author: Barnes, Presiding Judge.

text:
    A11A0315.
    MORRIS v. THE STATE.
    (712 SE2d 130)
   Barnes, Presiding Judge.

Isaac Morris got out of his vehicle and punched a pedestrian, who fell backward onto the pavement and later died from the resulting skull fracture. Morris was indicted on the charge of voluntary manslaughter, but was convicted of involuntary manslaughter. On appeal from the denial of his motion for a new trial, Morris contends that the trial court erred by allowing the State to amend the indictment to charge the crime of involuntary manslaughter. He further contends that his conviction is void because it rests upon an indictment that did not allege the critical element of intent. For the reasons discussed below, we affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. Gordon v. State, 294 Ga. App. 908 (1) (670 SE2d 533) (2008). So viewed, the evidence showed that on July 10, 2007, Morris was driving his truck during evening rush hour. As he turned left onto a side street to avoid the heavy traffic, Morris almost struck a pedestrian walking across the intersection. After the near collision, Morris stopped his truck in the middle of the street, got out, exchanged words with the pedestrian, and struck the pedestrian in the face once with his fist. The pedestrian fell backward and hit his head on the street. As the pedestrian lay in the street unconscious and bleeding from the head, Morris dragged him to the curb. Morris called 911 but drove off before an ambulance or the police arrived. The pedestrian was rushed by ambulance to the hospital but later died from the head injury he sustained from the fall.

Several eyewitnesses called 911, and one of them provided the license plate number of the truck that drove away from the scene. Based upon this information, a detective learned that Morris was the owner of the truck and obtained a photograph of him. The detective then compiled a photographic lineup and showed it to a witness, who identified Morris as the person who had struck the pedestrian.

Morris was arrested and indicted on the charge of voluntary manslaughter. The indictment averred that Morris

did cause the death of another human being, to wit: [the victim], by striking [the victim] with his fist, while acting as a result of a sudden, violent and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person contrary to the laws of said State, the good order, peace and dignity thereof.

On the first day of trial, after the jury was selected, the prosecutor noted to the trial court that the single count of the indictment was captioned “voluntary manslaughter” but that the language of the count omitted any allegation that Morris acted with the intent to kill. The prosecutor further stated that the State did not believe that Morris had acted with the intent to kill. Consequently, the prosecutor requested that the case proceed only on the lesser included charge of involuntary manslaughter and contended that Morris had notice of such a charge based upon the factual allegations in the indictment.

Over objection from Morris, the trial court ruled that the case would proceed on the lesser included charge of involuntary manslaughter by the commission of the unlawful act of simple battery. See OCGA §§ 16-5-3 (a); 16-5-23 (a). The court then instructed the jury prior to opening statements that the charge in the indictment had been “changed” from voluntary manslaughter to involuntary manslaughter.

In the ensuing trial, several eyewitnesses and the detective assigned to the case testified to the events as set out above. The deputy chief medical examiner testified that the cause of the pedestrian’s death was blunt force trauma to the head caused by impact with a flat surface, and that the “enormous skull fractures” would not have occurred if the pedestrian had fallen to the ground “on his own” rather than from a blow. Furthermore, Morris took the stand and admitted that he got out of his truck and intentionally struck the pedestrian once with his fist, causing the pedestrian to fall backward onto the street. He denied that he intended to kill or harm the pedestrian.

Following the close of evidence, the trial court in its charge to the jury reiterated that involuntary manslaughter was the “only charge” and instructed them solely on the lesser included offense of involuntary manslaughter by the commission of the unlawful act of simple battery. The jury subsequently convicted Morris of involuntary manslaughter. Morris moved for a new trial, and the trial court denied the motion, leading to this appeal.

1. The evidence was sufficient to authorize a rational jury to find Morris guilty beyond a reasonable doubt of involuntary manslaughter by the commission of the unlawful act of simple battery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). “Questions concerning the weight of the evidence and credibility of the witnesses were for the jury to decide.” Johnson v. State, 289 Ga. App. 206, 208 (656 SE2d 861) (2008).

2. Morris contends that the trial court erred by allowing the State to amend the indictment, over his objection, from voluntary manslaughter to involuntary manslaughter by the commission of the unlawful act of simple battery. He maintains that the indictment did not allege the facts necessary to establish that offense. Therefore, Morris asserts that his due process rights were violated because he was never put on notice that he could be convicted of involuntary manslaughter.

“An indictment cannot be materially amended after the grand jury has returned the indictment into court; any subsequent amendment by the trial court or prosecution that materially affects the indictment is void and cannot serve as the basis for a conviction.” Driggers v. State, 295 Ga. App. 711, 717-718 (4) (b) (673 SE2d 95) (2009). See Ingram v. State, 211 Ga. App. 252, 253 (1) (438 SE2d 708) (1993); Gentry v. State, 63 Ga. App. 275, 276 (11 SE2d 39) (1940). An amendment to the indictment can be actual or constructive; “[a] constructive amendment occurs when the essential elements of the offense contained in the indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment” as a result of erroneous jury instructions or a prosecutor’s statements to the jury. (Citations and punctuation omitted.) United States v. Castro, 89 F3d 1443, 1452-1453 (III) (11th Cir. 1996). See Salahuddin v. State, 241 Ga. App. 168, 170 (2) (525 SE2d 422) (1999) (physical precedent only), abrogated on other grounds by Simpson v. State, 277 Ga. 356, 358 (2) (589 SE2d 90) (2003).

Significantly, however, an indictment embraces all lesser included offenses of the charged offense. Spence v. State, 7 Ga. App. 825, 827 (68 SE 443) (1910). See OCGA § 16-1-6 (“An accused may be convicted of a crime included in a crime charged in the indictment or accusation.”). An indictment places an accused on notice that he can be convicted of the crimes expressly charged as well as lesser crimes that are included in the charged offenses as a matter of law or fact. Millender v. State, 286 Ga. App. 331, 333 (2) (648 SE2d 777) (2007). Indeed, if an offense is a lesser included offense as a matter of law or fact, an accused can be convicted of that offense even if the trial court directs a verdict on the offense expressly charged in the indictment. See Clarke v. State, 239 Ga. 42, 44 (4) (235 SE2d 524) (1977); Williams v. State, 196 Ga. App. 154, 155-156 (1) (395 SE2d 399) (1990).

The lesser offense of involuntary manslaughter in the commission of an unlawful act can be included as a matter of fact in the greater offense of voluntary manslaughter. See, e.g., Mitchell v. State, 277 Ga. App. 65, 67, n. 2 (625 SE2d 487) (2005). A lesser offense may be included as a matter of fact in a greater offense charged in the indictment, if the indictment alleges the facts necessary to establish the essential elements of the lesser offense, and if the evidence presented at trial is sufficient to establish that offense. Youmans v. State, 270 Ga. App. 832, 835 (2) (608 SE2d 300) (2004). See Little v. State, 278 Ga. 425, 428 (4) (603 SE2d 252) (2004); Loren v. State, 268 Ga. 792, 796 (3) (493 SE2d 175) (1997); Heggs v. State, 246 Ga. App. 354, 355-356 (1) (540 SE2d 643) (2000). Here, the evidence at trial was sufficient to establish the lesser offense of involuntary manslaughter in the commission of the unlawful act of simple battery, as discussed in Division 1. Thus, the sole issue is whether the indictment in this case alleged the facts necessary to establish the essential elements of that lesser offense.

