text:
    A12A1233.
    FLOYD v. THE STATE.
    (732 SE2d 527)
   Boggs, Judge.

We granted Ashley Floyd’s application for discretionary review of a trial court order revoking her probation. Because the trial court did not err in revoking Floyd’s probation, but did err in refusing to give her credit for time served, we affirm in part and vacate in part, and remand this case with direction.

“A court may not revoke any part of any probated or suspended sentence unless the defendant admits the violation as alleged or unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged.” OCGA § 42-8-34.1 (b); see Thurmond v. State, 304 Ga. App. 587 (696 SE2d 516) (2010). This court will not interfere with a probation revocation unless the trial court manifestly abused its discretion. Avery v. State, 313 Ga. App. 259 (721 SE2d 202) (2011).

The record reveals that on May 17,2010, Floyd pled guilty to five counts of the possession of various drugs. The trial court sentenced her to “seven years to serve two years in custody,” with a credit of 14 days for the time she served following her arrest. As a condition of probation, Floyd was required to complete a drug treatment program called “Odyssey,” in which she was already enrolled at the time of her plea. As a “condition of sentence” the trial court ordered: “custodial sentence to be backloaded. If [Floyd] does not complete probation and Odyssey program successfully, [Floyd] to be placed in custody.”

Less than six months after receiving her probated sentence, Floyd was arrested for allegedly committing the offense of possession of a controlled substance. The State filed a petition to revoke Floyd’s probation on the ground that she had been arrested for a controlled substance and failed to complete the Odyssey program as directed.

At a February 2011 hearing on the revocation petition, Floyd stipulated that she did not complete the Odyssey program. The State presented a letter from the Odyssey program apparently stating that the last time Floyd attended the program was on May 19, 2010, two days after her sentencing hearing. Her counsel offered an explanation that Floyd was in a car accident and was receiving “ongoing medical treatment” for a head injury. Counsel explained that Floyd had been in the program for six months and that the accident occurred on August 24, 2010. Floyd herself explained that she also could not complete the program because she didn’t “have anyone to keep [her] daughter.” When Floyd claimed that she did in fact attend after May 19, 2010, the trial court “reset [this] case” to give trial counsel “an opportunity to find out if there is some other reason [Floyd] didn’t complete the program. And if that letter is not correct, then if there’s anything you want to present to the court in that regard, then we can hear it then.”

At the second hearing on the matter in November 2011, Floyd’s probation officer testified that Floyd enrolled in the Odyssey program on May 6, 2010 (11 days before her guilty plea and sentence) and attended three classes: May 11, May 13, and May 19. The probation officer stated that Floyd did not return after the May 19 class. Floyd’s counsel argued for the first time that the court could not revoke her probation for failure to complete the drug treatment program because there was no deadline for completion, and under the terms of Floyd’s sentence, she still had another four years of probation to complete the program. The trial court disagreed and revoked the two years it had originally “backloaded” and gave Floyd “[c]redit for time served since 11-3-2010,” when Floyd was jailed on the October 2010 possession charge. The court refused, however, to give Floyd credit for the 14 days she served prior to her guilty plea and sentence, stating, “She got credit for the 14 days when she was sentenced... [s]o why should she get credit for that time again?”

1. On appeal, Floyd argues that the State did not present sufficient evidence to show that she violated her probation. Specifically, Floyd contends that under Huff v. McLarty, 241 Ga. 442 (246 SE2d 302) (1978), and Marks v. State, 306 Ga. App. 824 (703 SE2d 379) (2010), she could not violate a condition of probation that required her to complete a drug treatment program because “[t]he sentence itself never indicated that there was any advanced deadline for completing the . . . [p]rogram.”

In Marks, the defendant’s conditions of probation included the requirement that he have no contact with his ex-wife and that he “enter into and successfully complete a domestic violence intervention program.” (Punctuation omitted.) 306 Ga. App. at 824. He reported to his probation officer on February 18, 2010, and was assigned to a domestic violence intervention program that was scheduled to begin on March 25, 2010. When the defendant was arrested on March 3, 2010 for harassing his ex-wife, the trial court revoked his probation for both contacting his ex-wife and failing to complete the intervention program. Id. at 824-825. In reversing the revocation, this court held that “[t]he sentence did not require Marks to complete the program by any specific date during the term of his ‘Intensive Probation Supervision." Id. at 826-827 (2).

In Huff, supra, the defendant was required to pay a fine of $500 as a condition of probation. 241 Ga. at 442. But before serving his sentence of 12 months probation, he was arrested for the failure to pay the fine and ordered to serve 12 months in confinement. Id. at 443. The Supreme Court of Georgia held that “because the fine was not lawfully required to be paid by any certain date” officials had no right to revoke probation for his alleged failure to comply with its terms. Id. at 447.

Both Huff and Marks are factually distinguishable from the present case. In Marks, the defendant had not yet had an opportunity to attend the intervention program because he was arrested before the program began, and in Huff, the defendant had not yet begun to serve his sentence of 12 months of probation when it was revoked.

Regardless of the facts presented, however, Huff and Marks both rely upon the well-settled rule that “the trial court has the obligation to make criminal sentences, including the terms of probation, certain, definite and free from ambiguity, and the benefit of any doubt shall be given the accused.” (Citation, punctuation and footnote omitted.) Marks, supra, 306 Ga. App. at 825. Here, the trial court’s order was ambiguous in that it did not provide a specific date by which Floyd was required to complete the drug treatment program. But that is not the end of our analysis.

“An accused is entitled to rely on the provisions set forth in the sentencing document if he is not informed to the contrary when the sentence is imposed.” (Citations, punctuation and footnote omitted; emphasis in original.) Otuwa v. State, 303 Ga. App. 410, 411 (1) (693 SE2d 610) (2010). Here, prior to sentencing Floyd, the trial court explained: “the maximum sentence that can be imposed in this case is a hundred years in custody. Do you understand that?,” to which Floyd responded: “Yes, Sir.” After some colloquy to establish the voluntariness of Floyd’s plea, the court sentenced Floyd:

I’m going to impose a sentence of seven years to serve two years in custody, but I will back load the two years so that in the event that you are able to finish the drug treatment program that you’re under, which I believe is called the Odyssey program, you can finish that successfully and stay clean during the time you’re on probation. You must submit to random urine screens and drug tests.
If you stay clean and stay out of trouble, then I will waive the two years in custody. However, in the event that you don’t finish the program, you are going off for two years. Do you understand that?

(Emphasis supplied.) Floyd again responded: ‘Yes, Sir.” Floyd was therefore well aware that her probation could be revoked for her failure to complete the program in which she was already enrolled. By entering into the Odyssey program and attending classes prior to her plea, Floyd framed the terms of her sentence, presumably to gain leniency or favor with the court. She should not be allowed to “game the system” by gaining that favor, receive the benefit and then attend only one more class and never return. While Floyd maintained that she did not complete the program because of medical treatment and a lack of childcare, she never brought these issues to the attention of the court before the State sought revocation, nor did she at any time during the probation revocation hearing express an intent to re-enter and complete the program.

We have held that service of probation is a privilege, and that while a person is on probation, his private life and behavior may be regulated by the State to an extent that would be completely untenable under ordinary circumstances. Nevertheless, the trial court has the authority to revoke a probationary sentence only when the defendant has violated rules and regulations prescribed by the court.

(Citations, punctuation and footnotes omitted; emphasis supplied.) Marks, supra, 306 Ga. App. at 825. Under the circumstances presented here, the ambiguity in the form of the sentencing document was not fatal to the court’s revocation of Floyd’s probation. See Otuwa, supra, 303 Ga. App. at 412 (1) (ambiguity in sentencing document not fatal where defendant informed at plea hearing that he could receive maximum term if he violated probation); Beeks v. State, 169 Ga. App. 499, 499-500 (1) (313 SE2d 760) (1984) (sentence not erroneous where defendant informed at hearing he could be sentenced to ten years upon revocation). As Floyd “violated [a] rule . . . prescribed by the court” in failing to complete the program she had already begun, the trial court did not manifestly abuse its discretion in revoking her probation. See, e.g., Burson v. State, 161 Ga. App. 107, 109 (2) (289 SE2d 254) (1982) (where defendant by his own actions was no longer enrolled in treatment program that was a condition of probation, court did not manifestly abuse its discretion in revoking probation).

Decided September 13, 2012.

Gerard B. Kleinrock, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Deborah Venuto, Assistant District Attorneys, for appellee.

2. The trial court did err however, in failing to give Floyd a credit for 14 days for time served as outlined in her sentence. The trial court refused to give Floyd credit for the 14 days because “she got credit for the 14 days when she was sentenced.” But while Floyd received the 14 days’ unspecified credit at sentencing, the credit was not applied specifically to either her period of confinement or to her probationary period. Therefore, the trial court erred in failing to credit Floyd for 14 days when it revoked her probation. For this reason, we vacate this portion of the trial court’s revocation order and remand with direction that the trial court give Floyd 14 days’ credit for time served.

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

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

       Two of the charges were for possession with the intent to distribute.

       The possession charge was not presented to the grand jury.

