author: McMillian, Judge.

text:
    A14A1900.
    JACKSON v. THE STATE.
    (769 SE2d 567)
   McMillian, Judge.

McKenzie Sharrod Jackson was convicted by a jury of two counts of child molestation and sentenced to concurrent ten-year terms. He appeals, arguing that his conviction was based solely on his uncorroborated confession and therefore must be reversed. We disagree and affirm.

The record shows that on the night of the incident, the victims, K. F. and H. R., who were both 14 at the time, were home alone at K. F.’s mother’s house while the mother was working at an overnight home health care job. K. F.’s mother called the house the next morning to wake the girls, but no one answered so she left work and drove to the house. As was her habit, she checked the caller ID on her home phone when she arrived at her house and saw that a call had come in late the night before from a number she did not recognize. K. F.’s mother called back the number, and Jackson, whom she knew from around the neighborhood, answered the phone and told her that he had called looking for her. However, she found this suspicious since Jackson had never called her before, so she took her daughter’s phone and checked her messages after she left for school. She saw that Jackson and her daughter had been texting back and forth the night before, and she discerned from one of the text messages that Jackson had arrived at her house around 1:00 a.m. on February 23, 2010.

Both K. F. and H. R. were subsequently interviewed by a forensic interviewer from Patticake House Children’s Advocacy Center. The victims told the interviewer that Jackson came to K. F.’s mother’s house between 1:00 and 1:30 a.m. on February 23, 2010. Jackson, K. F, and H. R. spent a brief time talking in the living room, and then Jackson and K. F. went into one of the bedrooms and had sexual intercourse. Jackson left that bedroom and went into another bedroom where H. R. was located, and he put on a condom and had sexual intercourse with H. R. K. F. and H. R. also told the interviewer that H. R. had semen on her after she had intercourse with Jackson.

Jackson was interviewed by police less than 24 hours after the incident and again the next day. The first time he was interviewed, Jackson admitted to police that he went to the house where the girls were staying, but he denied any type of sexual conduct occurred while he was there. However, the next day Jackson gave another statement to police, in which he admitted to engaging in sexual conduct with both victims. During this interview, Jackson told police that shortly after he arrived, he and K. F. went into one of the bedrooms and she masturbated him until he “leaked fluids,” and that he then went into another bedroom with H. R. and she masturbated him until he ejaculated. This statement was reduced to writing and introduced into evidence at trial.

Jackson was placed under arrest and subsequently charged with two counts of statutory rape (one involving each victim) and numerous counts of child molestation. Both victims testified at trial and although their testimony differed in some respects from their pretrial statements, both victims testified that Jackson came to the house where they were staying in the early morning hours of February 23, 2010, after they had been talking and texting for several hours. The victims said that Jackson first had sex with K. F. in one of the bedrooms, and that he left that room and went into a different bedroom with H. R., and had sex with her until he ejaculated. Neither victim testified that she masturbated Jackson, and K. F. specifically denied that she touched Jackson’s penis. However, Jackson, who testified at trial and read his incriminating statement to the jury during cross-examination by the State, maintained his version of events accurately portrayed what happened that night.

A jury convicted Jackson of Count 7, which alleged that he had K. F. touch his penis with her hand, and Count 8, which alleged that he had H. R. touch his penis with her hand, and found him not guilty of the remaining charges. Jackson appeals, arguing that his conviction must be reversed because the jury’s verdict was based solely on his uncorroborated confession.

Under former OCGA § 24-3-53, “confessions shall be received with great caution,” and must be corroborated. “Nevertheless, a confession, freely and voluntarily made, is evidence of the highest character, and any corroboration thereof will be sufficient to sustain a conviction.” (Citation and punctuation omitted.) Merritt v. State, 292 Ga. 327, 329 (1) (737 SE2d 673) (2013). Further,

the corroborating evidence or circumstances need not connect the defendant definitely with the perpetration of the offense. Corroboration in any material particular satisfies the requirements of the law, [and t]he amount of evidence necessary to corroborate a confession is for the jury to decide.

(Citation and punctuation omitted.) Hargrove v. State, 289 Ga. App. 363, 365 (1) (657 SE2d 282) (2008). Rogers v. State, 290 Ga. 401, 403 (1) (721 SE2d 864) (2012) (“A confession need be corroborated only by any particular, not every particular”) (citation and punctuation omitted), disapproved on other grounds, State v. Sims, 296 Ga. 465, 469 (2) (a) (769 SE2d 62) (2015). When a jury, properly charged, finds that a confession, freely and voluntarily given, “is corroborated, it need not find proof of guilt beyond a reasonable doubt from evidence separate from and wholly independent of the confession, and it instead may consider the confession along with other facts and circumstances independent of and separate from it.” (Citation and punctuation omitted.) Merritt, 292 Ga. at 329-330.

Decided March 2, 2015.

Joseph D. Weathers, for appellant.

In this case, Jackson’s confession was sufficiently corroborated by the evidence showing that Jackson engaged in a series of text messages with the teenage victims beginning late on the night of February 22, 2010, which continued into the early morning hours of February 23, 2010, and culminated in Jackson arriving at the house where K. F. and H. R. were staying between 1:00 and 1:30 a.m. Jackson and the victims talked a short while in the living room, and then he and K. F. went into a bedroom together and engaged in sexual activity. Jackson then left that bedroom and went into another bedroom with H. R., and engaged in sexual activity with her until he ejaculated.

Despite this evidence, Jackson argues his confession was not sufficiently corroborated because neither victim testified that she touched his penis and K. F. specifically denied this conduct took place. However, as we have explained on numerous occasions, “it is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient.” (Citation and punctuation omitted.) Merritt, 292 Ga. at 330 (1). In this case, Jackson’s statement to police and his trial testimony were sufficiently corroborated in numerous particulars, and the evidence presented at trial was sufficient under the standard of Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Smith v. State, 295 Ga. 283, 287 (1) (b) (ii) (759 SE2d 520) (2014); Merritt, 292 Ga. at 330 (1); Hargrove, 289 Ga. App. at 366 (1).

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur.

C. Paul Bowden, District Attorney, Jennifer D. Hart, Assistant District Attorney, for appellee.

       Although Jackson frames his enumerations in terms of the denial of his motion for directed verdict, the denial of his motion for new trial based on the sufficiency of the evidence, and a challenge to the sufficiency of the evidence under Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979), we consider his contentions together since they assert the same issues and, in this instance, invoke the same standard. E.g., Hargrove v. State, 289 Ga. App. 363 (657 SE2d 282) (2008) (standard for review of denial of motion for directed verdict is the same as that used to assess the sufficiency of the evidence).

       Jackson was 28 years old at the time.

       These statements were played for the jury at trial. One instance of a discrepancy between K. F.’s taped interview and her trial testimony concerned whether she and Jackson had sex in her bedroom or her mother’s bedroom.

       This case was tried in August 2012, and thus the new Evidence Code does not apply. See Ga. L. 2011, pp. 99, 214, § 101. And in any event, former OCGA § 24-3-53 was carried over without substantial change to the new Evidence Code, where it may be found at OCGA § 24-8-823.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A14A1924.
    SCRIVEN v. STATE OF GEORGIA.
    (769 SE2d 569)
   Miller, Judge.

This appeal arises from the denial of J. S.’s unopposed petition to examine her sealed adoption records pursuant to OCGA § 19-8-23. J. S. appeals, contending that the superior court abused its discretion in denying her petition because she showed good cause to examine the records. For the reasons that follow, we find that the superior court abused its discretion in this case and reverse.

Trial court judges have broad discretionary powers with regard to the records of their courts, and this Court will not reverse the grant or denial of a petition to examine sealed records absent an abuse of that discretion. See Sharpton v. Hall, 296 Ga. App. 251, 253 (674 SE2d 105) (2009) (affirming grant of limited access to sealed guardianship records).

Here, the record shows that J. S., along with E. G. and S. G., her presumed brothers, filed a verified petition seeking to examine J. S.’s sealed adoption records. In the petition and supporting affidavit, J. S. averred that she was 65 years old, her biological parents had likely passed away, the Georgia Adoption Registry had notified the parties that they were genetically related, and the parties were seeking the information contained in the sealed records, in part, for medical reasons, because S. G. had a hereditary form of cancer. The Department of Human Services (“DHS”) filed a response to J. S.’s petition, stating that it had no objection to the release of the adoption records to J. S. The superior court nevertheless denied J. S.’s petition, finding that she had not shown good cause to unseal her adoption records.

J. S. contends that she provided a substantial basis for finding good cause based upon her petition and supporting affidavit, and that the trial court abused its discretion in finding otherwise. We agree.

With regard to sealed adoption records, OCGA § 19-8-23 (a) provides that such records

. .. may be examined by the parties at interest in the adoption and their attorneys when, after written petition has been presented to the court having jurisdiction and after the department and the appropriate child-placing agency have received at least 30 days’ prior written notice of the filing of such petition, the matter has come on before the court in chambers and, good cause having been shown to the court, the court has entered an order permitting such examination. . . .