Where the crime at issue is involuntary manslaughter in the commission of an unlawful act, proof of the underlying unlawful act (here, simple battery) is an essential element of the crime. See Williams v. State, 96 Ga. App. 833 (1) (a) (101 SE2d 747) (1958). One manner in which a person can commit simple battery is by “[intentionally caus[ing] physical harm to another.” OCGA § 16-5-23 (a) (2).

Morris maintains that simple battery under OCGA § 16-5-23 (a) (2) requires proof that the defendant acted with the specific intent to cause physical harm to another, and he argues that the indictment in this case could not be construed as encompassing that form of simple battery because it did not expressly allege any intent component at all. He further contends that because the jury returned a general verdict, it may have convicted him of involuntary manslaughter predicated upon simple battery under OCGA § 16-5-23 (a) (2), and thus he may have been convicted of a crime not embraced by the indictment and of which he did not have sufficient notice prior to trial.

We are unpersuaded. “[T]he failure to allege intent is not fatal where the . . . indictment employs language that necessarily raises an inference that the requisite criminal intent existed.” State v. Harris, 292 Ga. App. 211, 212 (663 SE2d 830) (2008). See, e.g., Harris v. State, 258 Ga. App. 669, 670-672 (1) (574 SE2d 871) (2002) (omission of the word “knowingly” from drug trafficking charge did not void the indictment); Hammock v. State, 201 Ga. App. 614, 615-616 (1) (b) (411 SE2d 743) (1991) (failure to expressly allege criminal intent of child molestation did not void count where intent could be inferred “[f|rom the indictment as a whole”); Frost v. State, 200 Ga. App. 267, 267-269 (2) (407 SE2d 765) (1991) (use of the word “unlawfully” instead of “knowingly” in arson charge did not render the indictment void). And we have held that an allegation in an indictment “that the offensive use of fists . . . resulted in bodily injury” is sufficient to allege the essential elements of simple battery. See Buchanan v. State, 173 Ga. App. 554, 555 (4) (327 SE2d 535) (1985). Cf. Beals v. State, 288 Ga. App. 815, 816 (1) (655 SE2d 687) (2007) (indictment was not defective for failure to expressly allege specific intent to commit a theft in armed robbery count because intent was “necessarily inferred from the allegation of the use of an offensive weapon to accomplish the taking”).

In the present case, the indictment alleged that Morris “cause[d] the death of [the victim] ... by striking [the victim] with his fist. . . contrary to the laws of said State, the good order, peace and dignity thereof.” We have no trouble concluding that this language alleged “an offensive use of the fists [that] resulted in bodily injury,” Buchanan, 173 Ga. App. at 554 (4), and thus sufficiently alleged all of the essential elements of simple battery. Accordingly, the lesser offense of involuntary manslaughter in the commission of the unlawful act of simple battery was included as a matter of fact in the charged greater offense of voluntary manslaughter. It follows that the trial court committed no error in allowing the State to amend the indictment to charge involuntary manslaughter rather than voluntary manslaughter.

Decided June 17, 2011.

Gerard B. Kleinrock, for appellant.

R. Javoyne Hicks White, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

3. In a separate enumeration of error, Morris argues that the indictment was void for failure to allege the essential element of intent. “[I]t is immaterial what the offense is called in the indictment as long as the averments of the presentment are such as to describe an offense against the laws of the [S]tate.” (Punctuation and footnote omitted.) Doe v. State, 306 Ga. App. 348, 350 (1) (702 SE2d 669) (2010). See State v. Eubanks, 239 Ga. 483, 484 (238 SE2d 38) (1977) (indictment not fatally defective where it named the crime as “theft by deception” but alleged facts that constituted theft by conversion); Hill v. State, 257 Ga. App. 82, 84 (1) (570 SE2d 395) (2002) (“It is the description of the crime, rather than the description and number of the section under which it appears in the Code which furnishes the criterion for determining whether the indictment is good.”) (citation and punctuation omitted). As explained in Division 2, the factual allegations in the indictment in the instant case sufficiently described the offense of involuntary manslaughter in the commission of the unlawful act of simple battery. Consequently, the indictment was not void.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       At trial, Morris also claimed that the pedestrian spit at him through the open window of his truck.

       The prosecutor initially requested that the case also proceed on the lesser included charge of involuntary manslaughter by the commission of the unlawful act of reckless conduct, but later withdrew this request.

       Morris relies upon Smith v. Hardrick, 266 Ga. 54, 56 (3) (464 SE2d 198) (1995), which held that an indictment charging aggravated assault was fatally defective because it merely alleged that the defendant placed his hands around the victim’s neck and used his hands to apply pressure to her neck contrary to the law. In contrast, the language in the indictment here is stronger because it alleges that Morris caused the victim’s death by striking the victim with his fist, while acting as a result of a sudden, violent, and irresistible passion resulting from serious provocation, contrary to the law. See Beals, 288 Ga. App. at 816 (1) (distinguishing Smith).


source: Caselaw Access Project

author: DOYLE, Judge.

license: Public Domain

text:
    A11A0329.
    PRICE v. THE STATE.
    (712 SE2d 135)
   DOYLE, Judge.

Following a jury trial, Kaycee Price was convicted of three counts of obtaining a controlled substance by fraudulent means and seven counts of forgery. Price appeals, arguing that the trial court erred by: (1) denying her motion for mistrial based on improper comments by the trial court regarding the credibility of a witness; (2) overruling her objection to the prosecutor’s closing arguments; and (3) imposing an improper sentence. We reverse Price’s conviction and remand the case for a new trial, for reasons that follow.

Viewed in favor of the verdict, the record shows that Price was hired as a data entry clerk for Dr. Herman Levy’s medical practice in 2000; she eventually became the office manager. Price called a pharmacy and ordered multiple refills of a hydrocodone prescription for herself. Dr. Levy testified that he did not authorize Price to call in the prescription refills, explaining that “[he] would not authorize anyone to call in a narcotic prescription for themselves. No way, no how, nothing. . . . That’s my standard operating procedure.” Price also stamped Dr. Levy’s signature on multiple refill prescriptions for Adderall (an amphetamine) for her husband, Derek Cody. According to Dr. Levy, he prescribed Adderall for Cody in May 2007, but he did not authorize Price to stamp his name to any of Cody’s Adderall prescription refills.

At the conclusion of the trial, the jury found Price guilty of three counts of obtaining hydrocodone by fraudulent means (Counts 2, 3, and 4) and seven counts of forgery (Counts 13-19) with regard to the Adderall prescription. This appeal follows.

1. Price argues that the trial court erred by denying her motion for mistrial after the court’s “improper attack on the credibility of a defense witness.” We agree that the trial court’s actions require reversal.

Holly Durden, Price’s friend and a former clerical employee of Dr. Levy, testified during the State’s case-in-chief. Durden stated that Dr. Levy treated her and provided her with a prescription for medication while she worked for him, but he never permitted her to call in prescriptions or refills to the pharmacy. After Dr. Levy and his wife, Joni Levy (the office administrator at Dr. Levy’s practice), testified for the State, Price called Durden as a defense witness. Durden stated that several months before the trial, she was not feeling well and called Mrs. Levy’s cell phone to try and get in touch with Dr. Levy. Durden testified that during the call, Mrs. Levy stated that “they’ve scratched my back before, that now I need to scratch their back, and I didn’t go any further with that”; according to Durden, Mrs. Levy was talking about the criminal case against Price. Durden then went on to testify that Price had a good reputation and that she would believe Price under oath. Thereafter, the trial court interrupted the State’s brief cross-examination of the witness and engaged in the following colloquy with Durden:

THE COURT: Are you lying under oath up here?
THE WITNESS: No, ma’am.
THE COURT: Would you lie under oath for —
THE WITNESS: No, ma’am.
THE COURT: — for Dr. Levy and his wife —
THE WITNESS: No, ma’am.
THE COURT: — or his firm?
THE WITNESS: No, ma’am.
THE COURT: Everything you’ve said has been truthful?
THE WITNESS: Yes, ma’am.