       The sentencing order in this case lacks clarity in several respects. First, it states: “As to Cts. 1, 2, 3, 4, 5 seven years to serve two years in custody.” But there is no indication in the section of the order providing for probation that a portion of the sentence may be served on probation. Second, on a preprinted line providing “Other Conditions of Probation,” the word “Probation” is crossed out and the word “Sentence” is handwritten in its place. Finally, the order provides that “custodial sentence to be backloaded,” with no explanation of the term “back-loaded,” and no explanation as to what would become of the “backloaded” two years in the event that Floyd completed the five years of probation successfully. It would have been more appropriate for the court to suspend the two years of the custodial portion of Floyd’s seven-year sentence to allow her to serve that time on probation, subject to the condition that she complete the Odyssey program.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A12A0879.
    GROVNER v. THE STATE.
    (732 SE2d 282)
   Miller, Judge.

Following a jury trial, Nathaniel Grovner was convicted of perjury (OCGA § 16-10-70 (a)). Grovner appeals from the denial of his motion for new trial, contending that the trial court erred in granting the State’s motion to strike a potential juror for cause and in limiting his cross-examination of a witness. Grovner also contends that the trial court erred in denying his motion for directed verdict because the State failed to introduce evidence showing that he was lawfully administered an oath in the proceeding in which he was accused of perjury. For the reasons that follow, we affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Punctuation and footnote omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

So viewed, the evidence shows that on the night of the November 4, 2008 general elections, Robert Mucha, chairman of the board of elections and registrars of McIntosh County, was present at the main election office assisting and supervising the committee responsible for tallying absentee ballots. Grovner, a McIntosh County commissioner, was also present to observe the tally process. Following the final tally of all votes, it was determined that Griffin Lotson lost the race for the post of McIntosh County soil and water conservation district supervisor.

Lotson subsequently filed a petition to contest the election, contending that election officials engaged in misconduct or fraud. At the hearing on the petition, Lotson called Grovner as a witness. Grovner testified that “[on] the night of the election . . . , after [the committee] thought they were through counting ballots [,] Mr. Mucha came with a handful of absentee ballots and said to the committee, [‘0]h, look what I found that’s got to be counted. [’]” Grovner further testified that Mucha claimed to have found between 500 and 600 additional absentee ballots that needed to be tallied. The trial court denied Lotson’s petition, finding no irregularities or fraud in the election process.

Grovner was subsequently indicted for perjury based on his alleged false prior testimony at the contested election proceeding that on the night of the elections, Mucha had declared finding an extra 500 to 600 additional absentee ballots that needed to be counted. At Grovner’s perjury trial, the State called numerous witnesses who testified that, contrary to Grovner’s prior testimony, Mucha never said that he had found an additional 500 absentee ballots that needed to be tallied. Following the presentation of evidence, the jury found Grovner guilty of perjury.

1. Grovner contends that the trial court erred in granting the State’s motion to strike a potential juror for cause. We disagree.

Whether to strike a juror for cause is within the sound discretion of the trial court. And inasmuch as the trial court’s conclusion on bias is based on findings of demeanor and credibility, which are peculiarly within the trial court’s province, those findings are to be given deference.

(Citations and punctuation omitted.) Wolfe v. State, 273 Ga. 670, 672 (2) (544 SE2d 148) (2001).

During voir dire, the potential juror stated that she was strongly partial to one side and had held those feelings of partiality for a long time. Despite the juror’s repeated statements that she could set aside her partiality and decide the case based upon the evidence, the trial court excused the juror for cause upon the State’s motion. Although Grovner contends that the trial court erred in doing so, he had “no vested interest in having any particular juror to serve; he [was] entitled only to a legal and impartial jury. The erroneous allowing of a challenge for cause affords no ground of complaint if a competent and unbiased jury is finally selected.” (Punctuation and footnote omitted.) Felton v. State, 270 Ga. App. 449, 451 (1) (606 SE2d 649) (2004); see also Humphreys v. State, 287 Ga. 63, 71 (4) (694 SE2d 316) (2010). Since Grovner has not shown that the jurors selected to decide his case were incompetent or biased, his claim affords no basis for reversal. See Humphreys, supra, 287 Ga. at 71 (4); Bryant v. State, 288 Ga. 876, 881-882 (4) (e) (708 SE2d 362) (2011).

2. Grovner contends that the trial court erred in limiting his cross-examination of Mucha regarding his attempts to determine whether Grovner would be removed from his position as county commissioner prior to trial. We disagree.

“Although the appellant is entitled to a thorough and sifting cross-examination of a witness, the scope of such cross-examination is within the sound discretion of the trial court.” (Citations and punctuation omitted.) Moon v. State, 288 Ga. 508, 511 (3) (705 SE2d 649) (2011). “In assessing whether the limits imposed by the trial court were reasonable, our task is to determine whether the jury had sufficient information to make a discriminating appraisal of the witness’s motives and bias.” (Citation and punctuation omitted.) Haggard v. State, 302 Ga. App. 502, 506 (2) (690 SE2d 651) (2010).

During cross-examination of Mucha, Grovner’s counsel was able to elicit testimony that Mucha asked law enforcement to investigate Grovner for perjury; that he drafted and presented affidavits to witnesses used to support the investigation; and that he sent an e-mail to the county attorney requesting that Grovner be prosecuted for perjury. When Grovner sought to ask Mucha if he recalled whether the governor’s office would schedule a review to determine whether Grovner should remain a county commissioner based on his indictment, the State objected on relevancy grounds. Grovner contends that Mucha had previously made a statement that he called the governor’s office every day, twice a day, to determine whether a review would be held, and that such was relevant to show Mucha’s bias and interest. In light of Grovner’s counsel’s extensive cross-examination of Mucha showing his active involvement in bringing the perjury charge against Grovner, the jury had sufficient information to determine Mucha’s motives and bias. As such, the trial court did not abuse its discretion in limiting Grovner from asking Mucha about the frequency with which he called the governor’s office.

3. Grovner also contends that the trial court erred in denying his motion for directed verdict because the State failed to present evidence establishing that he was ever administered a lawful oath when he testified at the hearing on the petition disputing the November 2008 election results. His claim is without merit.

In reviewing the denial of a motion for a directed verdict of acquittal, we apply the same standard of review applicable to a challenge to the sufficiency of the evidence. Under that standard, 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.

(Citations and punctuation omitted.) Walker v. State, 314 Ga. App. 714, 716 (1) (725 SE2d 771) (2012).

One of the essential elements of the perjury offense is that a “lawful oath” be administered to the defendant in a judicial proceeding. OCGA § 16-10-70 (a); Kirkland v. State, 140 Ga. App. 197 (1) (230 SE2d 347) (1976). “[Wjhere there is evidence that an oath was administered to a witness, it will be presumed in the absence of proof to the contrary that a lawful or statutory oath was administered.” (Citation and punctuation omitted.) Beecher v. State, 164 Ga. App. 54, 56 (3) (296 SE2d 374) (1982); see also Kirkland, supra, 140 Ga. App. at 198 (1).

At Grovner’s trial, the State introduced into evidence a certified transcript of the disputed election hearing where Grovner had previously testified. See Walker, supra, 314 Ga. App. at 718 (3) (“As a general rule, to prove that the defendant made a perjured statement in a former judicial proceeding, the State must introduce the record of the former proceeding or a duly authenticated transcript.”) (citations and punctuation omitted). Although the transcript does not reveal the full oath that was administered to Grovner, it does show that he was duly sworn before testifying. Grovner argues that this transcription is hearsay, and therefore lacking probative value. In making the transcription, however, the court reporter was not making an out-of-court statement, but was rather recording the in-court statements made by others, including Grovner himself. See McClain v. State, 311 Ga. App. 750, 752 (716 SE2d 829) (2011) (“[H]earsay generally relates to an out-of-court statement made by someone other than the witness”) (footnote omitted). Since the certified court reporter attested to the truth of the transcript, the transcript was properly authenticated and was the best evidence of what transpired during the trial. See OCGA § 24-7-20 (“The certificate or attestation of any public officer . . . shall give sufficient validity or authenticity to any copy or transcript of any record ... to admit the same in evidence.”); OCGA § 24-5-31 (“Copies of records of judicial proceedings... shallbe admitted as primary evidence, when properly authenticated.”); Sikes v. State, 76 Ga. App. 883, 885 (2) (47 SE2d 677) (1948) (providing that the highest and best evidence of a judicial proceeding is the record of the trial). Moreover, “[t]he trial transcript certified by the court reporter is presumed to be true, accurate, and correct. OCGA § 15-14-5.” Willis v. Willis, 288 Ga. 577, 581 (3) (i) (707 SE2d 344) (2011). Notably, Grovner provides no evidence showing that the trial transcript was incorrect. Indeed, Grovner admitted at his perjury trial that he was obligated to tell the truth at the disputed election hearing. Since the trial transcript reflects that Grovner was duly sworn, and he failed to provide any evidence to the contrary, it is presumed that a lawful oath was administered. Cf. Kirkland, supra, 140 Ga. App. at 198 (1).

Decided August 30, 2012

Reconsideration denied September 14, 2012

Robert L. Crowe, for appellant.