The adoption records statute further provides that an adopted person who has reached the age of 21 years may petition the superior court seeking the release of the identity of her biological parents. OCGA § 19-8-23 (f) (4) (D) (ii). The petition shall be granted if the biological parent has refused to consent, or the department or placement agency has made diligent but unsuccessful efforts to locate each biological parent, and the “failure to release the identity of each biological parent would have an adverse impact upon the physical, mental, or emotional health of the adopted person.” OCGA § 19-8-23 (f) (4) (D) (ii). The statute also provides for disclosure of the name and burial place of a deceased biological parent without the necessity of obtaining a court order. OCGA § 19-8-23 (f) (4) (D) (iii).

What constitutes “good cause” to examine sealed adoption records is not defined by statute. Consequently, the term “good cause” is a factual question which must be judged according to the particular circumstances of the case. See In re G. E. C., 269 Ga. 744, 745 (2) (506 SE2d 843) (1998). Here, based on the undisputed circumstances of this case, J. S. has clearly demonstrated good cause to examine her adoption records.

Notably, J. S. has shown that the parties to the petition are genetically related, her biological parents are likely deceased, and one of her presumed biological brothers died from hereditary cancer. Moreover, J. S.’s petition was unopposed. J. S. is entitled to the release of information regarding her biological parents if they are deceased, if they cannot be located or if they did not consent to the release of information, because she has shown, without objection, that the failure to release their identities would adversely impact her physical health. See OCGA § 19-8-23 (f) (4) (D) (ii)-(iii). Under these particular circumstances, the superior court abused its discretion in denying J. S.’s petition for access to her sealed adoption records.

Judgment reversed.

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

Decided March 2, 2015.

J. S.,pro se.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, for appellee.

       J. S. and S. G. also filed subsequent motions to unseal J. S.’s adoption file so that they could have complete copies. S. G., who subsequently died, filed the petition and motion by and through his personal representative.

       DHS objected to the release of J. S.’s adoption records to E. G. and S. G. E. G. and S. G. are not parties to this appeal.

       The trial court held a hearing in chambers in this case which was not transcribed.


author: Phipps, Chief Judge.

text:
    A14A2066.
    THE STATE v. CASTILLO.
    (769 SE2d 571)
   Phipps, Chief Judge.

Based on evidence collected during a traffic stop on May 14, 2000, Efrain Castillo was charged with driving while his license was suspended, having no proof of insurance, and committing second-degree forgery (for presenting to the officer who stopped him a social security card that did not belong to him). Castillo filed a motion to suppress the evidence, challenging the legality of the stop. The state responded that the officer had reasonable suspicion that the vehicle — which had a dealer’s drive-out tag — was being driven in violation of state vehicle registration law. After a hearing, the trial court granted Castillo’s suppression motion. The state appeals. For reasons that follow, we affirm.

Investigative stops of vehicles are analogous to Terry[] stops and, therefore, must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Operation of any vehicle required to be registered in the State of Georgia without a valid numbered license plate is a misdemeanor, except that, during the 30-day period within which vehicle registration is required, the purchaser of a new or used vehicle may operate the vehicle with a temporary plate issued by the dealer. At the time of the traffic stop in this case, Georgia law did not require the temporary plate to show its expiration date[.] [S]uch a requirement was added by OCGA § 40-2-8 (b) (2) (B) (i), effective July 1, 2000.

And cases such as Chiasson v. State recognize that, prior to July 1, 2000, the stop of a vehicle to investigate compliance with state registration law may have been authorized if the vehicle bore a dealer’s drive-out tag which, based upon its “weathered” look, appeared to have been on the vehicle beyond the statutory 30-day period.

OCGA § 17-5-30 (b) states that “the burden of proving that the search and seizure were lawful shall be on the state.” Hence, “[i]t is the [s]tate’s burden to establish the existence of circumstances constituting an exception to the general prohibition against warrantless searches and seizures.”

When the trial court convened the suppression hearing on January 9, 2014, thirteen years had passed since the officer stopped Castillo on May 14, 2000 at about 7:00 p.m. The officer was asked on direct examination to “[t] ell the court about the circumstances of that contact” with Castillo. The officer testified, “I initially stopped the vehicle that Mr. Castillo was driving for a drive-out tag that appeared very worn and old. It appeared that it had been on the vehicle more than 30 days. That’s why I initiated the traffic stop.” The officer described the tag as “one of those paper plates.” The officer was further asked on direct examination, “Did it seem substantially more than a month old or just a little bit more than a month old?” He answered, “As I’m trying to remember, it was pretty worn out. I’m trying to recall. But for me to have stopped it, it must have been fairly worn out.”

In support of his challenge to the traffic stop, Castillo called as a witness his sister, who was the owner of the vehicle at the time in question. She testified on direct examination that she had purchased the car on May 4, 2000. Given that testimony, defense counsel included in closing argument:

[S]he bought this car on May 4, 2000. Briefly ten days later, during the summer and not during a time when it is snowing a lot or there would be anything that would cause this tag to be weathered a lot, only ten days later, this tag looked, according to the officer, so old and outdated that he couldn’t read it or so weathered that he found that it was a [sufficient] basis for stopping the car.

The prosecutor countered that the stop was justified, in light of the officer’s testimony and the holding of Chiasson Additionally, as the prosecutor addressed:

[T]he final argument that the defense made basically comes down to credibility. . . . [The] defense’s argument is that the officer is not credible. We submit that, Judge, nothing has been shown in this hearing to impugn on the credibility of the officer. He had absolutely no reason to make this up. And in fact, there’s a big bias for the witness who testified. It wasn’t an independent witness. It was the defendant’s sister. So obviously she actually does have a reason to state falsely when she actually bought the car... .Your Honor has only her word as far as when she bought the car. There is no official documentation tendered into evidence that shows exactly when this car was bought or when the drive-out tag was bought.

The prosecutor added:

Even if later on it came out to be that the tag was fairly new or it was less than a month old, that’s not the standard. The standard is at the time of the stop whether the officer reasonably believed that the tag was old. So even if later on the defense was able to show that the tag was less than a month old, that does not make the stop illegal. It’s what the — the information that the officer had at the time of the stop that’s relevant.

The trial court acknowledged the officer’s testimony concerning the condition of the tag; also, the court agreed with the prosecutor that, under Chiasson, a weathered car tag could provide the requisite basis to stop a vehicle, acknowledging that even if “the tag wasn’t 30 days old,... it is the perspective at the time of the observation... not the truth of whether it is 30 days old but what it looks like.”

However, the trial court explicitly questioned the officer’s recollection of the tag’s condition 13 years earlier, further remarking, “[T]here’s no picture of the tag.” The court stated that it was faced with a “dilemma”: “I certainly find [the officer’s] testimony credible, but I also found the defense witness’s testimony credible.” The trial court ended the hearing, electing to reserve ruling on the motion so as to give the defense opportunity to supplement the record, and stating that such evidence could “undermine” the officer’s testimony relating to the condition of the tag.

When the court reconvened the parties on February 4, 2014, it announced that it had reviewed “the additional documentation that [defense counsel] has provided.” And as the state concedes in its appellate brief, “[t]he Appellee was . . . allowed to supplement the record with documents showing that the vehicle was purchased on May 4,2000.” Further, the trial court again acknowledged Chiasson’s holding, as well as the officer’s testimony. Then the court revealed its determination that other testimony and evidence was contrary to the officer’s testimony, which had “raise[d] enough doubt” such that the court would not give “credence” to the officer’s testimony. Hence, the court stated that it would grant Castillo’s motion. The next day, the court entered the order, which summarily granted the motion.

The Supreme Court of Georgia has enunciated three fundamental principles which must be followed when conducting appellate review of a ruling upon a motion to suppress:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. On numerous occasions the appellate courts of this state have invoked these three principles to affirm trial court rulings that upheld the validity of seizures. These same principles of law apply equally to trial court rulings that are in favor of the defendant. . . .

In this appeal, the state maintains that the officer’s testimony, together with the holding in Chiasson, showed that the officer had reasonable suspicion to conduct the traffic stop of Castillo’s vehicle. But the state has wholly failed to address the credibility underpinning of the trial court’s decision.

“Credibility of witnesses and the weight to be given their testimony is a decision-making power that lies solely with the trier of fact. The trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony.”

It is evident that the officer’s claim of the tag’s condition — which was the sole articulated basis for the stop — was found by the trial court to lack credibility.

Motions to suppress, by their nature, often turn on difficult questions of credibility and specific findings of fact. The principles of appellate review applicable to these motions were set forth to ensure that, in difficult cases such as this one, the trial court’s resolution of these issues would be given deference, as only the trial court actually sees the witnesses and hears their testimony. Staying true to these principles, a clearly erroneous standard of review must be applied in this case. . . .