Price immediately moved for a mistrial outside the presence of the jury, arguing that the trial court “made a comment upon the testimony of Holly Durden indicating that the [c]ourt believes that she was not telling the truth.” In response, the trial court stated:

That’s not. . . what this [c]ourt did. You asked her to say about you scratch my back or something and what I wanted to know, was she lying under oath up here or is everything she told this [cjourt truthful. I wanted to hear her tell me it was truthful. That’s exactly what she said. Your motion is denied. It was meant to determine whether or not she got up here — the innuendo is that she would get up here and lie. What this [cjourt wanted to know is whether or not she did. She convinced this [c]ourt that she did not. And if you misread what the [c]ourt did, I’m sorry you misread it, but your motion is denied.

On appeal, Price argues that the trial court’s questioning of Durden violated OCGA § 17-8-57, which provides as follows:

It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

“The purpose of this limitation at least in part is to prevent the jury from being influenced by any disclosure of the judge’s opinion regarding a witness’s credibility.”

Certainly, “[i]t is a court’s right, and oftentimes its duty, to question a witness in order to develop fully the truth of a case. However, that right should be exercised sparingly . . .” and only if the trial court “does not violate the statutory prohibition set forth in OCGA § 17-8-57 against expressions or intimation of opinion as to what has or has not been proved as to the guilt of the accused.” It is axiomatic that “[t]he credibility of a witness is a material fact in every case, and any questions of credibility are for the jury to decide. Therefore, anything which tends to uphold, to support, to disparage, or to lower the character and the resulting credibility of the witness is vitally connected with the facts of the case.”

In this case, the trial court’s questions to the witness — consisting merely of asking the witness whether she was lying or being truthful — clearly intimated the court’s opinion regarding the credibility of her testimony and were therefore patently improper.

Any reasonable juror, having heard the trial court’s comments, might well construe them as an expression of opinion on the credibility of the [witness]. The members of the jury heard the trial court’s words, and no man could dare say that they were not thereby influenced to some extent, at least. Jurors, like other human beings, are unconsciously too much affected by strong mental impressions for these impressions to be nicely segregated from the mass of evidence.

Decided June 17, 2011.

Zipperer, Lorberbaum & Beauvais, Alex L. Zipperer, Eric R. Gotwalt, for appellant.

Here, it was undisputed that Price called in the hydrocodone refill prescriptions and stamped Dr. Levy’s name to her husband’s Adderall refills. The sole issue, therefore, was whether she did so with the express authority and at the direction of Dr. Levy. Resolution of this issue depends wholly on the jury’s determination of the credibility of the witnesses. Although the trial court explained that she asked the questions of Durden because the court “wanted to know [if] she [was] lying under oath ... [or if] everything she told [the c]ourt [was] truthful,” the judge’s credibility determinations regarding the witnesses were irrelevant. The trial court’s questions improperly usurped the role of both the jury and the prosecution.

“ ‘In light of the mandatory nature of the statute and the case law interpreting the statute, we must reverse [Price’s] conviction[ ] and remand the case to the trial court for a new trial’ ” as to the ten counts for which she was convicted. Because Price was adjudged not guilty of Counts 1 and 5-12, however, the State cannot retry her for those counts.

2. In light of our holding in Division 1, we need not address Price’s remaining enumerations of error.

Judgment reversed and case remanded.

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

Jacquelyn L. Johnson, District Attorney, Jonathan R. Miller III, Assistant District Attorney, for appellee.

       OCGA §§ 16-13-43 (a) (3); 16-13-26 (1) (A) (ix).

       OCGA § 16-9-1 (a).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       Price testified that she ordered the refills for her hydrocodone prescription at Dr. Levy’s direction and with his authorization, and she stated that he was usually in her office when she made the calls to the pharmacy.

       Price testified that Dr. Levy ordered the Adderall refills and that she stamped his name with his direct authorization because he was out of the office.

       The State also charged Price with an additional nine counts of obtaining a controlled substance by fraudulent means, alleging that she called in additional refills of hydrocodone for herself, but the jury found her not guilty of those nine counts (Counts 1, 5-12).

       Mrs. Levy testified that Price “walked off the job” after Mrs. Levy spoke to her about her job performance. Thereafter, Mrs. Levy was present when the pharmacy called the office to confirm Price’s hydrocodone refill, and Mrs. Levy spoke to the police during the subsequent criminal investigation.

        Craft v. State, 274 Ga. App. 410, 411 (1) (618 SE2d 104) (2005).

       (Punctuation and footnote omitted.) Milner v. State, 270 Ga. App. 80, 83 (1) (606 SE2d 91) (2004).

        Walker v. State, 267 Ga. App. 155, 158 (2) (598 SE2d 875) (2004).

       (Punctuation and footnotes omitted.) Callaham v. State, 305 Ga. App. 626, 627 (1) (700 SE2d 624) (2010).

       Compare Davenport v. State, 308 Ga. App. 140, 157 (3) (706 SE2d 757) (2011) (trial court’s comments regarding the evidence were made outside the presence of the jury); Morales v. State, 286 Ga. App. 698, 701 (2) (649 SE2d 873) (2007) (same).

       (Citation and punctuation omitted.) Chumley v. State, 282 Ga. 855, 858 (2) (655 SE2d 813) (2008).

        Callaham, 305 Ga. App. at 628 (1). See OCGA § 17-8-57.

       See Brown v. Ohio, 432 U. S. 161, 165 (97 SC 2221, 53 LE2d 187) (1977); Terrell v. State, 276 Ga. 34, 38-39 (4) (a) (572 SE2d 595) (2002).


author: Doyle, Judge.

text:
    A11A0367.
    DOWNER v. THE STATE.
    (712 SE2d 571)
   Doyle, Judge.

A Gordon County jury found Johnny Downer, Jr., guilty of three counts of child molestation. Downer appeals from the denial of his motion for new trial, challenging the sufficiency of the evidence. He also contends that the trial court erred by admitting similar transaction evidence and that trial counsel provided ineffective assistance. For the reasons that follow, we affirm.

On appeal from a criminal conviction, Downer no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the verdict. We neither weigh the evidence nor determine witness credibility, “but only determine if the evidence was sufficient for a rational trier of fact to find [Downer] guilty of the charged offense beyond a reasonable doubt.” “As long as there is some [competent] evidence, even though contradicted, to support each [fact] necessary [to make out] the State’s case, the [jury’s] verdict will be upheld.” “The testimony of a single witness is generally sufficient to establish a fact.”

So viewed, the evidence at trial shows that four-year-old F. D. and six-year-old E. D. alleged that Downer, their grandfather, had molested them. F. D. testified that, while staying at her grandparents’ house, Downer pulled her pants and panties down and touched her genital area with his hand. Downer also forced her hand to touch and move his penis under his boxers. Her sister, E. D., also testified that Downer touched her genital area with his hand on top of her clothes.

The mother of the victims testified that F. D. told her that Downer touched her private parts and described the hair near Downer’s privates as soft. Furthermore, F. D. revealed that Downer told her to stay quiet about the situation. The mother also testified that E. D. disclosed that Downer had touched her. The mother’s conversations with her daughters occurred approximately two to three weeks after the molestations.