Tom Durden, District Attorney, Clara E. Bucci, Assistant District Attorney, for appellee.

Grovner also argues that admission of this transcription violated the Confrontation Clause of the Sixth Amendment to the United States Constitution. However, when the State sought to introduce the transcript, he objected only on hearsay grounds. By failing to raise a Confrontation Clause objection at trial, Grovner is procedurally barred from raising the issue on appeal. See Character v. State, 285 Ga. 112, 117 (3) (674 SE2d 280) (2009); Kirkland v. State, 315 Ga. App. 143, 147 (2) (726 SE2d 644) (2012). Consequently, the trial court did not err in denying Grovner’s motion for a directed verdict on the ground that the State failed to present evidence of a lawfully administered oath.

Judgment affirmed.

Mikell, P. J., and Ray, J., concur.


author: Miller, Presiding Judge.

text:
    A12A1625.
    FARLEY v. THE STATE.
    (732 SE2d 131)
   Miller, Presiding Judge.

Following a jury trial, Stephen Andrew Farley was convicted of sale of cocaine (OCGA § 16-13-30 (b)),saleof ecstasy (OCGA § 16-13-30 (b)), and illegal use of a communication facility (OCGA § 16-13-32.3 (a)). Farley filed a motion for new trial, which the trial court denied. On appeal, Farley contends that (1) he did not knowingly and intelligently waive his right to counsel before deciding to represent himself at trial; (2) the trial court erred in admitting similar transaction evidence; and (3) his convictions must be reversed because testimony regarding his earlier withdrawn guilty plea was interjected at trial. Discerning no error, we affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Punctuation and footnote omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

So viewed, the evidence shows that on November 17, 2008, two Georgia Bureau of Investigation (“GBI”) undercover agents encountered Farley in Carrollton, Georgia. The GBI agents engaged Farley in a discussion about purchasing approximately $100 worth of crack cocaine. Although Farley did not have the crack cocaine in his possession at the time, he advised the agents that he could arrange a transaction in a few hours. After exchanging telephone numbers, the agents called Farley a short while later. Farley directed the agents to a recreation center in Carrollton and advised them that his friend, “Tramp,” would arrive in a red vehicle and provide the crack cocaine. Farley and Tramp arrived at the recreation center in a red Mustang. Farley instructed one of the agents to meet with Tramp inside the Mustang to complete the cocaine sale. Tramp handed crack cocaine to the agent, and the agent gave $100 to Farley. Following the drug transaction, the agents secured the cocaine and turned it over to GBI as evidence. Subsequent tests on the drugs established that it was cocaine weighing approximately 2.38 grams.

A few weeks after this first transaction, one of the GBI undercover agents called Farley about making another drug purchase. During this second encounter, Farley assisted the other GBI undercover agent with the purchase of ecstasy pills. The pills subsequently tested positive for the presence of N-benzylpiperazine (BZP) and l-(3-trifluoromethylphenyl) piperazine (TFMPP).

On appeal, Farley challenges the following issues.

1. Farley contends that his convictions must be set aside because he did not knowingly and intelligently waive his right to counsel. We disagree.

The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. The trial judge has the responsibility of determining whether the accused has intelligently waived his right to counsel.

(Punctuation and footnote omitted.) Bollinger v. State, 272 Ga. App. 688, 689 (1) (613 SE2d 209) (2005). Farley argues that the trial court and prosecutor failed to make certain inquiries before allowing Farley to represent himself, specifically referencing the six factors cited in Banks v. State, 260 Ga. App. 515, 519 (2) (580 SE2d 308) (2003). However, the Supreme Court of Georgia has emphasized

that the rote application of [this] six-part test ... is not mandated, and a defendant’s waiver of his right to counsel is valid if the record reflects that the defendant was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver.

(Punctuation and footnote omitted.) State v. Evans, 285 Ga. 67, 68-69 (673 SE2d 243) (2009).

Here, the record shows that approximately one week prior to his trial, Farley informed the trial court that he wanted to represent himself because he disagreed with his attorney about how to present the case. At this hearing, the trial court warned Farley that the State was represented by an experienced attorney, who would be abiding by the rules of evidence, and that the court could not relax those rules for Farley. The trial court advised Farley that an attorney could be of great assistance in a trial, in that an attorney could assist Farley in preparing for the sentencing phase of trial, preparing witnesses, cross-examining witnesses, preparing suggested jury charges, and subpoenaing witnesses to testify. Farley indicated that he understood the trial court’s concerns and the consequences of representing himself. The trial court again cautioned Farley that it was important to have representation by an attorney, who could help Farley understand his right not to incriminate himself and the State’s burden of proof at trial. The trial court advised Farley that while he had the right to represent himself, he needed “to weigh the consequences of that right carefully.” At this same hearing, the State then proceeded to inform Farley of the charges against him, lesser included offenses, and the ranges of punishment for each offense and lesser included offense. The State advised Farley that, due to a prior drug conviction, he could be facing life imprisonment on some counts, and further that, since the various sentences could run either concurrently or consecutively, Farley was potentially facing more than one life sentence. After hearing the dangers of self-representation, Farley nevertheless decided he was going to represent himself.

At the start of Farley’s trial, the trial court once again brought up Farley’s decision to represent himself, inquiring into Farley’s education, ability to read and write, his mental state, and whether anyone had made any threats or promises in exchange for his self-representation. The trial court questioned whether Farley understood that it was the trial judge, and not the State, that would be sentencing him, and Farley responded in the affirmative. The State then proceeded to reiterate the ranges of punishment that Farley was facing for each offense, as well as the possibility of consecutive sentences, including life sentences. The trial court advised Farley that an attorney could assist in filing pretrial motions, including motions in limine, the jury selection process, making an opening statement, calling and examining witnesses, and making evidentiary objections. Farley stated that he understood and had previously witnessed these processes at trial. The trial court further reminded Farley about the disadvantages he would face, as someone not trained as an attorney, in understanding the rules of evidence and procedure, suggesting jury charges, making a closing argument, presenting mitigating evidence during the sentencing phase of the trial, and preserving for appeal errors that might occur during trial. Farley consistently stated that he understood and was familiar with each aspect of the trial. The trial court’s final words of advice to Farley were to make use of an attorney during trial and to ensure that he was thoroughly aware of what he was giving up should he decide to waive his right to an attorney. Once again, however, Farley stated, on the record, that he was choosing to represent himself, and that he understood his rights during the trial. The trial court nevertheless allowed Farley’s former attorney to sit at the defense table and be available to Farley for questions and research purposes.

Given the trial court’s repeated words of caution to Farley about the dangers of self-representation, repeated discussions about the benefits of having representation by a trained and experienced attorney, and Farley’s repeated indications that he understood what he was undertaking, the record clearly shows that Farley’s waiver of his right to counsel was made knowingly and intelligently. See Evans, supra, 285 Ga. at 69. Moreover, in light of the fact that Farley’s former trial counsel was present to assist Farley in his self-representation, “[tjhis is not a case where the defendant stood trial alone with no assistance or protection of his rights.” (Punctuation and footnote omitted.) Bollinger, supra, 272 Ga. App. at 691-692 (1). Under these circumstances, the trial court did not err in concluding that Farley’s waiver was valid.

2. Farley next contends that the trial court erred in admitting similar transaction evidence of a 1992 drug transaction. Again, we disagree.

“Before admitting similar transaction evidence [,] 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). “Implicit also are the concepts that the evidence must be relevant to an issue in the case and that its probative value outweighs its prejudicial effect.” (Citations and punctuation omitted.) Morrison v. State, 300 Ga. App. 405, 407 (685 SE2d 413) (2009).

When reviewing the trial court’s factual findings regarding whether the [Sjtate satisfied the three-prong test, we apply the “clearly erroneous” standard. The decision to admit similar transaction evidence which satisfies the three-prong test is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion.

(Punctuation and footnotes omitted.) Wright, supra, 313 Ga. App. at 831 (1) (a).

Here, the State gave its notice of intent to introduce at trial evidence that Farley sold cocaine to undercover GBI agents in 1992. Contrary to Farley’s contention otherwise, the trial court did hold a similar transaction evidence hearing. During the hearing, the State introduced the testimony of the GBI agent who positively identified Farley as the man who, in 1992, had sold $15 worth of crack cocaine to him while he was working undercover in Carrollton, Georgia. The State explained that evidence of this 1992 hand-to-hand, street-level cocaine sale bore elements of similarity to the hand-to-hand, street-level cocaine sales at issue, and that the evidence was being proffered to demonstrate Farley’s modus operandi and course of conduct in the instant case. At the conclusion of the hearing, the trial court ruled that the 1992 incidents were not too remote, were sufficiently similar to the cocaine offenses charged, and could be used for the proper purpose of showing Farley’s knowledge or intent.