We find no clear error in the trial court’s credibility determination. The state, having thus failed to adduce credible evidence that the officer observed a tag that appeared more than 30 days old, has supplied no basis to disturb the trial court’s decision to grant Castillo’s motion to suppress.

Decided March 2, 2015.

LeeDarragh, District Attorney, Shiv Sachdeva, Assistant District Attorney, for appellant.

Robert L. Booker, for appellee.

Judgment affirmed.

Ellington, P. J., and McMillian, J., concur.

        Terry v. Ohio, 392 U. S. 1 (88 SCt 1868, 20 LE2d 889) (1968).

        Chiasson v. State, 250 Ga. App. 63, 64 (1) (549 SE2d 503) (2001) (punctuation and footnotes omitted); see Ga. L. 2000, p. 523, § 1; see also Bius v. State, 254 Ga. App. 634, 636 (2) (563 SE2d 527) (2002) (noting change to Georgia law).

       Supra.

        Chiasson, supra at 63-64 (1).

        State v. Massa, 273 Ga. App. 596, 597 (615 SE2d 652) (2005), citing OCGA § 17-5-30 (b).

       Supra.

        Miller v. State, 288 Ga. 286-287 (1) (702 SE2d 888) (2010), quoting Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); see Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012) (“When the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court’s application of the law to the undisputed facts. To the extent an issue concerns a mixed question of fact and law, we accept the trial court’s findings on disputed facts and witness credibility unless they are clearly erroneous, hut independently apply the law to the facts.”) (citations omitted).

        Tate, supra at 56 (3) (citation and footnote omitted); see State v. Hester, 268 Ga. App. 501, 505 (602 SE2d 271) (2004) (“The trial judge, like the jury, is the primary guardian of the rights of a citizen. An absolute rule requiring the trial judge to believe the witnesses called by the state would contradict the American system of justice.”) (whole court).

       See Barnett v. State, 204 Ga. App. 491, 492 (1) (420 SE2d 43) (1992) (analyzing that the trial court, “perforce of its ruling on the suppression motion,” made credibility determination) (cited in Tate, supra at 57 (3) and n. 6, as an example of the way reviewing courts “interpret” judicial orders in cases where the trial court, as Tate ascertained, did not make specific findings); see also Hester, supra at 504 (ascertaining that the trial court chose to disbelieve the officer’s testimony, where the trial court granted the suppression motion, even though the state presented an officer’s testimony, which, “[i]f believed by the trial court,... would [have been] more than adequate to justify” the traffic stop); Massa, supra at 597-598 (determining that, although the trial court did not explicitly reject the officer’s testimony, the trial court’s findings of fact and case law cited “suggested] that the trial court had rejected the officer’s testimony” that underlay the state’s claim that the officer’s intrusion was authorized); see generally Miller, supra at 289-290 (2) (concluding that, where the “trial court explicitly questioned the bases presented as the purpose for the stop of [the accused],” “credibility determinations played a significant part in the trial court’s [suppression] ruling,” and thus, “[t]his credibility question lies at the very core of the trial court’s ruling, and it should not be negated by [the appellate court]”).

        Miller, supra at 290 (2).

       See Tate, supra at 55-56 (2) and n. 5 (noting an issue of credibility concerning the officer’s testimony was created, where such testimony was considered in light of other “circumstantial evidence” that was presented at hearing; further enumerating “demeanor” as a factor that can lead a finder of fact to disregard testimony hy an officer that an accused was violating the law; and concluding that “[a] rational trier of fact could believe that [the officer’s] testimony was not truthful and that the officer was claiming that [accused] broke the law in order to justify an illegal stop”); Massa, supra; Hester, supra at 504-506 (affirming the grant of suppression motion, where the trial judge disbelieved the officer’s testimony that underlay the state’s claim that the traffic stop was justified; reiterating that “when no error of law appears on the record, and the trial court’s ruling is based on the credibility of the oral testimony presented at the hearing, [an appellate court] must... leave the decision to the trial judge as the trier of fact”); Barnett, supra. See also Miller, supra.

       See Miller, supra; Tate, supra; Massa, supra; Hester, supra; Barnett, supra.


author: ANDREWS, Presiding Judge.

text:
    A14A2115.
    HENDRIX et al. v. FULTON DeKALB HOSPITAL AUTHORITY.
    (769 SE2d 575)
   ANDREWS, Presiding Judge.

The parents and the estate of Billy Ray Hendrix, Jr., deceased, sued the Fulton County Hospital Authority d/b/a Grady Memorial Hospital d/b/a Grady Health System (Grady Hospital or the Hospital) seeking to recover damages for Hendrix’s wrongful death and pain and suffering arising from medical malpractice which allegedly occurred during medical treatment Hendrix received at Grady Hospital for injuries he suffered in an automobile accident. The Hospital moved for summary judgment on the basis that: (1) the expert affidavit filed with the complaint pursuant to OCGA § 9-11-9.1 was defective because the expert was not competent to testify; and (2) the Parents/Estate failed to cure the defect pursuant to OCGA § 9-11-9.1 (e). The trial court granted summary judgment in favor of the Hospital, and the Parents/Estate appeal. For the following reasons, we affirm.

The medical malpractice complaint, filed on February 7, 2013, alleged that, while Hendrix was being treated at Grady Hospital (from July 23, 2010 to November 18, 2010) for serious injuries he suffered in an automobile accident, the Hospital negligently failed to comply with the applicable standard of medical care by allowing him to develop multiple decubitus ulcers (pressure sores); that “the decubitus ulcers were not treated properly and [he] developed an infection”; and that “[a]s a result of the progression and exacerbation of the decubitus ulcers and serious infection, [he] succumbed to death due to the bacterial infection and sepsis on February 9, 2011” about 12 weeks after he was discharged from Grady Hospital to another medical facility. With the complaint, the Parents/Estate filed an expert affidavit from Adel Shaker, M.D., a medical doctor practicing in the specialty of forensic pathology. Grady Hospital filed a motion to dismiss which alleged that the affidavit was defective because it failed to set forth at least one negligent act or omission, and because Dr. Shaker was not an expert competent to testify under the standards set forth in OCGA § 24-7-702 (c) (2) as required by OCGA § 9-11-9.1. Within 30 days of the Hospital’s motion, the Parents/Estate filed an amended expert affidavit from Dr. Shaker purporting to cure the alleged defects.

In the amended affidavit, Dr. Shaker stated that he reviewed “the file submitted by [the Parents/Estate’s attorney] pertaining to [Hendrix] to determine the cause and manner of death and to evaluate if the standards of medical care were followed.” The amended affidavit stated that decubitus ulcers are staged under a “standard of classification”; that treatment of decubitus ulcers “should follow a specific protocol to avoid serious complications that could ensue into the demise of a patient”; that it was Dr. Shaker’s opinion “within reasonable diagnostic medical certainty that. . . Hendrix developed his pressure ulcers during his hospitalization at Grady Memorial Hospital”; and that the Hospital breached the standard of care by failing to turn or reposition Hendrix in his bed every two hours and by “misevaluation in staging” the ulcers. According to Dr. Shaker, “had the proper medical management been adopted, the pressure ulcers would have been prevented, or treated after their onset,” but “[a]s a result of the progression and exacerbation of the decubiti and serious infection, . . . Hendrix succumbed to death due to bacterial infection and generalized sepsis.” The Parents/Estate’s brief in support of the amended affidavit referred to the curriculum vitae attached to Dr. Shaker’s affidavit, which showed his specialty in forensic pathology, and asserted that Dr. Shaker was competent to testify under OCGA § 24-7-702 (c) (2) because he has “extensive knowledge in forensic pathology, medical physiology and medical standards of care,” and because this case involves an obvious breach of a known standard of care.

After the Parents/Estate filed the amended expert affidavit, the Hospital filed its motion for summary judgment seeking dismissal on the basis that: (1) the amended affidavit was defective because Dr. Shaker, a forensic pathologist, lacked actual professional knowledge and experience sufficient to render him competent to testify under the requirements of OCGA §§ 24-7-702 (c) (2) and 9-11-9.1 (a); (2) the 30-day period under OCGA § 9-11-9.1 (e) for curing the defect had expired; and (3) the complaint was subject to being dismissed with prejudice. OCGA § 9-11-9.1 (e). After a hearing on the motion, the trial court entered an order granting summary judgment and dismissing the suit because Dr. Shaker’s affidavit failed to satisfy the requirements of OCGA §§ 9-11-9.1 (a) and 24-7-702 (c) (2) that the expert affiant have actual professional knowledge and experience with respect to the medical malpractice alleged in the complaint.