The mother, who was living in a battered women’s shelter with her daughters, told a shelter worker about the molestation. After the worker called the Gordon County Sheriffs Department to make a report concerning the victims’ revelations, the mother spoke to Detective Trish Bedford. Bedford’s recorded interview with the victims following the initial police report, as well as the detective’s subsequent testimony, confirmed the same details of the victims’ initial outcries. Furthermore, Downer’s stepdaughter, A. G., testified that Downer stated he was lying in bed with his back to F. D. when he woke up to find her hand on his penis.

The State also introduced A. G.’s testimony regarding similar transaction evidence. A. G., who is now thirty-one, testified that Downer began inappropriately touching her when she was approximately eight or nine years old after Downer married her mother. According to A. G., Downer touched her over her clothing once, touched her skin multiple times, and masturbated once in her presence. After she told her mother, A. G. was moved to her brother’s room before moving in with her father.

. 1. Downer contends that the inconsistent testimonies of the victims and his stepdaughter’s allegation were not sufficient evidence to support his guilty verdict. We disagree.

A person commits the offense of child molestation when [he or she does] any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.

The uncorroborated testimony of a child molestation victim alone authorizes a rational trier of fact to find a defendant guilty beyond a reasonable doubt. Here, the testimonies of F. D. and E. D., including F. D.’s testimony that Downer touched her genital area with his hand and pulled her hand to touch his penis, as well as E. D.’s testimony that Downer touched her genital area, was sufficient to support the verdict. In addition, testimonies of the victims’ mother and the detective who interviewed E. D. and F. D. corroborated the victims’ testimonies. The conviction was also supported by additional evidence, such as the testimony regarding Downer’s previous molestation of his stepdaughter.

With respect to any inconsistencies between the victims’ testimony and prior statements and the credibility of Downer’s stepdaughter, we reiterate that credibility is a matter for the jury’s assessment and not this Court. The jury was aware of any inconsistencies and chose to credit the victims’ versions of the events. Accordingly, we conclude that this evidence is sufficient to authorize the jury’s finding that Downer was guilty beyond a reasonable doubt of the offenses of child molestation.

2. Downer further contends that the trial court erred by admitting similar transaction testimony regarding his prior molestation of his stepdaughter, A. G. Specifically, he argues that the State did not articulate some substantive similarity between the alleged molestation of Downer’s stepdaughter and the victims in the case during the pre-trial hearings on similar transaction admissibility. We disagree.

The State properly fulfilled the requirements for introducing similar transaction evidence set forth by the three prong test in Williams v. State. First, the State sought to introduce the evidence to show bent of mind, course of conduct, and the defendant’s motive, all of which have been held to be permissible reasons. Second, the State presented sufficient evidence that A. G.’s detailed testimony would show that Downer had committed the act. Finally, there was ample evidence to show that the similar transaction evidence in the instant case was sufficiently similar.

[I]n crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. There need only be evidence that the defendant was the perpetrator of both acts and sufficient similarity or connection between the independent crime and the offenses charged. The trial court’s decision to admit similar transaction evidence will not be disturbed absent an abuse of discretion.

“[Sjexual molestation of young children, regardless of sex or type of act, is [of] sufficient similarity to make [the] evidence admissible.” Furthermore, we have previously held that “similar transaction evidence that shows a pattern of sexual abuse against several generations of members of the same family is admissible. . . ,”

Here, A. G. testified that she was molested by Downer while living in his home with her mother. Her testimony stated that Downer molested her both over and under her clothing, as well as masturbated in front of her. In the instant case, E. D. and E D. testified that they were molested by Downer while staying in his home. F. D. stated that Downer inappropriately touched her after pulling down her pants and panties, as well as forced her hand to move his penis under his boxers. E. D. testified that Downer inappropriately touched her over her clothes. Because both the instant case and the similar transaction involved Downer molesting underage family members who were in his home, we conclude that there was no abuse of discretion by the trial court in determining that there was sufficient similarity between the prior acts and the crime charged. Moreover, the State’s proffer prior to trial was sufficient.

3. Downer also maintains that he received ineffective assistance of counsel. Specifically, he argues that his trial counsel failed to call a witness who would have testified that the molestation allegations were fabricated by the victims. He also claims that trial counsel did not properly investigate the case due to insufficient time to prepare. The trial court denied Downer’s motion for a new trial raising this claim. “We accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” In denying Downer relief, the trial court stated that trial counsel was effective and that Downer failed to show harm.

To establish ineffective assistance of counsel,

the defendant must show that the counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

The defendant has the burden to “overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.”

(a) Downer contends that trial counsel failed to call his “star witness,” M. D., the two victims’ sister. Downer claims M. D. would have testified that her sisters were lying about their child molestation claims. When a court assesses “the prejudicial effect of defense counsel’s failure to call a witness, [the appellant] is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case.”

As the trial court found, there is nothing in the record to indicate that M. D. would have given testimony favorable to Downer. Furthermore, trial counsel articulated to Downer’s wife a valid reason for not calling M. D. as a witness, stating that calling M. D. to testify would hurt more than it would help. Thus, his strategy does not constitute ineffective assistance of counsel.

Trial strategy and tactics, such as deciding which witnesses to call, do not equate with ineffective counsel unless they are so patently unreasonable that no competent attorney would have chosen them. Thus, Downer has not met his burden under Strickland.

(b) Downer further contends that trial counsel did not have sufficient time to prepare for the trial and, therefore, did not properly investigate the case. Specifically, Downer claims that he only met twice with trial counsel, and trial counsel did not investigate Downer’s family problems, which he believed could play an important role at trial. This Court, however, has held that “mere shortness of time for preparation of counsel is insufficient to show ineffectiveness.” Furthermore, our review of the trial transcript reveals that in the instant case, defense counsel was well versed in the law and the facts of the case, conducted a thorough cross-examination of the State’s witnesses, and was granted a directed verdict of acquittal for one of the counts of child molestation.

Thus, the trial court did not clearly err by denying Downer’s motion for new trial on this basis.

Judgment affirmed.

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

Decided June 17, 2011.

Jennifer E. Hildebrand, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

       OCGA § 16-6-4 (a).

       See Brookshire v. State, 288 Ga. App. 766 (655 SE2d 332) (2007).

       Id. (citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)).

        Foster v. State, 286 Ga. App. 250, 252 (1) (649 SE2d 322) (2007).

       (Punctuation omitted.) Shorter v. State, 271 Ga. App. 528, 528-529 (610 SE2d 162) (2005).

       OCGA § 16-6-4 (a).

       See Honeycutt v. State, 245 Ga. App. 819, 819-820 (1) (538 SE2d 870) (2000).

       See id.

       See Sarratt v. State, 299 Ga. App. 568, 569 (1) (683 SE2d 10) (2009).

       See id.

       See id.

       284 Ga. App. 255 (643 SE2d 749) (2007).

       See Pareja v. State, 286 Ga. 117, 119 (686 SE2d 232) (2009).

       See id.

       (Citations and punctuation omitted.) Boileau v. State, 285 Ga. App. 221, 224 (2) (645 SE2d 577) (2007).

       (Punctuation omitted.) Williams, 284 Ga. App. at 258 (2).

       (Punctuation omitted.) Henderson v. State, 303 Ga. App. 531, 535 (3) (694 SE2d 185) (2010).

       See Pareja, 286 Ga. at 119.

       (Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

        Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).

        Garrett v. State, 196 Ga. App. 872, 873 (1) (397 SE2d 205) (1990).