On appeal, Farley specifically challenges the admission of the 1992 incidents on the grounds that there was an insufficient showing of similarity to the instant offenses, and because the 1992 incidents were too remote in time to be relevant. There is no merit to Farley’s contentions. Given that the evidence established that both the 1992 and instant offenses involved Farley’s hand-to-hand, street-level sale of crack cocaine to undercover GBI agents during drug investigations in the same city, the trial court did not clearly err in finding that Farley’s prior drug offenses were sufficiently similar. Cf. Morrison, supra, 300 Ga. App. at 408 (holding that trial court was authorized to find that defendant’s prior drug offenses were sufficiently similar where the evidence established that each of defendant’s “offenses involved the sale of $20 worth of crack cocaine to undercover officers or informants during drug investigations in the same neighborhood in Hall County”).

Moreover, the 18-year lapse of time between the prior incidents and the offenses at issue here did not require exclusion of the evidence. Given Farley’s imprisonment during the period between the two incidents, the earlier incident was not too remote in time. See Spead v. State, 218 Ga. App. 547, 549 (1) (462 SE2d 635) (1995). Notably, only three years passed between Farley’s 2005 release from prison following his 1992 drug conviction and the 2008 drug offenses at issue in this case. Cf. Speagle v. State, 217 Ga. App. 577, 580 (2) (458 SE2d 852) (1995) (concluding that 14-year period between the offenses did not render prior offense too remote where defendant was incarcerated for several years during that period); Brunson v. State, 207 Ga. App. 523, 525 (428 SE2d 428) (1993) (holding that prior offenses were not too remote to be admissible where only 19 months passed from the date of defendant’s release from prison for the prior convictions until his arrest for the current charges). “In any event, the lapse of time between the prior occurrence and the offenses charged goes to the weight and credibility of such testimony, not its admissibility.” (Citations and punctuation omitted.) Spead, supra, 218 Ga. App. at 549 (1).

Decided September 14, 2012

Jennifer A. Trieshmann, for appellant.

Accordingly, the trial court did not abuse its discretion in allowing the State to introduce evidence of Farley’s 1992 drug transaction.

3. In his final enumeration of error, Farley contends that his convictions must be reversed because testimony regarding his earlier withdrawn guilty plea to the sale of cocaine was interjected at trial. There is no merit to Farley’s claim of error.

OCGA § 17-7-93 (b) provides, in pertinent part, that “[a]t any time before judgment is pronounced, the accused person may withdraw the plea of ‘guilty’ and plead ‘not guilty’; and the former plea shall not be admissible as evidence against him at his trial.” (Punctuation omitted.) See also Shoemake v. State, 213 Ga. App. 528, 529 (445 SE2d 558) (1994).

Here, it was Farley himself, acting in his self-representative capacity, who interjected testimony regarding his earlier withdrawn guilty plea to the sale of cocaine. As an initial matter, we note that “one cannot complain of an alleged error that his own conduct procured or aided in causing.” (Footnote omitted.) Miller v. State, 292 Ga. App. 641, 643 (3) (666 SE2d 35) (2008). Even to the extent Farley could complain, any such error was harmless in light of the overwhelming evidence of Farley’s guilt in this case. See Dixon v. State, 268 Ga. App. 215, 219 (1) (b) (601 SE2d 748) (2004).

Judgment affirmed.

Ray and Branch, JJ., concur.

Peter J. Skandalakis, District Attorney, Jeffery W. Hunt, Assistant District Attorney, for appellee.

       This six-part test specifically requires the State to show, through either a trial transcript or other extrinsic evidence, that the accused understood (1) the nature of the charges against him, (2) any statutory lesser included offenses, (3) the range of possible punishments for the charges, (4) possible defenses, (5) mitigating circumstances, and (6) any other facts necessary for a broad understanding of the matter. Otherwise, there is no valid waiver.
      (Citation and punctuation omitted.) Banks, supra, 260 Ga, App. at 519 (2).

       In addition to the GBI agent’s positive identification, the State also introduced a certified copy of Farley’s conviction for the 1992 drug transaction.

        See Barnes v. State, 287 Ga. 423, 426 (3) (696 SE2d 629) (2010) (noting that bent of mind, course of conduct, and intent with regard to a drug charge are all proper purposes for offering evidence of a similar transaction); McClain v. State, 220 Ga. App. 474, 476-477 (5) (469 SE2d 756) (1996) (noting that knowledge and intent are some of the purposes deemed proper for offering similar transaction evidence).


author: McFadden, Judge.

text:
    A12A1368.
    GARMON v. THE STATE.
    (732 SE2d 289)
   McFadden, Judge.

After a jury trial, John Lamar Garmon was convicted of aggravated battery, burglary, and criminal attempt to commit armed robbery. As detailed below, we find that the evidence was sufficient to authorize Garmon’s convictions and the trial court did not abuse its discretion in denying his motion to sever his trial from that of his co-defendant, Eddie Dodd. Accordingly, we affirm.

1. Garmon challenges the sufficiency of the evidence. On appeal, “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.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence showed that, early in the morning on July 23,2008, Larry Cleveland awoke to find two men in his bedroom. The men beat Cleveland with their fists and a flashlight. The men also demanded his keys and money. Cleveland fought with the men and chased them out of his house. In doing so, he glimpsed both men’s faces. In the course of the altercation, Cleveland sustained injuries to his head that required numerous stitches and staples and resulted in a scar on his face. At trial, Cleveland identified John Garmon and Eddie Dodd as the two men he had seen in his bedroom.

“The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8; accord Wilcox v. State, 310 Ga. App. 382, 384-385 (713 SE2d 468) (2011). So Cleveland’s testimony that Garmon was one of the two men who came into his house, beat him with fists and a flashlight, and demanded his keys and money authorized the jury to find Garmon guilty of burglary, aggravated battery, and criminal attempt to commit armed robbery. See OCGA §§ 16-4-1 (a person commits criminal attempt when, with intent to commit a specific crime, he performs an act constituting a substantial step toward the crime’s commission); 16-5-24 (a) (a person commits aggravated battery when he maliciously causes another bodily harm by seriously disfiguring the victim’s body); 16-7-1 (b) (a person commits burglary when, without authority and with the intent to commit a felony or theft, he enters another’s dwelling house); 16-8-41 (a) (a person commits armed robbery when, with the intent to commit theft, he takes another’s property from another’s person or immediate presence by use of an offensive weapon). See also Brown v. State, 275 Ga. App. 99, 100-101 (1) (619 SE2d 789) (2005) (evidence that husband struck wife on head with sword, causing wounds that required stitches, was sufficient to authorize conviction for aggravated battery); Livery v. State, 233 Ga. App. 882, 884 (1) (506 SE2d 165) (1998) (an offensive weapon includes an instrumentality that, while not offensive per se, may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of its use). Although Garmon challenges the credibility of Cleveland and other trial witnesses who corroborated Cleveland’s testimony, on appeal we do not judge witness credibility and “[t]he resolution of [any] conflicts in the evidence is entrusted to the jury.” (Citation omitted.) Brown, 275 Ga. App. at 101 (1).

2. Garmon challenges the trial court’s denial of his motion to sever his trial from that of his co-defendant, Dodd. Where, as here, defendants are jointly indicted for a noncapital felony, they “may be tried jointly or separately in the discretion of the trial court.” OCGA § 17-8-4 (a).

In exercising that discretion, the court must consider the following factors: (1) Will the number of defendants create confusion as to the law and evidence applicable to each? (2) Is there a danger that evidence admissible against one defendant will be considered against the other despite the court’s instructions? (3) Are the defenses of the defendants antagonistic to each other or to each other’s rights?

(Citation and punctuation omitted.) Butler v. State, 290 Ga. 412, 413 (2) (721 SE2d 876) (2012).

Garmon asserts that the trial court was required to expressly address in its ruling each of the above three factors. We disagree. The requirement that a trial court consider certain factors in making a discretionary ruling does not necessarily mean that the court must expressly articulate in its ruling its specific findings on those factors. See Clay v. State, 290 Ga. 822, 835-837 (3) (B) (725 SE2d 260) (2012) (holding that trial court should apply five factors in conducting balancing test to determine admissibility of evidence of witness’s past conviction, when conviction was within ten years, but overruling Court of Appeals decisions requiring trial court to expressly list the specific factors in its ruling thereon). Garmon has cited no authority requiring the trial court to make express findings on each factor to be considered in ruling on a motion to sever. The statute authorizing the defendants to be tried jointly requires only that the trial court exercise its discretion without specifying any specific findings that the court must make in that regard. Compare OCGA § 17-8-4 (a) with OCGA § 9-15-14 (b) (setting forth specific findings a court must make to support an award of attorney fees and expenses of litigation) and OCGA § 9-11-23 (f) (3) (requiring trial court, in deciding whether to certify a class, to enter a written order addressing whether factors set out in other subsections of Code section have been met and specifying findings of fact and conclusions of law supporting court’s decision as to each factor). Moreover, we have found no cases requiring express findings on the factors pertaining to a motion to sever. Compare Porter v. Felker, 261 Ga. 421, 422 (3) (405 SE2d 31) (1991) (vacating award of attorney fees under OCGA § 9-15-14 because trial court’s order did not contain findings of conduct that authorized award under that Code section); Aleman v. UHS-Pruitt Holdings, 306 Ga. App. 650, 650-651 (703 SE2d 96) (2010) (vacating ruling on class certification because trial court failed to specify any findings of facts or conclusions of law on which it based its decision regarding certain class certification factors, as it was required to do under OCGA § 9-11-23 (f) (3)); Bryant v. State, 265 Ga. App. 234, 236 (593 SE2d 705) (2004) (requiring trial court to enter findings of fact and conclusions of law on factors pertaining to speedy trial decision, but recognizing that “[i]n other circumstances, a summary order entered by a trial court generally is sufficient to enable the appellate court to determine whether the broad discretion vested in the trial court has been abused”).