The Parents/Estate’s complaint set forth a medical malpractice action against Grady Hospital, a licensed healthcare facility, seeking to impose liability on the Hospital based on action or inaction by licensed health care professionals listed in subsection (g) of OCGA § 9-11-9.1. See OCGA §§ 9-3-70; 9-11-9.1 (a). Accordingly, OCGA § 9-11-9.1 (a) required the Parents/Estate “to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” The standards for determining whether an expert is competent to testify are set forth in OCGA § 24-7-702. Aguilar v. Children’s Healthcare of Atlanta, 320 Ga. App. 663, 664 (739 SE2d 392) (2013) (referring to the standard set forth in former OCGA § 24-9-67.1, the predecessor statute to OCGA § 24-7-702). Subsection (e) of OCGA § 24-7-702 states that an expert competent to testify and provide the affidavit required by OCGA § 9-11-9.1 (a) “shall meet the requirements of [OCGA § 24-7-702] in order to be deemed qualified to testify as an expert by means of the affidavit required under Code Section 9-11-9.1.” OCGA § 24-7-702 (e).

As to an expert providing the affidavit required by OCGA § 9-11-9.1 (a), subsection (c) of OCGA § 24-7-702 provides in relevant part:

. . . [I]n professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert:
(1) Was licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time; and
(2) In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:
(A) The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue [.]

Where the expert’s affidavit fails to meet the requirements of OCGA § 24-7-702 (c), the affidavit is insufficient, and the complaint is subject to dismissal. Craigo v.Azizi, 301 Ga. App. 181, 182 (687 SE2d 198) (2009). Because the trial court conducted a hearing under OCGA § 24-7-702 (d) to determine the expert affiant’s competence to testify, the court’s determination on this issue is reviewed on appeal for abuse of discretion. Craigo, 301 Ga. App. at 182-183.

Based on the hearing, the trial court found it was undisputed that Hendrix was admitted to Grady Hospital for treatment of severe injuries he sustained in an automobile accident which rendered him a quadriplegic; that he was admitted to the Hospital for a four-month period during which he underwent several surgeries and remained in the intensive care unit; and that he died on February 9, 2011, about three months after being discharged from Grady Hospital to another health care facility. The trial court found that the medical negligence alleged in the complaint was that, during the time Hendrix was treated at Grady Hospital, he developed decubitus ulcers, or pressure sores; that the ulcers were not properly diagnosed, prevented, or treated under the applicable medical standard of care; and that this caused him pain and suffering and eventually caused his death. In considering Dr. Shaker’s amended affidavit, the trial court found that his curriculum vitae attached to the affidavit showed that he had been a medical doctor for over twenty-five years with a specialty in forensic pathology, and that, in the five years preceding the alleged medical negligence, he practiced (a) as a fellow at the Allegheny County Coroner’s Office in Pennsylvania, (b) with the Regime Crime Liaison Office — Mass Graves in Iraq, and (c) as a State Medical Examiner/Forensic Pathologist in Mississippi, Alabama, and California. On these findings, the trial court concluded that Dr. Shaker’s affidavit failed to satisfy the requirements of OCGA §§ 9-11-9.1 and 24-7-702 (c) (2) that he have actual professional knowledge and experience with respect to the allegations in the complaint that the Hospital was liable for medical malpractice by physicians or other health care professionals who failed to comply with the medical standard of care for prevention, diagnosis, or treatment of decubitus ulcers.

We find no abuse of discretion in the trial court’s determination that Dr. Shaker was not competent to testify because he lacked the appropriate level of knowledge relevant to the alleged malpractice, and that the required affidavit was insufficient. Whether or not an expert has “actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given,” as set forth in OCGA § 24-7-702 (c) (2), depends on “whether the expert’s knowledge and experience ‘is relevant to the acts or omissions that the plaintiff alleges constitute [d] malpractice and caused the plaintiff’s injuries.’ Nathans v. Diamond, 282 Ga. 804, 806 (1) (654 SE2d 121) (2007) .” Dawson v. Leder, 294 Ga. App. 717, 719 (669 SE2d 720) (2008) . A minimum level of knowledge in the area in which the expert opinion is to be given is not sufficient. Nathans, 282 Ga. at 806. Rather, under OCGA § 24-7-702 (c) (2) (A), the expert must have been regularly engaged in the active practice of the area of specialty in which the opinion is to be given “for at least three of the last five years” preceding the alleged malpractice, and must have done so “with sufficient frequency to establish an appropriate level of knowledge ... in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue.” Nathans, 282 Ga. at 806. Even assuming Dr. Shaker was minimally qualified to render an opinion as to the acceptable standard of conduct of the professionals whose conduct is at issue, nothing in his amended affidavit or attached curriculum vitae showed that, for at least three of the last five years preceding the alleged malpractice, he was regularly engaged in an active practice involving the diagnosis, prevention, or treatment of decubitus ulcers. Akers v. Elsey, 294 Ga. App. 359, 361-362 (670 SE2d 142) (2008).

Where the defendant contends that the expert affidavit filed by the plaintiff pursuant to OCGA § 9-11-9.1 (a) is defective, the procedure governing dismissal of the complaint for failure to file an adequate affidavit is set forth in OCGA § 9-11-9.1 (e). Under this subsection,

[i]f a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains alleges, with specificity, by motion to dismiss filed on or before the close of discovery, that said affidavit is defective, the plaintiff’s complaint shall be subject to dismissal for failure to state a claim, except that the plaintiff may cure the alleged defect by amendment pursuant to Code Section 9-11-15 within 30 days of service of the motion alleging that the affidavit is defective. The trial court may, in the exercise of its discretion, extend the time for filing said amendment or response to the motion, or both, as it shall determine justice requires.

OCGA § 9-11-9.1 (e). “The statute... permits dismissal only when the plaintiff fails to cure an inadequacy within 30 days of the filing of a motion to dismiss that identifies the same inadequacy ‘with specificity.’ ” Ndlovu v. Pham, 314 Ga. App. 337, 341 (723 SE2d 729) (2012); Thomas v. Gastroenterology Assoc. of Gainesville, 280 Ga. 698, 699 (632 SE2d 118) (2006). On May 10, 2013, Grady Hospital filed a motion to dismiss the complaint stating with specificity that the expert affidavit filed by the Parents/Estate to comply with OCGA § 9-11-9.1 (a) was defective because the expert, Dr. Shaker, was not competent to testify under the standards set forth in OCGA § 24-7-702 (c) (2). On June 6, 2013, within 30 days of service of the Hospital’s motion to dismiss, the Parents/Estate filed the amended expert affidavit from Dr. Shaker purporting to cure the alleged defect. On July 3, 2013, after the 30-day period in OCGA § 9-11-9.1 (e) for curing the alleged defect had expired, the Hospital filed its motion for summary judgment asserting that the amended affidavit failed to cure the defect pointed out in the May 10, 2013 motion to dismiss. Subsection (e) of OCGA § 9-11-9.1 provides under these circumstances that “the plaintiff’s complaint shall be subject to dismissal for failure to state a claim....” A dismissal for failure to state a claim is a dismissal on the merits, with prejudice, and renders the suit void and incapable of being renewed pursuant to OCGA § 9-2-61 after expiration of the applicable statute of limitation. Roberson v. Northrup, 302 Ga. App. 405 (691 SE2d 547) (2010); Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994). Because dismissal under these circumstances renders the suit void, incapable of being renewed, and the two-year limitation period in OCGA § 9-3-71 (a) applicable to medical malpractice actions had expired, the trial court did not err by dismissing the suit pursuant to the Hospital’s motion for summary judgment. See Nathans, 282 Ga. at 804-807 (granting summary judgment to defendant where plaintiff failed to comply with requirement in OCGA § 9-11-9.1 that the affidavit be given by an expert competent to testify).

Decided March 2, 2015.

Kenneth L. Gordon, for appellants.

James C. West III, Ayanna J. Jones-Lightsy, for appellee.

Judgment affirmed.

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

       The wrongful death claim was brought hy Hendrix’s parents, Billy Ray Hendrix, Sr., and Patsy L. Elliott. As representative of the estate, Hendrix, Sr., asserted the estate’s claims. These plaintiffs are collectively referred to as the Parents/Estate.

       The Parents/Estate do not contest the trial court’s grant of summary judgment in favor of 16 other physicians and medical professionals named as defendants in the suit and alleged to have provided Hendrix with negligent medical treatment.

       The motion at issue in this case took place in January 2014; therefore, OCGA § 24-7-702 of the new Evidence Code applies. Ga. L. 2011, p. 99, § 101. “[BJecause OCGA § 24-7-702 is ‘substantively identical’ to its predecessor statute, former OCGA§ 24-9-67.1, cases decided under the former statute offer useful guidance when analyzing the current version of the statute.” Dempsey V. Gwinnett Hosp. System, 330 Ga. App. 469, 471, n. 3 (765 SE2d 525) (2014).


text:
    A14A2202.
    CURTIS v. THE STATE.
    (769 SE2d 580)
   Miller, Judge.