        Sarratt, 299 Ga. App. at 570 (2) (a).

       See Noe v. State, 287 Ga. App. 728, 731 (2) (652 SE2d 620) (2007).

       See Sarratt, 299 Ga. App. at 571 (2) (c).

       (Punctuation omitted.) Hinkle v. State, 282 Ga. App. 328, 329 (2) (638 SE2d 781) (2006).


author: Phipps, Presiding Judge.

text:
    A11A0413.
    HATTON v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (712 SE2d 141)
   Phipps, Presiding Judge.

Acting on her own behalf, Shirley Hatton sued Metropolitan Atlanta Rapid Transit Authority (MARTA) in 2007, alleging she was injured while boarding a MARTA train in 2001. This was the third action Hatton had filed against MARTA based on the incident. MARTA moved to dismiss this action contending, among other things, that it was barred by the statute of limitation. Hatton countered that she was entitled to file a renewal action following her voluntary dismissal of the first action (which had been filed within the two-year limitation period), and that the third action was filed after the court improperly dismissed her second action. The trial court granted MARTA’s motion to dismiss the third action, and Hatton appeals. Finding no error, we affirm.

Hatton filed her initial complaint against MARTA on January 8, 2003, alleging that she had been injured on January 23, 2001. Hatton voluntarily dismissed the first action in August 2003. Hatton filed a second complaint against MARTA in February 2004, asserting the same claims. In November 2005, the court entered an order granting MARTA’s motion to dismiss the second action based on Hatton’s failure to appear for court-ordered mediation; Hatton did not file a notice of appeal from the dismissal of the second action until November 2010.

In November 2007, Hatton filed a third action against MARTA, based on the same incident. The instant appeal is from the court’s February 2010 order granting MARTA’s motion to dismiss the third action.

1. Hatton’s third action was not authorized. The right to renew a previously dismissed action after the statute of limitation has expired is governed by OCGA § 9-2-61, which provides in pertinent part that when any case has been commenced in a state court within the applicable statute of limitation and the plaintiff dismisses the case, it may be recommenced in a court of this state either within the original applicable period of limitation or within six months after the dismissal, whichever is later. This action was commenced more than four years after the statute of limitation period expired and more than four years after Hatton dismissed the initial action. Moreover, Hatton was entitled to exercise the privilege of renewal only once, which she did when she filed the second action. Accordingly, the trial court did not err in dismissing the third action.

Decided June 17, 2011.

Shirley L. Hatton, pro se.

John K. Franks, for appellee.

2. Hatton contends that the court erred in dismissing the third action “without reviewing all of the records in [their] entirety.” However, there is no evidence that the court failed to consider all records material to this appeal, and we will not presume error from a silent record.

3. To the extent Hatton seeks in this appeal to challenge the court’s dismissal of her second action, we lack appellate jurisdiction. We cannot consider that dismissal under OCGA § 5-6-34 (d), because it was not rendered in this case, but rather in a separate case.

Judgment affirmed.

Andrews and McFadden, JJ, concur.

       OCGA § 9-3-33 provides a two-year statute of limitation for actions for personal injury.

       OCGA § 9-2-61 (a); Belcher v. Folsom, 258 Ga. App. 191 (573 SE2d 447) (2002).

       See Worley v. Pierce, 211 Ga. App. 863, 864 (1) (440 SE2d 749) (1994).

       See generally Witherington v. Adkins, 271 Ga. App. 837, 843-844 (2) (b) (610 SE2d 561) (2005) (plaintiff precluded from seeking relief where he failed to renew claim within six-month period after dismissal as set out in OCGA § 9-2-61 (a)).

       See Cooper-Bridges v. Ingle, 268 Ga. App. 73, 76 (1) (601 SE2d 445) (2004),

       See Nelson v. Haugabrook, 282 Ga. App. 399, 403 (2) (638 SE2d 840) (2006); Bailey v. McNealy, 277 Ga. App. 848, 849 (2) (627 SE2d 893) (2006). Compare OCGA § 5-6-34 (d) (allowing review of other judgments, rulings or orders rendered in the case); Mateen v. Dicus, 281 Ga. 455, 456 (637 SE2d 377) (2006) (where direct appeal is taken from a final judgment, all judgments, rulings or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed by the appellate court, provided appellant included in the notice of appeal the single judgment that entitled him or her to take the appeal).


text:
    A11A0553.
    In the Interest of K. A. F., a child.
    (712 SE2d 138)
   Doyle, Judge.

K. A. F. was adjudicated delinquent in the Juvenile Court of Chatham County based on a petition alleging that he entered an automobile with the intent to commit a theft or felony. On appeal, K. A. F. argues that the evidence was insufficient to support his delinquency adjudication. We affirm for the reasons that follow.

On appeal from a delinquency adjudication, we view the evidence in a light most favorable to support the juvenile court’s findings and judgment. Because it is the juvenile court’s role to resolve conflicts in the evidence, we do not weigh the evidence, but merely evaluate its sufficiency.

So viewed, the evidence presented to the juvenile court shows that on August 14, 2010, Jacquelyn McDonald, accompanied by her child and husband, parked her car and entered a local restaurant to place a take-out order. While she waited on her order, K. A. E, whom McDonald recognized from the neighborhood, entered the restaurant, looked at her, and then exited. K. A. F. soon re-entered the restaurant, this time standing between McDonald and her vehicle. As McDonald prepared to leave, a woman entered the restaurant to tell her that someone was breaking into McDonald’s car. McDonald saw K. A. F. and another male run away from the area with her purse and jump over a chain link fence; the window of McDonald’s vehicle had been smashed. McDonald gave the responding officers a physical description of K. A. F.’s hair style and clothing, which he was still wearing when police confronted him 15 minutes later. When McDonald’s purse was found in a nearby shed, $340 was missing.

K. A. F. argues that there was insufficient evidence to support his entering an automobile adjudication because the State failed to produce sufficient evidence to exclude the hypothesis that K. A. F. was merely present at the scene of the crime in which he did not participate. We disagree and affirm the adjudication.

“While mere presence at the scene of the crime is not sufficient evidence to convict one of being a party to the crime, presence coupled with companionship and conduct before and after the offense are circumstances from which criminal intent may be inferred.” Moreover, a person is guilty of entering an automobile if he “enter[s] any automobile or other motor vehicle with the intent to commit a theft or a felony,” and “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” Although K. A. F. told officers that he was asked by an individual named Kenny to see if McDonald was playing a video game inside the restaurant and that he was not involved with the theft of the purse from McDonald’s vehicle, McDonald’s testimony concerning K. A. F.’s conduct during and after the theft was sufficient to support the juvenile court’s adjudication of delinquency in this case.

Decided June 17, 2011.

Yolanda Bacharach, for appellant.

Larry Chisolm, District Attorney, Bess L. Walthour, Diane M. McLeod, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       OCGA § 16-8-18.

       (Punctuation omitted.) In the Interest of J. T., 297 Ga. App. 636, 637 (678 SE2d 111) (2009).

       (Punctuation omitted.) In the Interest of B. D., 287 Ga. App. 185, 186 (651 SE2d 129) (2007).

       OCGA § 16-8-18.

       OCGA § 16-2-20 (a).

       See Walker v. State, 281 Ga. App. 94, 97 (1) (635 SE2d 577) (2006).


text:
    A11A0648.
    POWELL v. THE STATE.
    (712 SE2d 139)
   Doyle, Judge.

Following a jury trial, Sandy Powell was convicted of robbery. Powell appeals the denial of his motion for new trial, arguing that the evidence was insufficient to support his conviction. We disagree and affirm.