Garmon also argues that “the trial court should have granted a severance in order to achieve a fair determination of [Garmon’s] guilt or innocence.” “[T]he exercise of a trial court’s discretion in denying a motion to sever will not be disturbed on appeal unless the defendant clearly demonstrates that he suffered prejudice by one or more of the [three] factors amounting to a denial of due process.” (Citation omitted.) Harper v. State, 300 Ga. App. 757, 769 (12) (686 SE2d 375) (2009).

Garmon asserts that he suffered prejudice by the first factor — that “the number of defendants create [d] confusion as to the law and evidence applicable to each,” Butler, 290 Ga. at 413 (2) — because, he contends, the evidence against Dodd was stronger than that against him, suggesting that “a jury may have, simply upon finding [Dodd] guilty, also found . . . Garmon guilty.” But “it is not enough for the defendant to show that he would have a better chance of acquittal at a separate trial or that the evidence against a co-defendant is stronger.” (Citations and punctuation omitted.) Butler, 290 Ga. at 413 (2). See also Owen v. State, 266 Ga. 312, 314 (2) (467 SE2d 325) (1996). “[T]he fact that the evidence as to one of two co-defendants is stronger does not demand a finding that the denial of a severance motion is an abuse of discretion where, as here, there is evidence showing that the defendants acted in concert.” (Citation and punctuation omitted.) Smith v. State, 304 Ga. App. 155, 158 (4) (695 SE2d 679) (2010).

Decided September 18, 2012.

Sharese S. Ages, for appellant.

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

Garmon does not argue that he suffered prejudice by way of the other two factors pertinent to a motion to sever. He has not pointed to any evidence that he contends was not admissible against himself but was admissible against Dodd, and he has not claimed that his defense was antagonistic to that of Dodd. See White v. State, 308 Ga. App. 38, 42 (3) (706 SE2d 570) (2011).

Under these circumstances, we find that Garmon has not met his burden of showing clearly that the joint trial prejudiced his defense, resulting in a denial of due process. See Butler, 290 Ga. at 413-414 (2); Owen, 266 Ga. at 314 (2); White, 308 Ga. App. at 42 (3); Smith, 304 Ga. App. at 157-158 (4). Accordingly, we find that the trial court did not abuse its discretion in denying the motion to sever. See Butler, 290 Ga. at 414 (2). Compare Crawford v. State, 148 Ga. App. 523, 525-526 (251 SE2d 602) (1978) (finding trial court erred in denying motion to sever in child cruelty case where the evidence and law applicable to the defendant was significantly different than that applicable to his two co-defendants, in that there was no evidence that the defendant was ever a party or witness to the co-defendants’ abuse of the child victim and the state sought to convict the defendant on a different legal theory than the co-defendants).

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


author: Andrews, Judge.

text:
    A12A1627.
    SINGLETON v. THE STATE.
    (732 SE2d 312)
   Andrews, Judge.

On appeal from the trial court’s denial of his plea in bar, Steve Singleton argues that the court abused its discretion because the State took more than four years from his arrest to bring the case to a ruling on the plea. We vacate and remand for further proceedings because the trial court considered only 19 of the 55 months of delay between Singleton’s arrest and the denial of his plea, with the result that it could not properly exercise its discretion as to whether his constitutional right to a speedy trial was violated.

We examine Singleton’s claim under the four-part test established in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), “considering (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right, and (4) the prejudice to the defendant. See Brown v. State, 264 Ga. 803, 804 (2) (450 SE2d 821) (1994).” Johnson v. State, 268 Ga. 416, 417 (2) (490 SE2d 91) (1997). “[T]he factors should be considered together in a balancing test of the conduct of the prosecution and the defendant.” (Citations and punctuation omitted.) Nusser v. State, 275 Ga. App. 896, 897 (622 SE2d 105) (2005). “Absent an abuse of discretion, we must affirm the trial court’s balancing and weighing of the four Barker factors.” Id. However, when a trial court “ ‘has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished.’ ” State v. Porter, 288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011), quoting Williams v. State, 277 Ga. 598, 601 (592 SE2d 848) (2004).

The record shows that Singleton was arrested for the misdemeanor of simple battery on April 7,2007. On June 13,2007, the State Solicitor-General’s office asked that the case be handled by the DeKalb County District Attorney because the alleged facts “would appear to support felony charges of [aggravated [a]ssault and [s]odomy” rather than misdemeanor battery. On June 21, the district attorney began proceedings against Singleton under the felony charges.

More than two years later, on October 29, 2009, Singleton was indicted on two counts of aggravated assault, one count of false imprisonment, and one count of sexual battery concerning acts alleged to have taken place on April 4, 2007. Singleton was arrested for the second time on December 28 and arraigned and released under a consent order for bond two days later. On January 14, 2010, Singleton’s newly retained counsel filed a number of discovery requests and motions, including one for an extension of time to file additional motions. On March 8, the State responded and filed a notice of its intent to introduce evidence of prior convictions. In the meantime, on February 11, Singleton and the State agreed to a second consent order amending the conditions of Singleton’s bond so that he could travel from Georgia to Florida to attend a convention of car dealers.

On March 22, 2010, Singleton filed a plea in bar as to the sexual battery charge, arguing that it was barred by the applicable statute of limitation for misdemeanor offenses (OCGA § 17-3-1 (d)). In early 2011, Singleton’s case was called on January 18, February 22, April 6, and June 8. On the latter date, Singleton filed a plea in bar as to the three remaining charges. Singleton did not appear at the February 22 call because he was hospitalized, but he announced ready at the three other calls, as well as at a July 7 call concerning the plea in bar. After a hearing at which the State conceded Singleton’s plea as to the sexual battery charge, the trial court denied the plea as to the remaining charges on November 4, 2011.

1. “The right to a speedy trial attaches at the time of arrest or formal accusation or indictment, whichever occurs first, and we measure the delay from the time the right attaches.” Howard v. State, 307 Ga. App. 822, 824 (706 SE2d 163) (2011), citing Scandrett v. State, 279 Ga. 632, 633 (1) (a) (619 SE2d 603) (2005). “Most courts have said that a delay approaching one year is sufficient in most cases to warrant a more searching inquiry.” Id.

The Supreme Court of Georgia has repeatedly held that when it occurs first, the date of arrest is the proper point at which to commence the calculation. See Wilkie v. State, 290 Ga. 450, 451 (721 SE2d 830) (2012) (calculating length of delay from arrest to the denial of the motion for discharge and acquittal); Scandrett, 279 Ga. at 633 (1) (a) (speedy trial right attaches “ ‘at the time of arrest or when formal charges are brought, whichever is earlier’ ”); Williams, 277 Ga. at 599 (“The relevant time period in a speedy trial claim begins with the earlier of the date of indictment and the date of arrest”) (emphasis in original); Boseman v. State, 263 Ga. 730, 731 (1) (438 SE2d 626) (1994).

The delay in this case consists not of the 19 months from Singleton’s indictment in late October 2009 to his assertion of the right in early June 2011 considered by the trial court, but rather the 55 months from Singleton’s arrest in early April 2007 to the denial of his plea in early November 2011. As the State concedes, this 55-month delay was presumptively prejudicial to Singleton such that we consider the remaining Barker factors. See Williams v. State, 279 Ga. 106, 108 (1) (a) (610 SE2d 32) (2005) (delay of 62 months was “so extraordinarily long as to be considered presumptively prejudicial and to require the consideration of the remaining factors in the [Barker] balancing test” (punctuation omitted)); Carder v. State, 312 Ga. App. 61, 62 (1) (717 SE2d 661) (2011) (over five years from arrest to denial of plea was presumptively prejudicial).

2. Having established presumptive prejudice, we now turn to the four factors: “ ‘(i) whether delay before trial was uncommonly long, (ii) whether the government or the criminal defendant is more to blame for that delay, (iii) whether, in due course, the defendant asserted the right to a speedy trial, and (iv) whether he or she suffered prejudice as the delay’s result.’ ” (Punctuation omitted.) Ruffin v. State, 284 Ga. 52, 56 (2) (b) (663 SE2d 189) (2008), quoting Doggett v. United States, 505 U. S. 647, 651 (112 SC 2686, 120 LE2d 520) (1992).

(a) Whether the Delay was Uncommonly Long.

The length of the pretrial delay in absolute terms plays a role in the threshold determination of presumptive prejudice. However, it also wears another hat as one of the four interrelated criteria that must be weighed in the balance at the second stage of the Barker-Doggett analysis.