Timothy Dwayne Curtis was tried by a jury and convicted of armed robbery (OCGA § 16-8-41 (a)), aggravated assault with a deadly weapon (OCGA § 16-5-21 (b) (2)), aggravated assault with intent to rob (OCGA § 16-5-21 (b) (1)), and cruelty to animals (OCGA § 16-12-4 (b) (1)). He appeals the trial court’s denial of his motion for new trial, contending that his trial counsel was ineffective in numerous respects and that the trial court erred during sentencing by failing to merge one of the aggravated assault counts with the armed robbery count. We find that Curtis did not receive ineffective assistance of counsel. We also find that the offense of aggravated assault with intent to rob was factually merged into the offense of armed robbery. Accordingly, we affirm in part, vacate in part, and remand this case for resentencing.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). So viewed, the evidence showed that Curtis was living in Duluth with Quinton Rogers and Stanley Wells. On January 18, 2012, Wells and Rogers got into an argument, and a physical altercation ensued. According to Rogers, Wells became aggressive and grabbed Rogers. Curtis and Rogers then decided to leave before things escalated further.

Curtis drove Rogers to an apartment complex in Norcross to obtain some marijuana. When Curtis returned to the car, he brought two men with him, one short and one tall. Rogers testified that, on the way back to his house, there was no discussion of Wells or of guns or violence toward Wells. When Rogers and Curtis returned to the house, they all started arguing again. Wells told Curtis and Rogers that they were going to have to leave. Wells testified that Curtis then called someone on his phone and said, “Y’all ready?” Immediately thereafter, the two men from Norcross came into the house. The shorter man pulled out a gun, pointed it at Wells, told him to get down on the floor, and hit him in the head with the gun when he failed to comply. They then pulled out Wells’s pockets, and continued hitting him, taking his wallet and his cell phone. At some point, Wells heard Curtis say, “Give me that tool,” which he assumed meant the gun.

Wells escaped and started running toward the front of the house. The taller man started shooting at him, and Wells grabbed Curtis and used him as a shield. Curtis then ran out the back door, and Wells followed. Wells ran to a neighbor’s house for help, and she called 911.

When City of Duluth police officer Andrew Brandenburg responded to the 911 call, he observed pistol imprints on Wells’s head. Officer Brandenburg testified that Wells was in shock and said, “I know who did it. It was four guys.” Wells was transported to the hospital and treated for lacerations on his head and two gunshot wounds on his leg.

Rogers testified that he was in his bedroom when he heard arguing, and when his bedroom door opened, he saw Wells on the floor with the shorter man standing over him. Rogers also testified that when he climbed out of his bedroom window and began walking to the bus station, he saw flashes coming from the window of the house and heard what sounded like three gunshots.

James Jackson, a neighbor, testified that he was driving past Wells’ house and saw flashing lights coming from inside. He saw Wells running out of the house, limping, and then saw two or three other men come out of the house. He saw three or four men get into a car and drive up the street, stopping to pick up another man who was walking.

William Petty, a City of Duluth police officer, testified that he knew Wells and Rogers. Petty responded to the 911 call and observed shattered glass, an overturned chair, blood in the hallway, a bullet casing in the hallway, and a gun magazine in the bathroom. He also found two dogs in a locked bedroom and one of the dogs had what appeared to be a gunshot wound.

After hearing the evidence at trial, the jury issued a verdict of guilty on all four counts of the indictment, Curtis was sentenced to life imprisonment for armed robbery, ten years imprisonment for each count of aggravated assault, and twelve months imprisonment for cruelty to animals. The sentences for aggravated assault and cruelty to animals were to run concurrently with the sentence for armed robbery.

1. Curtis contends that his trial counsel was ineffective for failing to request that opening statements, closing statements, and voir dire be recorded; failing to impeach Wells’s testimony with phone records; failing to impeach several of the State’s witnesses with their prior felony convictions; and failing to inform the jury of the terms and conditions of Rogers’s guilty plea. We find that Curtis has failed to make the requisite showing that his trial counsel provided ineffective assistance.

To establish an ineffective assistance of counsel claim, [Curtis] must show that the counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland V. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984). [Curtis] must show that both prongs of the Strickland test are met. Further, a strong presumption exists that the counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Ineffectiveness claims are mixed questions of law and fact. We accept the trial court’s findings of fact unless clearly erroneous and apply the law to the facts independently.

(Citation and punctuation omitted.) Brooks v. State, 323 Ga. App. 681, 684 (2) (747 SE2d 688) (2013).

(a) Curtis contends that his trial counsel was ineffective for failing to have the opening and closing statements and voir dire transcribed. We disagree.

The arguments of counsel at trial are not required to be transcribed. OCGA § 17-8-5 (a). And “[although objections and rulings thereon made during jury selection are required to be reported and made part of the trial record, there is no requirement that the entire jury selection be reported and made part of the record in a nondeath penalty felony case.” (Citation omitted.) Brinkley v. State, 320 Ga. App. 275, 280 (4) (739 SE2d 703) (2013). Accordingly, the failure to request that opening and closing statements and voir dire be reported does not constitute a basis for an ineffective assistance of counsel claim. See Williams v. State, 323 Ga. App. 88, 90 (2) (c) (746 SE2d 913) (2013); see also Dunlap v. State, 291 Ga. 51, 53 (3) (727 SE2d 468) (2012) (defendant’s speculation that error may have occurred during unrecorded opening or closing statements or voir dire “is insufficient to show any deficiency on the part of counsel, or prejudice therefore, and is insufficient to show reversible error.”) (citations omitted).

(b) Curtis contends that his trial counsel was ineffective for failing to subpoena the necessary witnesses to authenticate the phone records for Wells and Curtis, which could have been used to impeach Wells’s testimony about phone calls he claimed were made from him to Curtis and from Curtis to one of the men who assaulted him. We disagree.

The day after the incident, Officer Petty interviewed Wells, and Wells told him that he called Curtis before the attack and that Curtis also called the men who attacked him. In an attempt to verify those calls, Officer Petty subpoenaed Wells’s and Curtis’s cellular phone records. The records were not introduced at trial and when Curtis’s counsel sought testimony from Officer Petty about whether the records showed that the calls Wells testified about had actually been made, the trial court sustained the State’s objection based on lack of foundation.

Even if Curtis’s trial counsel was deficient for failing to subpoena witnesses to authenticate the phone records, Curtis has failed to show prejudice.

To prove the prejudice prong of Strickland on a claim that trial counsel failed to call a witness, a defendant must show the witness’s expected testimony by presenting either live testimony of the witness, an affidavit from the witness, or a legally recognized substitute for the uncalled witness’s testimony; a proffer by counsel is insufficient.

(Citations and punctuation omitted.) Benjamin v. State, 322 Ga. App. 8, 11 (1) (b) (743 SE2d 566) (2013). At the motion for new trial hearing, the phone records were not proffered and the witnesses that Curtis claims should have been called at trial did not testify or provide a legally recognized substitute for such testimony. “Where, as here, the defendant fails to proffer the testimony of an uncalled witness, he cannot prove that there is a reasonable probability that the trial would have ended differently.” (Citations and punctuation omitted.) Brooks, supra, 323 Ga. App. at 684-685 (2).

Curtis also contends that his trial counsel was ineffective in failing to make Wells admit to an inconsistency between Petty’s testimony about his interview with Wells and Wells’s trial testimony. According to Officer Petty, Wells said that Rogers had head-butted him during the initial argument about the power bill. Wells testified that he did not say that, but told Officer Petty that “[Rogers’s] mouth touched my mouth, face to face.” Trial counsel made the jury aware of this inconsistency, and Curtis has not shown a reasonable probability that the outcome of his trial would have been different if Wells had admitted the inconsistency.

(c) Curtis contends that his trial counsel was ineffective for failing to impeach Rogers, Jackson and another witness, Carlyon John Price, with their prior felony convictions and for failing to request a jury charge on impeachment by prior felony conviction. We disagree.