When reviewing a defendant’s challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

So viewed, the evidence shows that on February 19, 2009, Steven Hulsey gave Jessica Davis a ride to Powell’s house. Hulsey waited in the car while Davis entered Powell’s house. While inside, Davis spoke with Randy Pitts, and the two decided to rob Hulsey. Davis returned to Hulsey’s car, and they proceeded to a Ramada Inn. During the drive, Davis repeatedly sent text messages to Pitts’s cell phone, discussing the impending robbery.

When they arrived at the motel, Davis urged Hulsey to ask for a room at the back of the complex. Once in the motel room, Hulsey decided to take a shower. Hulsey placed his wallet, which contained approximately $2,300 in cash, in a stack of towels in the bathroom before entering the shower.

Meanwhile, Powell, Pitts, Chris Marable, and Ryan Freeman left Powell’s house and drove to the motel. While en route, there were multiple text messages exchanged with Davis regarding the robbery, which all four occupants of the car discussed. When they arrived at the motel, the four men entered the motel room, while Hulsey was in the shower. Davis did not know where Hulsey’s wallet was located, so Pitts directed her to go into the bathroom and ask Hulsey for some money to get a drink. Davis complied and told Pitts that Hulsey’s wallet was in the bathroom. Pitts then went into the bathroom, struck Hulsey in the face, took his wallet, and then left the motel in the car with Davis, Powell, Marable, and Freeman. The group returned to Powell’s house, where they divided up the money Pitts took from Hulsey. After the robbery and his subsequent arrest, Powell asked Hulsey if he would be willing to drop the charges if his money was returned to him; Hulsey agreed, but his money was never returned.

On appeal, Powell argues that the evidence was insufficient to demonstrate that he was a party to Hulsey’s robbery rather than merely present at the scene of the crime before the actual robbery. We disagree.

“A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another . . . [b]y use of force.” “Even if a person does not directly commit the crime, a person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime.” Factors to consider when determining whether a person is a party to a crime include “the person’s presence, companionship, and conduct before and after the crime. . . .”

Here, testimony that Powell was present in the car with Pitts, Freeman, and Marable, and that he participated in the discussion about the robbery, combined with his subsequent entry into the motel room where Davis and Hulsey were present and his flight thereafter, was sufficient to support his robbery conviction.

Decided June 17, 2011.

Edgar A. Callaway, Jr., for appellant.

Richard R. Read, District Attorney, Roberta A. Earnhardt, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       OCGA § 16-8-40 (a) (1).

        Jones v. State, 302 Ga. App. 147 (1) (690 SE2d 460) (2010). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 16-8-40 (a) (1).

       (Citation and punctuation omitted.) Green v. State, 298 Ga. App. 17, 20 (1) (679 SE2d 348) (2009). See OCGA § 16-2-20 (b) (3), (4).

        Parks v. State, 272 Ga. 353, 354 (529 SE2d 127) (2000).

       See Millender v. State, 286 Ga. App. 331, 332 (1) (648 SE2d 777) (2007); Cutkelvin v. State, 258 Ga. App. 691, 693-694 (1) (574 SE2d 883) (2002); Barnett v. State, 244 Ga. App. 585, 588 (2) (536 SE2d 263) (2000).


author: Andrews, Judge.

text:
    A11A0765.
    WILKEN INVESTMENTS, LLC et al. v. PLAMONDON.
    (712 SE2d 576)
   Andrews, Judge.

Wilken Investments, LLC, Kenneth Pennington and William Pennington (collectively “Wilken”) appeal from the trial court’s order granting William Plamondon’s motion to dismiss Wilken’s claims against him with prejudice. Wilken contends that the trial court’s order is incorrect on its face and any claims dismissed should have been without prejudice. Because there is nothing in the trial court’s order that allows us to determine upon what grounds the trial court granted the motion to dismiss or what evidence it considered in determining that the dismissal would be with prejudice, we vacate the order and remand the case to the trial court for clarification.

The evidence in the record shows that Wilken Investments sued Heller Acquisition and William Plamondon individually, claiming, among others, breach of contract, fraudulent transfer of assets, conversion, attorney fees, and punitive damages. Wilken filed a second amended complaint on October 27, 2008, alleging conversion against both Heller and Plamondon, a request for attorney fees, and a claim for $100,000 against Plamondon for engaging in a conflict-of-interest transaction resulting in an unauthorized distribution to either Plamondon himself or Heller.

Wilken was granted summary judgment on two of its claims against Heller, and later obtained a default judgment on all of its remaining claims when Heller did not appear for trial. At the time of the default judgment against Heller, Plamondon had never been served in his individual capacity.

Approximately seven months after the default judgment against Heller, Wilken was able to serve Plamondon individually. Plamondon filed a motion to dismiss for lack of personal jurisdiction and later filed an amended motion to dismiss for lack of personal jurisdiction and failure to state a claim upon which relief can be granted.

The trial court held a hearing on all pending motions in the case. The court stated that its ruling on the issue of the motion to dismiss was that

there is no case anymore against Plamondon. . . . You are not entitled to have a trial and then have the case continue to exist forever. ... I don’t [know] whether there is still a claim against Mr. Plamondon under the statute of limitations or not, but it doesn’t seem like you can wait three years, almost three plus years, and then have the case come up for a hearing. A hearing that was scheduled, by the way, by me, not by any of the parties asking for it. . . . That case, as to Mr. Plamondon is over. And so any case further against Mr. Plamondon needs to be pled and re[-] served, refiled, all of that.

Although the court’s language at the hearing indicated that any dismissal would be without prejudice, the court issued a written order as follows:

A final judgment was granted in favor of Plaintiff Wilken and against R. I. Heller Acquisition, Atlanta!,] LLC on August 15, 2007. Plaintiffs had not served Plamondon at that time. Since Plaintiffs failed to serve Plamondon before entry of the judgment, Plamondon was not a party. The judgment was final as to all the parties. Small v. Peacock, 171 Ga. 475 [(155 SE 754)] (1930). Service of the original complaint after the judgment was a nullity because Plam-ondon could not become a party to a closed case. IT IS HEREBY ORDERED that Wilken’s case is DISMISSED WITH PREJUDICE against Defendant William N. Plamon-don, III.

It is undisputed that the judgment was entered only against Heller Acquisition and also undisputed that the claims against Plamondon individually were not part of the judgment because he was never a party in the case. Therefore, on its face, the order appears to be making an incorrect statement of the law. See Chrison v. H & H Interiors, 232 Ga. App. 45 (500 SE2d 41) (1998). In Chrison, although named as a defendant, the corporation was never served in a previous Tennessee action and “therefore was not a party to the Tennessee action when it was dismissed with prejudice.” Id. at 50. Accordingly, this Court held that the plaintiffs’ claims against the corporation could go forward. Id.

The dismissal with prejudice was also error if, as the comments of the trial court at the hearing seem to indicate, the court was dismissing the case against Plamondon for failure to prosecute. See Lloyd v. Whitworth, 210 Ga. App. 714, 715 (437 SE2d 636) (1993) (“Pursuant to OCGA § 9-11-41 (b), a dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits, therefore it follows that such a dismissal cannot be with prejudice.”).

Plamondon argues that all of the claims were adjudicated, but the record does not support this statement. For instance, Plamondon claims that the court already considered the fraud and conversion claims against him and “rejected” them. In support of this assertion Plamondon cites to comments made by the court in a hearing on the request for a temporary restraining order (“TRO”). The only “ruling” in that case was the court’s decision to deny the TRO. There was no adjudication of any claims in the complaint on their merits. Further, Wilken states that the statutes of limitation had not run on its claims against Plamondon when he was served on March 6, 2008. Wilken points out that the claims against Plamondon arose between 2005 and 2007 and the statutes of limitation were four years. Plamondon does not dispute this.