Ruffin, 284 Ga. at 56 (2) (b) (i). Pretrial delay forms a part of the actual prejudice prong of the Barker analysis, “ ‘with the presumption that pretrial delay has prejudiced the accused intensifying over time.’ ” (Citations and punctuation omitted.) Fallen v. State, 289 Ga. 247, 248 (710 SE2d 559) (2011), quoting Boseman v. State, 263 Ga. 730, 732 (1) (a) (438 SE2d 626) (1994). “However, the presumptive prejudice arising from delay cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria. Instead, it is part of the mix of relevant facts, and its importance increases with the length of delay.” (Punctuation omitted.) Id.

As we have held above, the trial court clearly erred when it took the dates of Singleton’s felony indictment rather than his arrest and the assertion of his right rather than the denial of the plea as the basis of its deliberations, with the result that it used a substantially shorter period of delay than the law requires in its balancing of Barker factors. See Porter, 288 Ga. at 526 (2) (a) (when a trial court has “clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed [its] ultimate ruling is diminished”). It is true that despite this error, the trial court concluded its analysis by noting that Singleton’s crimes were not factually complex and that the factor of delay should weigh against the State. Nonetheless, the trial court could well have weighed this factor substantially more heavily against the State if it had proceeded under the correct facts. We must therefore vacate the trial court’s order and remand the case for reconsideration of “the length of delay as a separate factor” and whether the 55-month delay here was “uncommonly long” for charges of aggravated assault and/or sodomy. Goddard v. State, 315 Ga. App. 868, 871 (2) (a) (729 SE2d 397) (2012) (remanding for reconsideration of proper 19-year period of delay concerning robbery charges).

(b) Blame for the Delay. Our Supreme Court has also held that where, as here, there is no allegation of engineered delay by either the State or the defendant, factors to be considered in assessing blame for delay may include

overcrowded dockets, the government’s failure to provide for sufficient numbers of judges, prosecutors, or indigent defense counsel, neglect by the prosecution or other government agents, mere convenience of the prosecution, or the desire to avoid the expense of separate trials for two defendants involved in the same crime.

Ruffin, 284 Ga. at 60 (2) (b) (ii). “Each of these reasons must be counted against the government in the Barker-Doggett analysis, though less heavily than delay designed to sabotage the accused’s case.” Id.

Here, Singleton has conceded that the State has not deliberately delayed his prosecution for the purpose of hampering his defense. The record shows that Singleton’s motion for extension asked for two weeks to file additional motions. Even accounting this single and brief delay against Singleton, as the trial court did, we think that the trial court did not abuse its discretion when it reached the conclusion that “the reason for the delay is largely due to an overcrowded docket.” As in Division 2 (a), however, we cannot necessarily say the same of the trial court’s decision to weigh this factor only “benignly” against the State. The weight assigned to governmental negligence under the second Barker factor “ ‘compounds over time ... such that [a court’s] toleration of such negligence varies inversely with its protractedness.’ ” State v. Brown, 315 Ga. App. 544, 549 (2) (b) (726 SE2d 500) (2012), quoting Doggett, 505 U. S. at 657 (III) (B). “Even benign negligence will begin to weigh more heavily against the State, the longer the delay caused by the same.” Hayes v. State, 298 Ga. App. 338, 345 (2) (b) (680 SE2d 182) (2009).

It is true that the record in Hayes supported a finding that the State made a “deliberate and strategic” decision to dead-docket the defendant’s case, with the result that the second Barker factor was weighed “substantially against the State.” 298 Ga. App. at 345 (2) (b). Nonetheless, and even noting the absence of deliberate delay in the record before us, we cannot say that adding an additional three years to Singleton’s case’s delay, for a new total of 55 months, or more than four-and-a-half years from arrest to plea denial, would not affect the trial court’s analysis concerning the second Barker factor. In light of the trial court’s failure to consider more than half the relevant period of pretrial delay for purposes of both the first and the second factors, we must remand the case “so that the court can reconsider the circumstances giving rise to the delay and reassess the causes for the delay with regard to the principles outlined [above] before reweighing this factor.” (Citation and punctuation omitted.) Goddard, 315 Ga. App. at 875 (2) (b) (because trial court erred in holding that 16-year delay caused “at least in part” by the State’s negligence was “relatively benign,” case must be vacated and remanded); see also Jackson v. State, 272 Ga. 782, 784 (534 SE2d 796) (2000) (rejecting the State’s argument that pretrial delay resulting from its desire to try all co-defendants together was “benign,” and therefore entitled to little weight, simply because it was not designed to prejudice the defense); Johnson v. State, 313 Ga. App. 895, 902 (2) (b) (723 SE2d 100) (2012) (remanding to trial court where record was “incomplete” and findings of fact were “scant” on the reasons and responsibility for a delay).

(c) Assertion of the Right to a Speedy Trial. The issue as to the third Barker factor is “whether the accused has asserted the right to a speedy trial ‘in due course.’ ” Phan v. State, 290 Ga. 588, 595 (1) (c) (723 SE2d 876) (2012), quoting Ruffin, 284 Ga. at 63 (2) (b) (iii).

This factor requires a close examination of the procedural history of the case with particular attention to the timing, form, and vigor of the accused’s demands to be tried immediately. Because delay often works to the defendant’s advantage, [moreover,] this factor is afforded strong evidentiary weight.

(Citations and punctuation omitted.) Phan, 290 Ga. at 595 (1) (c).

Although the right to a speedy trial accrues from the time of arrest, Singleton waited more than four years from that time to assert his right, and he has never given a reasonable explanation for the delay. As we recently repeated in a case in which four years passed between a defendant’s arrest and indictment for child molestation, “the accused need not await indictment and instead can begin demanding that the right to a speedy trial be honored as soon as he or she is arrested.” (Citation and punctuation omitted.) Brown, 315 Ga. App. at 551 (2) (c). Thus when a defendant “waits until years after his arrest to assert his right to a speedy trial, the failure of the accused to assert his right sooner ordinarily will weigh against him heavily. Pickett, 288 Ga. at 677 (2) (c) (3).” Id.

As to this factor, the trial court found that Singleton had never given any reason for this delay in asserting his right, that he had never asserted the right before June 2011, and that the factor weighed against him as a result. Even though the trial court erred when it used a 19- rather than 55-month period of delay, such an error could not have changed its evaluation of this factor in Singleton’s favor because a period of three years or more would likely result in the factor being weighed heavily against him. See Fallen, 289 Ga. at 249 (3) (three-year delay in asserting right weighs heavily against defendant); Layman v. State, 284 Ga. 83, 86 (663 SE2d 169) (2008) (four-year delay weighs heavily against defendant).

(d) Prejudice Resulting from the Delay. Among the kinds of prejudice a defendant may suffer from unreasonable delay are “[i] oppressive pretrial incarceration, [ii] anxiety and concern of the accused, and [iii] the possibility that the accused’s defense will be impaired by dimming memories and loss of exculpatory evidence.” (Citations and punctuation omitted.) Pickett, 288 Ga. at 677 (2) (c) (4). “Of these forms of prejudice, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id. Because of the difficulty of proving specific prejudice due to the passage of time alone,

excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance increases with the length of delay.

(Citations omitted.) Id.

(i) Of the more than four years between his April 2007 arrest and the November 2011 denial of his plea, Singleton has spent only three days in jail. Thus he has made no showing of oppressive pretrial incarceration. See Fallen, 289 Ga. at 249 (4).

(ii) Singleton requested and obtained the December 2009 consent bond restricting travel beyond the Atlanta metropolitan area; he himself attributed much of his physical distress during the period at issue to his cancer diagnosis and treatment. Thus the trial court had evidence to support its rejection of Singleton’s claim that he suffered unusual anxiety or concern as a result of the charges pending against him. Carder, 312 Ga. App. at 66 (defendant’s depression and anxiety were not necessarily caused by the delay in prosecution); Weems v. State, 310 Ga. App. 590, 595 (714 SE2d 119) (2011) (travel restrictions due to a bond condition could not cause “the level of anxiety and concern necessary to constitute a violation of a defendant’s speedy trial rights”).

(iii) Finally, Singleton does not argue on appeal that the delay in prosecuting the case against him has resulted in any specific impairment to his ability to defend himself.

We are mindful that

[although the passage of time is not alone sufficient to sustain a speedy trial claim, greater pretrial delays simultaneously increase the degree of prejudice presumed and decrease the expectation that the defendant can demonstrate tangible prejudice to his or her ability to present a defense.

Williams, 277 Ga. at 601 (1) (d). Had the trial court not erred in the period of delay at issue, we could conclude that in the absence of any concrete evidence of harm under any of the three subfactors of the fourth Barker factor, the trial court did not err when it weighed this factor against Singleton. See Ruffin, 284 Ga. at 65 (2) (b) (iv) (trial court properly weighed fourth Barker factor against defendant when he “failed to present any specific evidence that his ability to defend himself had been impaired”); Carder, 312 Ga. App. at 66 (trial court did not abuse its discretion when it found that defendant had failed to show any actual prejudice). However, without the trial court’s own evaluation of the fourth factor using the 55- instead of 19-month period of delay, and given settled law the presumption of prejudice “increases with the length of delay,” we cannot be certain as a matter of law what the outcome of its discretionary determination as to that factor would have been. See Goddard, 315 Ga. App. at 876 (2) (d) (remanding for reconsideration of prejudice factor when trial court failed to consider nearly 19-year delay before denial of plea); Brown, 315 Ga. App. at 553 (2) (d) (given that prejudice could be presumed after nearly nine years of delay, and that “the State offered no evidence to rebut the presumption,” the trial court “properly considered presumptive prejudice” in its weighing process).