(i) At the motion for new trial hearing, Curtis introduced copies of prior convictions for felony offenses obtained as a result of negotiated guilty pleas for Rogers (sale of cocaine), witness Price (escape, two convictions for possession of cocaine), and Jackson (three convictions for theft by taking). Trial counsel testified that she did not think it was necessary to introduce Rogers’s prior drug conviction as it was obvious that the people who testified in the case were involved in drugs somehow. Trial counsel was aware that Price and Jackson might have criminal histories, but did not obtain any prior convictions for them because she did not think they would make a difference in the case.

a. Rogers’s Testimony

“The decision whether to impeach a witness through introduction of certified copies of prior convictions is a matter of trial strategy.” (Citation and punctuation omitted.) Chance v. State, 291 Ga. 241, 246 (7) (a) (728 SE2d 635) (2012). Despite the fact that he was a witness for the State, most of Rogers’s testimony was favorable to Curtis insofar as it showed that Wells instigated the initial conflict and that there was no discussion of any plan to attack Wells before he and Curtis returned to the house with the other men. Thus, it is not clear what benefit Curtis would have obtained by impeaching Rogers with a prior drug conviction. Further, the jury was aware that Rogers used illegal drugs based on his own testimony at trial. As a result, any deficiency in failing to impeach Rogers’s testimony with his prior felony conviction could not have prejudiced Curtis as it would not have made a significant difference in the jury’s assessment of his credibility. See Aburto v. State, 327 Ga. App. 424, 430 (3) (b) (759 SE2d 276) (2014); Buchanan v. State, 273 Ga. App. 174, 181-182 (5) (614 SE2d 786) (2005).

b. Price’s Testimony

Price’s testimony was limited to proof that Wells asked him to clean the house after the incident and that, while cleaning, he found a roll of duct tape in the back yard. Both Wells and Curtis testified that the two men used tape to try and wrap Wells’s legs. Even if Price’s prior convictions had been admitted and the jury had disregarded all or some part of his testimony, the remaining evidence was sufficient to authorize the jury’s verdict. Accordingly, no reasonable probability exists that, but for trial counsel’s failure to impeach Price with his prior convictions, the result of the trial would have been any different. See Chance, supra, 291 Ga. at 247 (7) (a).

c. Jackson’s Testimony

With respect to Jackson’s convictions for theft by taking, his trial testimony was relevant to show that gunshots were fired inside the house. Rogers, however, also testified that he saw flashes of light coming from the house and there is no dispute that Wells was shot inside the house. Jackson also testified that he saw two or three men come out of the house and three or four men get into a car and drive up the street. Even if Jackson’s prior convictions had been admitted and the jury had disregarded all or some part of his testimony, the remaining evidence was sufficient to authorize the jury’s verdict. Curtis has therefore failed to show a reasonable probability that the outcome of his trial would have been different if Jackson had been impeached with his prior convictions. See Chance, supra, 291 Ga. at 247 (7) (a).

(ii) Curtis also claims that his trial counsel was ineffective for failing to request a charge on impeachment by prior felony conviction.

When a claim of ineffective assistance is based on the failure to request a jury charge, the relevant inquiry is whether the charge, if it had been requested, was warranted by the evidence, and if it had been given, whether there is a reasonable probability that it would have changed the outcome of the trial.

(Citation omitted.) Bradley v. State, 322 Ga. App. 541, 545 (3) (a) (745 SE2d 763) (2013). Because there was no impeachment by use of a prior felony conviction, Curtis would not have been entitled to an instruction on that basis, and trial counsel was not deficient in failing to request it. See generally id. at 547 (3) (a) (i).

(d) Curtis contends that his trial counsel was ineffective for failing to fully inform the jury of the terms and conditions of Rogers’s plea deal in order to show Rogers’s bias. We disagree.

“Although an attorney is permitted to thoroughly question a testifying co-defendant regarding the details of any plea agreement, it does not necessarily follow that counsel is ineffective for failing to elicit all details of the agreement.” Serrate v. State, 268 Ga. App. 276, 278 (2) (c) (601 SE2d 766) (2004). At trial, Rogers wore jail clothing and testified that he was facing the same charges as Curtis and was waiting on sentencing pursuant to his guilty plea. Rogers acknowledged that he was testifying for the State, that he took a plea instead of going to trial, and that he expected a lighter sentence based on the testimony he gave at Curtis’s trial. Thus, the jury was provided with evidence that Rogers was potentially biased and had motivation to testify against Curtis. Under the facts of this case, we cannot say that trial counsel’s failure to ask about specific aspects of Rogers’s plea deal was patently unreasonable. See Holder v. State, 319 Ga. App. 239, 249 (3) (b) (736 SE2d 449) (2012).

2. Curtis contends that the trial court erred during sentencing by failing to merge Count 3 (aggravated assault with intent to rob) with Count 1 (armed robbery). We agree.

A defendant may not be convicted of more than one crime based on the same conduct if one crime is included in the other. OCGA § 16-1-7 (a) (1). To determine whether the conviction for aggravated assault with intent to rob merges into the conviction for armed robbery, we apply the “required evidence” test, which provides “that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” (Punctuation and footnote omitted.) Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006). Armed robbery requires an intent to rob, use of an offensive weapon, and the taking of property from another person or that person’s immediate presence. OCGA § 16-8-41 (a). Aggravated assault with intent to rob requires an assault upon a person with an intent to rob. OCGA § 16-5-21 (b) (1). Curtis was charged with armed robbery for taking Wells’s wallet by use of a handgun and aggravated assault for hitting Wells in the head with a gun with the intent to rob. Because “the ‘assault’ element of aggravated assault with intent to rob is contained within the ‘use of an offensive weapon’ element of armed robbery and both crimes share the ‘intent to rob’ element, there is no element of aggravated assault with intent to rob that is not contained in armed robbery.” Lucky v. State, 286 Ga. 478, 482 (2) (689 SE2d 825) (2010).

Decided March 2, 2015.

Pamela T. Britt, for appellant.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

The State argues that the time lapse between the beating with the gun and the robbery precludes the counts from merging. See Gaither v. Cannida, 258 Ga. 557, 557-558 (1) (372 SE2d 429) (1988) (where facts show one crime was completed before the second crime so that crimes are separate as a matter of law, there is no merger). At trial, however, Wells testified that he was still being pistol whipped while the men asked him, “what you got,” and took his wallet and cell phone. The robbery by use of a handgun was completed at the same place and approximately the same time as the aggravated assault with a handgun. See Herrera v. State, 306 Ga. App. 432, 435 (3) (702 SE2d 731) (2010). Thus, the timing of the offenses does not preclude their merger. Because the aggravated assault with intent to rob was established by proof of the same or less than all the facts required to prove armed robbery, the offenses merge. See id. Accordingly, we vacate the conviction and sentence for aggravated assault with intent to rob and remand the case for resentencing with direction to merge the aggravated assault with intent to rob into the armed robbery count.

Judgment affirmed in part and vacated in part, and case remanded for resentencing.

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

       At the motion for new trial hearing, trial counsel testified that she went over the fact that Rogers was getting a deal because he was coming to testify against her client and felt as though she had sufficiently covered the topic at trial even though she did not specifically mention the sentence Rogers could have faced if not for his plea deal.


text:
    A14A2282.
    TRIPLE T-BAR, LLC et al. v. DDR SOUTHEAST SPRINGFIELD, LLC.
    (769 SE2d 586)
   Miller, Judge.

DDR Southeast Springfield, LLC (“DDR”), as successor-in-interest, filed suit to recover the outstanding balance on a lease agreement executed by Triple T-Bar, LLC, and guaranteed by Todd and Barbara Blackwell. After the trial court entered a consent judgment against Triple T-Bar, DDR moved for summary judgment on the ground that the Blackwells were personally liable under the guaranty. The trial court granted DDR’s motion, and the Blackwells appeal, contending that the trial court erred in granting DDR’s motion for summary judgment because DDR failed to establish that the lease agreement and guaranty were admissible business records and there were questions of fact as to whether the guaranty was enforceable. For the reasons set forth below, we affirm.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.” (Citation and punctuation omitted.) Angel Business Catalysts v. Bank of the Ozarks, 316 Ga. App. 253, 254 (728 SE2d 854) (2012).

So viewed, the evidence shows that in November 2006, Triple T-Bar entered into an agreement with Inland Southeast Springfield, LLC (“Inland”), to lease a commercial property in Lawrenceville until February 2012. The lease was signed by both Blackwells as representatives of Triple T-Bar, the Blackwells were identified in the lease as the guarantors, and the Blackwells’ personal guaranty was attached to the lease and incorporated therein by reference. The guaranty cross-referenced the lease agreement, again identified the Black-wells as the guarantors, and also identified Inland as the landlord and Triple T-Bar as the tenant. In February 2007, DDR acquired Inland and became the landlord of the property.

In April 2007, Triple T-Bar’s rent payment check was returned for insufficient funds. Triple T-Bar then failed to pay rent for the months of April 2008 and September 2008, and it made its last rent payment in October 2008. In February 2009, Triple T-Bar closed its business operations and vacated the premises without DDR’s consent, in violation of the lease agreement. When Triple T-Bar failed to re-open for business and pay past due rent as DDR requested, DDR filed suit against the Blackwells and Triple T-Bar.

1. The Blackwells contend that the trial court erred in granting summary judgment to DDR because DDR did not lay a foundation to admit the lease and the guaranty into evidence. We discern no error.

Under OCGA § 24-8-803, business records maybe admissible as an exception to the hearsay rule. The statute provides that

... a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness ...

shall not be excluded by the hearsay rule. OCGA § 24-8-803 (6).

In support of its summary judgment motion filed on May 24, 2013, DDR submitted the affidavit of its assistant general counsel and attached to the affidavit the lease agreement and the guaranty. In her affidavit, the assistant general counsel offered no testimony establishing her familiarity with DDR’s method of keeping business records, her personal knowledge about any of the transactions, or that the lease and guaranty were made in the regular course of business. As a result, DDR’s assistant general counsel failed to lay a proper foundation in her initial affidavit to admit the lease and the guaranty as business records. See, e.g., Nalley Northside Chevrolet v. Herring, 215 Ga.App. 185, 186-187 (3) (450 SE2d 452) (1994) (records attached to affidavit should not have been admitted as business records where affiant offered no testimony establishing his knowledge with the business’s method of keeping records or about the transactions, and provided no facts showing that the entries were made in the regular course of business).