Had the trial court granted the motion under OCGA § 9-11-12 (b) (6) for failure to state a claim upon which relief can be granted, the dismissal would have been with prejudice. See Dillingham v. Doctors Clinic, 236 Ga. 302 (223 SE2d 625) (1976). But

[a] motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

Andrade v. Grady Mem. Hosp. Corp., 308 Ga. App. 171, 172 (707 SE2d 118) (2011). Further,

[i]f. . . the trial court elects to consider matters outside of the pleadings, the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by that code section. OCGA § 9-11-12 (b).

Decided June 17, 2011.

Johnson & Ward, Stanley E. Kreimer, Jr., for appellants.

Hawkins, Parnell, Thackston & Young, Robert S. Thompson, Carl H. Anderson, Jr., for appellee.

Cox Enterprises v. Nix, 273 Ga. 152, 153 (538 SE2d 449) (2000).

Here, we cannot conclude that the trial court granted the motion to dismiss for failure to state a claim and, therefore, it is equally unclear what evidence it considered in making its ruling. Even if the record, as it stands, could support the judge’s ruling, it also shows that Wilken was never given notice that the trial court intended to rule on the merits of its claims and therefore was not provided a full and fair opportunity to respond. Sumner v. Dept. of Human Resources, 225 Ga. App. 91, 93 (483 SE2d 602) (1997). Accordingly, because we are unable to determine the grounds for granting the motion to dismiss with prejudice and because we are unable to determine, from the record before us, whether that grant was error, the judgment in this case is vacated and the case is remanded to the trial court for further consideration and clarification of its order.

Judgment vacated and case remanded.

Phipps, P. J., and McFadden, J., concur.


author: Blackwell, Judge.

text:
    A11A0671.
    GAUDLOCK v. THE STATE.
    (713 SE2d 399)
   Blackwell, Judge.

John Thomas Gaudlock was tried by a Hall County jury and convicted of unlawfully possessing both cocaine and more than an ounce of marijuana. He appeals from the judgment of conviction, asserting that the State failed to adduce sufficient evidence at trial of his possession of more than an ounce of marijuana and that the trial court erred when it admitted evidence of a similar transaction. We see no error and affirm.

1. We first consider whether the evidence adduced at trial is sufficient to sustain the conviction for possession of more than an ounce of marijuana. Gaudlock does not dispute that the State presented competent evidence that he possessed marijuana and that the marijuana in his possession had a weight of 28.8 grams, and he also does not dispute that 28.8 grams is more than an ounce. He claims, however, that the evidence is insufficient to sustain his conviction because no witness testified about how many grams equal an ounce. We find no merit in this claim.

The possession of an ounce or less of marijuana is a misdemeanor, see OCGA § 16-13-2 (b), and the possession of more than an ounce of marijuana is a felony. See OCGA § 16-13-30 (j). So, to prove felony possession of marijuana, the State must prove that the weight of the marijuana exceeded one ounce. See Whatley v. State, 189 Ga. App. 173, 175 (4) (375 SE2d 245) (1988). But to discharge this burden, we do not think that it is necessary for the State to come forward with evidence of how many grams equal an ounce, even if its witnesses testify about the weight of the marijuana in terms of grams. This is because the word “ounce” — as that word is used in the relevant statute, OCGA § 16-13-2 (b) — has a definite and precise meaning, and its meaning is a question of law, not fact. See Expedia, Inc. v. City of Columbus, 285 Ga. 684, 689 (4) (681 SE2d 122) (2009) (“The interpretation of statutes and ordinances is a question of law. . . .”) (citation omitted). When the statute refers to an “ounce” of marijuana, it refers, as a matter of law, to an avoirdupois ounce, which is the equivalent of, when rounded up to the nearest hundredth of a gram, 28.35 grams. See Pasuer v. State, 271 Ga. App. 259, 260, n. 3 (609 SE2d 193) (2005), overruled on other grounds, Vergara v. State, 283 Ga. 175, 177 (1) (657 SE2d 863) (2008). The number of grams in an ounce is not something that varies from case to case or is open to reasonable dispute. Because the State adduced evidence at trial that Gaudlock had possession of 28.8 grams of marijuana — which is, by definition, more than one ounce of marijuana — the evidence is sufficient to sustain the conviction for possession of more than one ounce of marijuana.

2. We next consider whether the trial court abused its discretion when it admitted evidence of a similar transaction. The evidence in this case shows that, on April 27, 2008, a Gainesville police officer stopped a vehicle in which Gaudlock was a passenger. After the driver and another passenger exited this vehicle — leaving Gaudlock as its only remaining occupant — the officers saw several bags thrown from the vehicle. Officers searched the area around the vehicle and found two bags containing marijuana and a third bag containing 1.87 grams of cocaine. The convictions in this case are based on Gaudlock’s possession of this marijuana and cocaine.

The prosecuting attorney asked the trial court to permit the State to present evidence at trial that Gaudlock also had been found in possession of cocaine on April 15, 2008, less than two weeks before the incident that gave rise to the charges for which Gaudlock was being tried. After a hearing, at which the trial court determined that the evidence of the April 15 incident was probative of whether Gaudlock had an intent to possess the cocaine thrown from the vehicle on April 27, the trial court gave the State leave to present such evidence at trial. The State did so, and this evidence shows that, on April 15, a confidential informant working with the Gainesville Police Department met Gaudlock and asked if he knew where the informant could buy cocaine. Gaudlock said that he did, and he directed the informant to a nearby location. At that location, Gaudlock retrieved less than a gram of cocaine and then sold it to the informant.

As our Supreme Court has explained, before evidence of another crime may be admitted as a similar transaction,

the State must show that it seeks to introduce the evidence for an appropriate purpose; that there is sufficient evidence to establish that the accused committed the independent act; and that there is a sufficient connection or similarity between the independent act and the crime charged so that proof of the former tends to prove the latter.

Johnson v. State, 289 Ga. 22, 24 (2) (709 SE2d 217) (2011) (citation and punctuation omitted). Gaudlock does not dispute that the State offered evidence of the April 15 incident for an appropriate purpose, to show intent, or that there is sufficient evidence to establish that Gaudlock possessed cocaine on April 15. Instead, Gaudlock contends that the April 15 incident is not similar enough to the April 27 incident because he sold cocaine on April 15, whereas he was charged only with simple possession of cocaine on April 27. We do not agree.

“When considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crimes and the crimes in question.” Hall v. State, 287 Ga. 755, 757 (2) (699 SE2d 321) (2010). Here, both incidents involved the possession of cocaine. The possession on April 15 was for the purpose of distribution — inasmuch as the evidence shows that Gaudlock did, in fact, distribute the cocaine on that occasion — and the possession on April 27 was for an unknown purpose and not clearly for personal use. One incident involved possession and sale of less than one gram of cocaine, the other involved possession of less than two grams of cocaine. Both incidents occurred in Hall County within a span of two weeks. Given these similarities, we cannot conclude that the trial court abused its discretion in this case. See Slaughter v. State, 282 Ga. App. 276, 279 (1) (638 SE2d 417) (2006) (trial court did not err in cocaine trafficking case when it admitted evidence that defendant had, on another occasion, possessed one “rock” of crack cocaine); Drummond v. State, 278 Ga. App. 631, 633 (1) (629 SE2d 543) (2006) (trial court did not err in cocaine trafficking case when it admitted evidence of similar transaction involving possession of one “hit” of cocaine).