3. Balancing the Four Barker Factors. As we have noted above, the trial court should have taken the delay of 55 months from arrest to denial of Singleton’s plea, rather than the 19 months from indictment to filing of that plea, as the starting point for its deliberations. Given this clear error, “the deference owed the trial court’s ultimate ruling is diminished.” Williams, 277 Ga. at 601 (1) (e). Specifically, a trial court considering this near tripling of the relevant length of time might very well conclude that the first Barker factor should weigh substantially more heavily against the State. It is true that this same error also resulted in the trial court’s weighing of the third Barker factor concerning Singleton’s dilatory assertion of his right less heavily against Singleton than the law would have required, which of course militates in favor of the State. But the error also infected the trial court’s decision as to the second and fourth factors in that it might well have laid the blame for a 55-month delay more heavily against the State and found it substantially easier to presume prejudice in favor of Singleton.

Decided September 19, 2012.

Colette R. Steel, Brian Steel, for appellant.

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

Given the magnitude of the trial court’s error, then, and knowing that we cannot substitute our judgment for its own on the matter, we must conclude not only that it failed to exercise its discretion over the relevant facts, but also that “had [it] used the correct facts and legal analysis,” it could have had the “discretion to reach a different judgment.” See Pickett, 288 Ga. at 679 (2) (d). We therefore vacate and remand the case “for the court to exercise its discretion again using properly-supported factual findings and the correct legal analysis,” including “findings of fact and conclusions of law consistent with Barker.” Id. at 680 (2) (d) (where the Supreme Court of Georgia was unable to conclude that the trial court “necessarily would have ruled that [a defendant’s] constitutional right to a speedy trial was violated,” the Court of Appeals erred in affirming the trial court’s judgment rather than remanding the case to the trial court); Goddard, 315 Ga. App. at 876-877 (2) (e) (vacating and remanding with direction in light of trial court’s unsupported factual findings and misapplication of Barker factors); Johnson, 313 Ga. App. at 906 (2) (e) (remanding for further proceedings where trial court’s errors, including its failure to consider whether a delay was uncommonly long, meant that it “could not properly balance the Barker factors”).

Judgment vacated and case remanded with direction.

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


text:
    A12A0962.
    GASTON v. THE STATE.
    (731 SE2d 79)
   McFadden, Judge.

After a jury trial, Melvin Gaston was convicted of child molestation, aggravated child molestation, and aggravated sexual battery against R. C., who was his girlfriend’s minor daughter. The trial court allowed R. C.’s father to give testimony that improperly bolstered her credibility, over the defense’s objection and without a curative instruction or other corrective action. This was reversible error. There is no merit, however, in Gaston’s arguments that the evidence was insufficient to support his convictions or that certain of his convictions must be merged for sentencing purposes. Finally, in light of our reversal of the convictions in this case, we do not address Gaston’s argument that he received ineffective assistance of trial counsel.

Viewed in the light most favorable to the verdict, see Al-Amin v. State, 278 Ga. 74 (1) (597 SE2d 332) (2004), the evidence showed that R. C. lived with her father in Texas and visited her mother in Georgia several times a year. R. C. visited her mother during the summer of 2006, when she was seven years old. One evening during that visit, Gaston, who was babysitting R. C., followed the girl into the bedroom of her mother’s apartment, pushed her onto the bed, pulled down her pajama pants, and licked her genitals. R. C. told her mother what had happened as soon as the mother returned to the apartment, but the mother did nothing other than to talk to Gaston.

Upon returning to Texas at the end of the summer, R. C. told first her childcare provider and then her father what had happened. She also wrote and illustrated a story at school related to the incident. R. C. attended therapy sessions with a counselor, to whom she described the incident. She began biting her nails and having nightmares, and her grades at school fell. Although R. C.’s father contacted the police and an investigation was begun in Georgia, the investigation later was suspended with no action taken against Gaston.

While visiting her mother during the summer of2008, R. C., then nine years old, began sleeping in her mother’s bedroom because she was afraid of some spiders she had seen in her own bedroom. Gaston was staying at the mother’s apartment as well, and R. C. would sleep in the bed with her mother and Gaston. One night she awoke to feel Gaston’s hand between her legs, touching her beneath her pajamas and underwear. She spoke to Gaston, and he removed his hand. The next morning she told her mother what had happened, but her mother did nothing other than to say “okay.” A few nights later, R. C. again awoke to feel Gaston’s hand under her pajamas and underwear and his finger on and inside her vagina. She spoke to him, and he stopped. Again, R. C. told her mother the following morning, and again her mother did nothing other than to say “okay.”

Sometime during the fall of 2008, after R. C. returned to Texas, she revealed to relatives that Gaston had touched her inappropriately during her summer visit to Georgia. At the relatives’ urging, R. C. then told her father what had occurred. R. C. did not return to Georgia to visit her mother after the summer of 2008.

After learning of the 2008 incidents, R. C.’s father contacted the police, and an investigation was begun. As a part of the investigation, R. C. was interviewed by a child forensic interviewer in January 2009. In that interview, R. C. described what had occurred in 2006 and 2008. Two years later, R. C. gave another interview to the child forensic interviewer, focusing on the specific time frame during which the incidents occurred.

R. C. continued to see her therapist after the summer of 2008, and she told her therapist about the sexual abuse. During therapy, she drew pictures and created artwork related to the incident. The therapist testified that R. C. manifested symptoms of sexual abuse such as having nightmares and flashbacks, exhibiting hypersensitivity, and expressing the need to keep all of the doors in the house closed.

1. Gaston argues that the court improperly allowed testimony that invaded the jury’s province as the arbiter of witness credibility and amounted to improper bolstering of R. C. We agree.

During the state’s direct examination of R. C.’s father, the following exchange occurred over the objections of Gaston’s counsel:

Q. . . . [Wjhen [R. C.] told you that she had been sexually molested by Melvin Gaston in 2006, did you believe her?
A. Yes.
Q. What was the answer [?]
A. Yes.
Q. You believed her, but then you sent her back in 2007 and 2008?
A. Yes.
Q. And why did you do that?
A. I was told to.
Q. Do you regret that decision?
A. I regret it.
Q. When [R. C.] told you that she had been molested by Melvin Gaston twice in 2008, did you believe her?
A. Yes.

The court overruled Gaston’s contemporaneous objections to this testimony. It also denied Gaston’s later motion for mistrial based on this testimony and declined to give a curative jury instruction.

The credibility of a witness, including a victim witness, is a matter for the jury’s determination under proper instruction from the court. It is well established that in no circumstance may a witnesses] credibility be bolstered by the opinion of another... as to whether the witness is telling the truth.

(Citations and punctuation omitted.) Lagana v. State, 219 Ga. App. 220, 221 (1) (464 SE2d 625) (1995); see OCGA § 24-9-80. The state argues that the father’s testimony that he believed R. C.’s 2006 and 2008 outcries did not bolster her credibility because the testimony concerned his state of mind rather than the girl’s truthfulness. This is not a meaningful distinction. See Bly v. State, 283 Ga. 453, 459 (3) (660 SE2d 713) (2008) (witness’s testimony was improper bolstering where it “was necessarily predicated upon [his] belief in the veracity of [victim’s] statements to him as repeated by [victim] at trial”); Gooden v. State, 316 Ga. App. 12, 14 (1) (728 SE2d 693) (2012) (pediatrician’s testimony that he believed victim had told him the truth about being sexually assaulted by her father was improper bolstering). “Testimony that another witness believes the victim impermissibly bolsters the credibility of the victim.” (Citation omitted.) Buice v. State, 239 Ga. App. 52, 55 (2) (520 SE2d 258) (1999).

The state argues that Gaston should be precluded from objecting to the impermissible bolstering because, during opening statements, his counsel raised the issue of whether the father believed R. C. by questioning the father’s decision to send the girl back to Georgia after her 2006 outcry. Specifically, the state points to the following assertion by Gaston’s counsel: <cYou’re going to hear from . . . the child’s father. And [the prosecutor] is saying that [the father] felt he had to send the child back. Well, ask yourself this question: Who in their right mind is going to send...” (At that point the state objected to the opening statement as argumentative, and Gaston’s counsel did not revisit the topic.) Assuming without deciding that this single statement by defense counsel was enough to preclude Gaston from objecting to testimony on the issue of whether the father believed R. C.’s 2006 outcry, but see Griffin v. State, 267 Ga. 586, 587 (2) (481 SE2d 223) (1997) (state’s repeated questions of its witness on redirect examination, which specifically pertained to witness’s beliefs about defendant’s credibility, were improper, even though state asked them in attempt to rehabilitate its witness in response to defense’s cross-examination questions), defense counsel’s statement had no bearing at all upon whether the father believed R. C.’s 2008 outcry. The father did not “send the child back” to Georgia after the 2008 outcry, and his bolstering of R. C.’s testimony regarding the 2008 incidents was impermissible.