Nevertheless, in a reply brief in support of its motion for summary judgment, DDR attached a second affidavit from its assistant general counsel that cured the defects in her initial affidavit. Notably, in her second affidavit, the assistant general counsel averred that she was familiar with DDR’s record keeping, lease files were maintained in DDR’s regular course of business, and DDR acquired the lease agreement in this case after merging with Inland. “[E]mployees of successor entities can authenticate business records of their predecessor entities that pass to them by virtue of merger.” (Citation and punctuation omitted.) Ware v. Multibank 2009-1 RES-ADC Venture, 327 Ga. App. 245, 249 (2) (758 SE2d 145) (2014); see also Angel Business Catalysts, supra, 316 Ga. App. at 255-256 (1) (holding that, when “routine, factual documents made by one business are transmitted and delivered to a second business and there entered in the regular course of business of the receiving business, such documents are admissible” as business records). This second affidavit was sufficient to lay a foundation. Therefore, the lease agreement and attached guaranty were properly admitted as business records.

The Blackwells argue that the trial court should not have considered the second affidavit because it was not timely filed.

OCGA § 9-11-56 (c), which requires that a motion for summary judgment be served at least 30 days before the time fixed for a hearing, and OCGA § 9-11-6 (d), which requires that when a motion is supported by affidavit, the affidavit shall be served with the motion, have been construed together to mean that an affidavit relied on in support of a motion for summary judgment must be on file for at least 30 days prior to the hearing.

(Citations and footnotes omitted.) Cordell v. Bank of North Ga., 295 Ga. App. 402, 405 (1) (b) (672 SE2d 429) (2008). In this case, neither party requested a hearing on DDR’s motion for summary judgment, and no hearing was held. Consequently, the 30-day statutory period for filing the affidavit did not apply. See Shropshire v. Alostar Bank of Commerce, 314 Ga. App. 310, 313 (2) (a) (724 SE2d 33) (2012).

Nevertheless, the requirement under OCGA § 9-11-6 (d) that an affidavit supporting a motion be served contemporaneously with the motion “is to ensure that the other side has adequate notice of and opportunity to respond to such evidence.” (Citation and punctuation omitted.) Alcatraz Media v. Yahoo! Inc., 290 Ga. App. 882, 884-885 (1) (b) (660 SE2d 797) (2008). However, “[t]rial courts may consider affidavits which are not filed or served within the time limits contemplated by the statutes, and it is not necessary to note the exercise of discretion on the record.” (Citations and footnotes omitted.) Kropp v. Roberts, 246 Ga. App. 497, 499 (540 SE2d 680) (2000).

Here, DDR submitted its second affidavit on July 29, 2013, and the trial court entered its summary judgment order on March 25, 2014. It is apparent that in granting summary judgment to DDR, the trial court considered the second affidavit because it stated that it had the briefs of the parties, all other pleadings in the case, and the record before it. Since DDR submitted the second affidavit almost eight months before the entry of the summary judgment order, the Blackwells were not surprised by its filing. In the absence of evidence in the record to the contrary, we must presume the trial court acted correctly. See Shropshire, supra, 314 Ga. App. at 314 (2) (a). Therefore, no error has been shown by the trial court’s consideration of the second affidavit.

2. The Blackwells also contend that the trial court erred in granting summary judgment to DDR because the guaranty is incomplete and the Blackwells did not intend to be personally liable for the lease. The Blackwells’ claim has no merit.

“Under Georgia’s Statute of Frauds, a personal guaranty of a debt is not enforceable unless it is in writing, is signed by the party being charged as the guarantor, and identifies the debt, the principal debtor, the promisor, and the promisee.” (Citations omitted.) Lafarge Bldg. Materials v. Thompson, 295 Ga. 637, 639 (2) (763 SE2d 444) (2014); see also OCGA § 13-5-30 (2) (“A promise to answer for the debt, default, or miscarriage of another” is not binding on the promi-sor unless it is in writing and signed by the promisor.).

Here, the lease and guaranty both identify the Blackwells as the guarantors; the guaranty was incorporated into the lease; and the guaranty provided that it served as an inducement for Inland to enter into the lease, as Inland would not have entered into the lease with Triple T-Bar had the Blackwells not executed the guaranty. The guaranty also provided that the Blackwells

absolutely, unconditionally, and irrevocably guarantees to [Inland] . . . the full and punctual performance and observance by [Triple T-Bar] of all the terms, conditions, covenants, and obligations to be performed and observed by [Triple T-Bar] under the Lease . . . including, without limitation, the payment as and when due, whether by acceleration or otherwise, of all Minimum Rent and Additional Rent (both as defined in the Lease) and any other sums payable by [Triple T-Bar] under the Lease [.]

The guaranty further provided that it was a continuing obligation that could not be impaired, diminished, or terminated for any reason.

The Blackwells’ argument that the guaranty is unenforceable because it was not dated is meritless because the guaranty provided that it was executed contemporaneously with the lease, which was signed on November 8, 2006. The Blackwells further argue that the guaranty is not enforceable because they did not initial every page and the document was not notarized, but they point to no authority holding that these omissions render the guaranty unenforceable. The Blackwells’ signatures are plainly on the guaranty, and the signatures are not alleged to be forged. Therefore, the Blackwells are charged with knowledge of and are bound by the terms of the guaranty. See Megel v. Donaldson, 288 Ga. App. 510, 516 (5) (654 SE2d 656) (2007).

Decided March 2, 2015.

Robert C. Newcomer, for appellants.

Stanley, Esrey & Buckley, Marlie A. McDonnell, for appellee.

Given that the guaranty was in writing, it identified all of the essential parties and obligations, and the Blackwells signed the guaranty, there is no question of fact that DDR, as the successor-in-interest to the promisee, was entitled to enforce the guaranty and hold the Blackwells personally liable for Triple T-Bar’s debt. See C.L.D.F., Inc. v. The Aramor eLLC, 290 Ga. App. 271, 273-274 (1) (659 SE2d 695) (2008) (concluding that the guaranty contemporaneously executed and incorporated into lease was enforceable). Accordingly, the trial court properly granted summary judgment to DDR.

Judgment affirmed.

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

       The judgment against Triple T-Bar is not challenged.


text:
    A14A2324.
    GIBBS v. BRIGHT et al.
    (769 SE2d 590)
   Phipps, Chief Judge.

Indicted on numerous counts of sexual offenses, Troy Lee Gibbs was brought to trial in the Superior Court of Wilkinson County, which proceeding ended by mistrial after the jury failed to reach a verdict. At his second trial, the jury found Gibbs guilty of nine counts of child molestation, two counts of enticing a child for indecent purposes, and two counts of solicitation of sodomy; Gibbs was sentenced to imprisonment. But Gibbs’s convictions were reversed by this court, and after the case was remitted to the superior court in October 2007, an order of nolle prosequi was entered. Thereafter, in February 2014, Gibbs petitioned the Superior Court of Wilkinson County, pursuant to Georgia’s record-restriction statute, OCGA § 35-3-37, to restrict access to his criminal history record information for the underlying offenses, and to grant him attorney fees incurred in pursuing said record restriction. In his petition, Gibbs named as respondents the Wilkinson County District Attorney, Fred Bright, as well as the Wilkinson County Sheriff’s Office. The superior court conducted a hearing, then denied Gibbs’s petition. Gibbs appeals. For reasons that follow, we affirm.

At the hearing, the state argued that Gibbs’s petition was governed by paragraph (j) (2) of OCGA § 35-3-37, which states:

When an individual was convicted of an offense and was sentenced to punishment other than the death penalty, but such conviction was vacated by the trial court or reversed by an appellate court or other post-conviction court, the decision of which has become final by the completion of the appellate process, and the prosecuting attorney has not retried the case within two years of the date the order vacating or reversing the conviction became final, such individual may petition the superior court in the county where the conviction occurred to restrict access to criminal history record information for such offense. ... If a hearing is requested, . . . [t]he court shall hear evidence and shall determine whether granting an order restricting such criminal history record information is appropriate, giving due consideration to [1] the reason the judgment was reversed or vacated, [2] the reason the prosecuting attorney has not retried the case, and [3] the public’s interest in the criminal history record information being publicly available.

