code, effective January i, 2013, does not apply to this case. See Slaughter v. State, 292 Ga. 573, 576 (2), n. 3 (740 SE2d 119) (2013).

       To the extent Adams relies upon North Carolina v. Pearce, 395 U. S. 711 (89 SCt 2072, 23 LE2d 656) (1969) for the proposition that a presumption of vindictiveness exists, that case applies only to resentencing after a conviction is set aside. See Townes v. State, 298 Ga. App. 185, 189 (679 SE2d 772) (2009).