The improper bolstering testimony requires reversal. “In cases where we have affirmed convictions despite this type of improper testimony, there has been other evidence of guilt or other testimony which minimized the effect of the improper testimony.” (Citations omitted.) Walker v. State, 296 Ga. App. 531, 535 (1) (b) (675 SE2d 270) (2009). Here, however, R. C.’s credibility was central to the case against Gaston, in that the primary evidence that the crimes occurred was the testimony of R. C. and of the people to whom she had described the incidents. See Lagana, 219 Ga. App. at 221-222 (1) (error in admitting testimony bolstering victim’s credibility was not harmless where the evidence against the defendant depended heavily upon the victim’s credibility and was not overwhelming). There was no physical evidence corroborating R. C.’s various accounts. See Orr v. State, 262 Ga. App. 125, 129 (2) (584 SE2d 720) (2003) (where no physical evidence of rape was presented and only evidence against defendant was victim’s testimony, any bolstering of that testimony was “extremely harmful” to defendant). R. C.’s various accounts contained inconsistencies. Compare Williams v. State, 266 Ga. App. 578, 582 (2) (597 SE2d 621) (2004) (improper bolstering of victim’s credibility did not require reversal where, among other things, victim’s account remained consistent when repeated to several interviewers and also was consistent with her trial testimony). Gaston denied touching R. C. Compare Cline v. State, 224 Ga. App. 235, 237 (2) (480 SE2d 269) (1997) (improper bolstering testimony did not require reversal where defendant admitted to touching child victim’s vaginal area on several occasions). Moreover, the court did not issue a curative instruction or take other corrective action to mitigate the impact of the bolstering testimony. Compare Gooden, 316 Ga. App. at 15 (1) (reversal not required where court took immediate curative action after witness gave improper testimony that he believed victim’s account of sexual abuse).

Under these circumstances, we cannot conclude that the error in allowing the testimony improperly bolstering R. C.’s credibility was harmless. For this reason, we must reverse Gaston’s convictions. See Lagana, 219 Ga. App. at 221-222 (1).

2. Gaston argues that the evidence was insufficient to support his convictions because the state failed to demonstrate venue in Gwinnett County, where the case was tried. We disagree and instead find that the evidence was sufficient and that he may be retried. See Lively v. State, 262 Ga. 510, 512 (3) (421 SE2d 528) (1992).

R. C. testified that the incidents in 2006 and 2008 occurred in her mother’s apartment. Her mother testified that the apartment was on Annistown Road in Snellville, Georgia. Her father testified that, to his knowledge, the mother’s apartment was in Gwinnett County. And the investigating detective, a member of the Gwinnett County Police Department Special Victims Unit, testified that he determined that the mother’s Annistown Road address was located in “Snellville, Georgia, and that is in Gwinnett County, Georgia.” Gaston argues that other testimony from the detective regarding the mother’s specific street address on Annistown Road was hearsay. But even without evidence of the specific street address, the jury could reasonably infer from the evidence viewed as a whole that the mother’s apartment was located in Gwinnett County and, accordingly, the state proved venue in Gwinnett County beyond a reasonable doubt. See State v. Prescott, 290 Ga. 528, 529-530 (722 SE2d 738) (2012); Chapman v. State, 275 Ga. 314, 317-318 (4) (565 SE2d 442) (2002); West v. State, 296 Ga. App. 58, 59-60 (1) (673 SE2d 558) (2009).

3. Gaston argues that his conviction for child molestation should have merged into his conviction for aggravated sexual battery. Because this issue is likely to recur if Gaston is found guilty of the charged offenses on retrial, we address it here.

Under OCGA § 16-1-7 (a),

[wjhen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other; or (2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.

“Under OCGA § 16-1-6 (1), a crime is ‘included in’ the other where it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the other crime.” (Punctuation omitted.) Drinkard v. Walker, 281 Ga. 211, 213 (636 SE2d 530) (2006). Georgia has adopted the “required evidence” test to make this determination. Id. at 217. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the required evidence test considers “whether each provision requires proof of a fact which the other does not.” (Citation and punctuation omitted.) Id. at 215. If so, then there are two offenses, and neither is “included in” the other. Id.

The indictment charged Gaston with child molestation in violation of OCGA § 16-6-4 (a) by, “between the 1st day of July, 2008, and the 15th day of August, 2008,... unlawfully performing] an immoral and indecent act upon the person of [R. C.], a child under the age of sixteen (16) years, by touching her vagina, with his hand, with intent to arouse and satisfy the sexual desires of said accused. . . .” The indictment charged him with aggravated sexual battery in violation of OCGA § 16-6-22.2 by, “between the 1st day of July, 2008[,] and the 15th day of August, 2008,. .. unlawfully intentionally penetrating] with a foreign object, to wit: his finger, the sexual organ of [R. C.] without the consent of [R. C.]. . . .”

Decided August 7, 2012

Reconsideration denied September 21, 2012

Richard T. Ryczek, for appellant.

Daniel J. Porter, District Attorney, Franklin P. Clark, Assistant District Attorney, for appellee.

Gaston argues that the wording of his indictment could allow a jury to find that these crimes occurred on the same date as part of the same conduct. Even so, this does not require a finding that the crime of child molestation was included in the crime of aggravated sexual battery, as Gaston contends. The charged offense of child molestation required proof that Gaston committed an immoral and indecent act with the intent to arouse and satisfy his sexual desires, whereas the charged offense of aggravated sexual battery did not. And the charged offense of aggravated sexual battery required proof of penetration, whereas the charged offense of child molestation did not. Accordingly, the trial court was not required to merge these convictions for sentencing. See Daniel v. State, 292 Ga. App. 560, 565-566 (5) (665 SE2d 696) (2008).

4. We need not address Gaston’s remaining claim of ineffective assistance of counsel, which is not likely to recur on retrial.

Judgment reversed.

Barnes, P. J., and Adams, J., concur.


text:
    A12A0899.
    MOORE v. CAMARA et al.
    (732 SE2d 319)
   McFadden, Judge.

Justin Keith Moore appeals the summary judgment granted to his uninsured motorist carrier and Sekou Camara in this personal injury action. Because Moore has pointed to no specific evidence that Camara was negligent, we affirm.

Summary judgment is due to be granted when the moving party has

demonstrated] that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law. A defendant may do this by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims. Thus, the rule with regard to summary-judgment is that a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010). See also OCGA § 9-11-56 (c).

“A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (Citation omitted.) Hunsucker v. Belford, 304 Ga. App. 200 (695 SE2d 405) (2010). Viewed in a light most favorable to Moore as the nonmovant, the record shows that at about 10:00 p.m. on September 23, 2008, Moore was walking along the right shoulder of Interstate 16. Camara was driving on Interstate 16 when he struck Moore. Moore broke his hand, his elbow, his ankle, his collarbone and his ribs in the accident. He also suffered a laceration on his head.

Moore does not remember how the accident happened; he remembers walking along the right shoulder of Interstate 16 and then waking up in an ambulance. He never saw Camara’s car.

Camara heard something hit his driver’s side window, but he did not know what, and he exited the highway at the next exit. He returned to the scene and called 911. He never saw Moore. Camara was driving within the speed limit with his headlights on, and there was no traffic.

The officer who responded to the accident testified that Moore told him he was attempting to cross the highway when Camara struck him. The officer found Moore’s shoe in the middle of the road. Camara’s driver’s side mirror and driver’s side window were damaged by the impact. The officer concluded that Moore misjudged the ¡ clearance and was distracted as he was crossing the highway, thus causing the accident. The officer cited neither Moore nor Camara.

The elements of a cause of action for negligence in Georgia are:

(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiffs legally protected interest as a result of the alleged breach of the legal duty. The mere fact that an accident happened and a plaintiff was injured affords no basis for recovery unless the plaintiff carries [his] burden of proof and shows that the accident was caused by specific acts of negligence of the defendant.

Decided September 21, 2012.

Walker, Hulbert, Gray & Moore, John G. Walker, for appellant.

Harper, Waldon & Craig, Trevor G. Hiestand, Jones, Cork & Miller, Rufus D. Sams III, Renee S. Rainey, for appellee.

(Citations omitted.) Berry v. Hamilton, 246 Ga. App. 608, 608-609 (541 SE2d 428) (2000).

Moore has presented no evidence of specific acts of negligence of Camara. He argues that because the weather was clear, traffic was light and Camara had his headlights on, whether Camara was negligent is a jury question. But a jury would not be authorized to infer negligence because

[a]n inference cannot be based on evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. A finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. (Citations and punctuation omitted.) Butler v. Huckabee, 209 Ga. App. 761, 762 (2) (434 SE2d 576) (1993) (suggestion by plaintiff who had no memory of impact that defendant must have been speeding was not supported by evidence).

Werner Enterprises v. Lambdin, 307 Ga. App. 813, 815 (706 SE2d 185) (2011). Moore’s suggestion that Camara must have failed to exercise due diligence to avoid striking him is not supported by evidence. Because Moore points to no specific evidence in the record giving rise to a triable issue, we affirm. See Cowart, 287 Ga. at 623 (1) (a).

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.