As to the first of these three factors, the state cited that the judgment was reversed because Gibbs’s trial counsel had rendered ineffective assistance. Regarding the second such factor, the state proffered that the reason it had not again tried the case was that Gibbs had already served three years in prison after having two one-week-long trials. The court then turned to the assistant district attorney who had represented the state at Gibbs’s trials, and asked for “[a]nything on the second [factor]?” She responded:

[W]hen the case came back [from the Court of Appeals], because I had been the one that had been prosecuting it in both cases, there was some question as to, you know, was the State going to retry the case. We got in touch with the victim who had moved and married. Didn’t want to come back and do this for a third time. Very frustrated with the system. And so I communicated that to Mr. Bright [the district attorney]. And he put that, the reason, that he did on there. But it was not a recanted, state this on the record, she did not recant. She did not say it didn’t happen. She didn’t say, you know oh well, you know, never mind. She just said: I don’t want to go through this a third time. And, additionally, our similar transaction witnesses didn’t want to go through it a third time. So, we had three victims saying: we don’t want to do this again. And so out of respect to them, they made the decision to dismiss the case.

With respect to the third factor, the state asserted that it was important that the “public know[ ] that [Gibbs] has been previously charged with being a child molester and convicted, but reversed.”

In ruling upon Gibbs’s petition, the superior court stated in its order:

[T]he Court, pursuant to OCGA § 35-3-37 (j), finds as follows: Restricting petitioner’s criminal history record is not appropriate in considering those factors specific to this case, and it is in the public’s interest that the criminal history information be publicly available; Further, it is the finding of this Court that that public interest clearly outweighs the harm resulting to the Petitioner with that information being publicly available. Petitioner’s requests to restrict ... record and for attorney’s fees are therefore DENIED.

In this direct appeal, Gibbs contends that the superior court misapplied the cited statutory provision, OCGA § 35-3-37 (j), advancing two arguments.

1. Gibbs contends that the superior court erred by determining that subsection (j) governed his petition. He points out that the order of nolle prosequi was entered in March 2009. Therefore, Gibbs maintains in his brief:

When the prosecuting attorney entered a nolle prosequi rather than waiting the two-year period referred to in (j) (2), the (h) (2) (A) provision was triggered, thus qualifying [him] automatically for record restriction rather than requiring the application of the discretionary (j) (2) balancing test.

The provision Gibbs maintains governs his petition, OCGA § 35-3-37 (h) (2) (A), states:

Access to an individual’s criminal history record information, including any fingerprints or photographs of the individual taken in conjunction with the arrest, shall be restricted by the center for the following types of dispositions: ... (2) After indictment or accusation: (A) Except as provided in subsection (i) of this Code section, [] all charges were dismissed or nolle prossed[.]

We cannot agree with Gibbs that his petition is governed by OCGA § 35-3-37 (h) (2) (A), as opposed to OCGA § 35-3-37 (j) (2). The General Assembly, in enacting paragraph (j) (2), set forth detailed criteria as to its applicability:

When an individual was convicted of an offense and was sentenced to punishment other than the death penalty, but such conviction was vacated by the trial court or reversed by an appellate court or other post-conviction court, the decision of which has become final by the completion of the appellate process, and the prosecuting attorney has not retried the case within two years of the date the order vacating or reversing the conviction became final. . . ,

While the General Assembly could have carved from such specific parameters an exception, so as to exclude from that paragraph’s purview instances where a nolle prosequi was entered within the referenced two-year period, it did not. Where, as here, a statute contains both a general provision and a specific one, “the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within the provisions of the particular provision.”

In light of the foregoing, the trial court did not err in determining that OCGA § 35-3-37 (j) (2) governed Gibbs’s petition, as it is without question that the underlying circumstances — including the conviction, sentencing, reversal, lack of a subsequent retrial, and timing of Gibbs’s petition to restrict records — satisfied that Code provision’s detailed applicability criteria.

2. Alternatively, Gibbs contends that the trial court abused its discretion in determining that the three factors set forth in OCGA § 35-3-37 (j) (2) weighed against him.

At the hearing, Gibbs’s attorney addressed each factor as follows. Regarding the first (the reason the judgment was reversed), Gibbs’s attorney pointed out that the conclusion of ineffectiveness was premised, in part, upon Gibbs’s trial counsel’s failure to present to the jury potentially exculpatory evidence. Countering the state’s proffer with respect to the second factor (the reason the prosecuting attorney had not tried the case again), Gibbs’s attorney claimed that the fact “that [Gibbs] had already served some kind of punishment for a crime that he was never convicted of... should weigh in his favor, rather than in the prosecution’s favor.” And turning to the third factor (the public’s interest in the criminal history record information being publicly available), Gibbs’s attorney asserted that Gibbs’s “personal private interest in being free from the record outweighs the public interest in having that record available.”

Decided March 2, 2015.

Ashley L. Deadwyler, for appellant.

On appeal, however, Gibbs has cited no authority demonstrating that the superior court erred in its determination that restricting his criminal history record was not appropriate. The record confirms that, upon Gibbs’s petition, the court convened a hearing, allowed the parties to present evidence and argument, and invoked the correct legal standard.

[BJecause potential harm to individuals is the natural consequence of the maintenance and dissemination of criminal records . . . , the balancing test should not be tipped in the defendant’s favor solely on the basis of the potential harm that could accrue to a defendant in any given case.

Here, the arguments and evidence presented to the superior court did not require a finding of a diminished interest by the public in Gibbs’s criminal history record information; nor did they mandate a conclusion that restricting such information was appropriate.

Because Gibbs has failed to demonstrate merit in his contention that the trial court erred by determining, based upon its consideration of the factors set forth in OCGA § 35-3-37 (j) (2), that restricting his criminal history record information was not appropriate, Gibbs has presented no basis for disturbing the denial of his petition.

Judgment affirmed.

Ellington, P. J., and McMillian, J., concur.

FredricD. Bright, District Attorney, Daniel B. Cochran, Assistant District Attorney, for appellees.

       See Gibbs v. State, 287 Ga. App. 694-695 (652 SE2d 591) (2007).

       See id.

       Id. at 695.

       OCGA § 35-3-37 (a) (6) provides:
      “Restrict,” “restricted,” or “restriction” means that the criminal history record information of an individual relating to a particular charge shall be available only to judicial officials and criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment in accordance with procedures established by the center and shall not be disclosed or otherwise made available to any private persons or businesses pursuant to Code Section 35-3-34.

        Gibbs, supra at 696-700 (1).

       The court then stated, “Okay. Anything else?” At that point, counsel representing the state in response to Gibbs’s petition asked Gibbs’s counsel, ‘You got anything for her?” Gibbs’s counsel responded that she did not.

       See OCGA §§ 35-3-37 (j) (5) (“Any party may file an appeal of an order entered pursuant to this subsection as provided in Code Section 5-6-34.”); 5-6-34 (a) (12) (“Appeals may be taken to the Supreme Court and the Court of Appeals from the following judgments and rulings of the superior courts .. . [a]ll judgments or orders entered pursuant to Code Section 35-3-37.”).

       Neither Gibbs nor the state has claimed that subsection (i) was implicated.

       See Ga. L. 2012, p. 899, §§ 6-2 (“repealing Code Section 35-3-37, relating to inspection, purging, modifying, or supplementing of criminal records, and enacting a new Code Section 35-3-37”), 9-1 (c) (providingfor an effective date of July 1, 2013); OCGA § 35-3-37 (2012) (setting forth both versions of statute).

       See generally Goldberg v. State, 282 Ga. 542, 544 (651 SE2d 667) (2007) (“In construing a statute, the cardinal rule is to glean the intent of the legislature. Language in one part of the statute must be construed in the light of the legislative intent as found in the statute as a whole.”) (citation and punctuation omitted); Meinken v. Burgess, 262 Ga. 863, 865 (2) (426 SE2d 876) (1993) (reiterating that, in construing a statute, courts must “try to effectuate the intent of the legislature as discerned from the act as a whole”).

       OCGA § 35-3-37 (j) (2).

        Mayor &c. of Savannah v. Savannah Elec. & Power Co., 205 Ga. 429, 436-437 (54 SE2d 260) (1949) (punctuation omitted); see generally Drake v. State, 170 Ga. App. 846, 847 (1) (318 SE2d 721) (1984) (noting various usages and effects of an order of nolle prosequi).

       See generally Goldberg, supra; Mayor, supra.

       See generally Meinken, supra at 866 (2) (contemplating a “balancing of equities” by the superior court, and holding that “a superior court’s decision on expungement will not be disturbed on appeal unless there has been an abuse of discretion”).

       See Gibbs, supra at 696-698 (1) (a) (i)-(ii) (citing evidence that the alleged victim had accused other men of sexually molesting her, then later recanted the accusations).

        Meinken, supra; see OCGA § 35-3-37 (j) (2) (setting forth factors to be considered by court when determining whether restricting criminal history record information is appropriate).

       “For instance, if an arrest results from any illegality or misconduct on the part of the police, the arrest record may not be indicative of the individual’s criminal propensity and the maintenance of the record may therefore be of little value to [the public].” Meinken, supra (citations omitted). See also Drake, supra (noting that “mere entry of nolle prosequi does not indicate an absence of the commission of a criminal act. . .”).

       See generally Meinken, supra at 865 (2) (noting Georgia’s “public policy favoring the maintenance and dissemination of such records”).