Decided June 1, 2011

Reconsideration denied June 20, 2011

Charles E. W. Barrow, for appellant.

Lee Darragh, District Attorney, Shiv Sachdeva, Assistant District Attorney, for appellee.

For these reasons, we affirm the judgment of conviction below.

Judgment affirmed.

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

       See OCGA § 16-13-30 (a).

       See OCGA §§ 16-13-2 (b); 16-13-30 (1).

       Gaudlock challenges the sufficiency of the evidence only with respect to his conviction for possessing more than an ounce of marijuana. He does not dispute that the evidence is sufficient to sustain his conviction for possession of cocaine.

       In support of his argument that, when the State offers evidence of the weight of marijuana in terms of grams, it must also offer affirmative evidence about how many grams equal an ounce, Gaudlock cites our decisions in Sloan v. State, 172 Ga. App. 620, 620 (2) (323 SE2d 834) (1984), and Olds v. State, 293 Ga. App. 884, 888-889 (3) (668 SE2d 485) (2008). In each case, we found sufficient evidence in the record that the defendant possessed more than an ounce of marijuana, and we mentioned in each opinion that the State had presented evidence of how many grams equal an ounce. But neither case addressed, much less held, whether the State must present such evidence when its evidence of weight is expressed in terms of grams, rather than ounces. These decisions, consequently, do not control the outcome of this case.

       Because the definition of an “ounce,” as that term is used in the statute, is a question of law, it may be appropriate in some cases for a party to request a jury charge on the definition of an “ounce” as expressed in grams. But nothing in this opinion should be understood to suggest that an instruction always is required, especially absent a request for it, or that the failure to give such an instruction amounts to reversible error. We need not decide such things today.

       According to the National Institute of Standards and Technology, an agency of the United States Department of Commerce formerly known as the National Bureau of Standards, one avoirdupois ounce is precisely 28.349523125 grams. Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices, National Institute of Standards and Technology, Handbook No. 44, Appendix C at 12 (2010). Pursuant to OCGA § 10-2-2,
      [t]he definitions of basic units of weight and measure, the tables of weight and measure, and weights and measures equivalents as published by the National Bureau of Standards [now the National Institute of Standards and Technology] are recognized and shall govern weighing and measuring equipment and transactions in the State of Georgia.

       We will disturb the decision of a trial court to admit evidence of a similar transaction only when the trial court has abused its discretion. Moore v. State, 288 Ga. 187, 190 (3) (702 SE2d 176) (2010).

       Gaudlock says we should infer that the cocaine he possessed on April 27 was for personal use, but the evidence does not demand that inference, even if it permits it. That Gaudlock was not charged with possession of cocaine with intent to distribute on April 27 does not mean that he, in fact, did not intend to distribute that cocaine. Why he possessed that cocaine is unknown, and this ambiguity distinguishes this case from the case on which Gaudlock chiefly relies, King v. State, 230 Ga. App. 301, 303 (1) (496 SE2d 312) (1998) (trial court erred when, in case in which defendant was charged with possession of methamphetamine in his bodily fluids, it admitted evidence that defendant had sold methamphetamine many years before).


text:
    A11A0066.
    PUCKETT v. THE STATE.
    (712 SE2d 579)
   Doyle, Judge.

Following a jury trial, Jeremy Keith Puckett appeals from his conviction of one count of child molestation, contending that the trial court erred by (1) refusing to allow him to cross-examine the victim’s grandmother about her alleged prior false accusation of physical child abuse, (2) excluding evidence that another child at the victim’s daycare had touched the victim, and (3) improperly placing Puckett’s character at issue by admitting evidence that he had been sexually assaulted as a teenager. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that in January 2008, Puckett lived with his wife, Leila, and C. P, her daughter from a previous marriage, in a basement apartment they rented from Leila’s parents, Virginia and Tom Kaylor, who lived upstairs. One evening after Puckett, Leila, and Virginia finished playing cards, they watched television as they waited for three-year-old C. P to fall asleep in the room with them. Leila and Virginia began dozing, but Virginia soon awakened to see Puckett rubbing his hand on C. P’s thigh and vaginal area. When Puckett realized that Virginia had seen him, he immediately left the room.

Tom, Virginia, and Leila later confronted Puckett who initially denied the touching but ultimately admitted that he had been touching C. P inappropriately for approximately six months and became sexually aroused by seeing C. P naked after her baths. Puckett requested that they consult a neighbor who was a police officer, and the neighbor called police who arrived soon thereafter. Puckett told the responding officer that “he had inappropriately been touching his stepdaughter, and he . . . wanted to basically confess to it and . . . get the slate clean on it.”

Puckett was charged with one count of child molestation, and a jury found him guilty. After Puckett was sentenced, the trial court denied his motion for new trial, giving rise to this appeal.

1. Puckett contends that the trial court abused its discretion by sustaining the State’s relevance objection to Puckett’s attempted cross-examination of Virginia about whether she had falsely accused her daughter Leila of pushing C. P down the stairs. We disagree.

“The admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court whose decision will not be disturbed on appeal absent a clear abuse of discretion.”

Here, after Puckett’s trial counsel attempted to cross-examine Virginia about whether she had falsely accused Leila of pushing C. R down the stairs, the State objected on relevance grounds, and the trial court held a conference outside the presence of the jury. Puckett’s counsel argued that she was entitled to pursue the line of questioning under OCGA § 24-9-68, which states that “[t]he state of a witness’s feelings toward the parties and [her] relationship to them may always be proved for the consideration of the jury.” Puckett apparently sought to prove Virginia’s emotional power over the family and that her critical attitude toward her daughter’s parenting revealed bias.

We note at the outset that there was no evidence taken as to the date of the alleged false accusation, and the State proffered that the alleged false accusation was made in June 2008, six months after Virginia witnessed the offense at issue and confronted Puckett. Thus, the allegedly false accusation was not analogous to a prior false allegation of sexual abuse, which might have more relevance. Further, there was no evidence of a prior false allegation of sexual abuse made by C. P or any other witness, and Puckett failed to demonstrate the likelihood of falsity of Virginia’s allegation. Under these circumstances, we discern no clear abuse of the trial court’s discretion here. “The trial court has broad discretion to exclude evidence on grounds of relevancy, and if the proffered evidence is too tenuous to prove the desired matter and is possibly more prejudicial than probative, the trial court does not abuse its discretion in excluding the evidence.”

2. Puckett next contends that the trial court erred by excluding proffered hearsay testimony that in 2007, C. E told her mother that another child at C. P’s daycare had touched her private parts. Puckett proffered the evidence in response to prior testimony from a physician who treated C. E for a urinary tract infection in 2007. During that testimony, the State elicited testimony from the physician about the possible causes of the infection, which included potty training, withholding urination, failing to drink sufficient fluids, rashes, or a “dirty hand.” To rebut any inference that Puckett’s hand caused the 2007 infection, he proffered hearsay testimony that C. E alleged that she had been touched by another child at her daycare.

The trial court excluded the evidence based on relevance and hearsay grounds, noting that Puckett was not accused of touching C. E in 2007 and that the evidence lacked sufficient indicia of reliability required by the Child Hearsay Statute, because C. P’s mother failed to bring the allegation to the attention of the medical staff at the physician’s office. The record supports these findings as to relevance and reliability, and we discern no abuse of the trial court’s discretion.

3. Finally, Puckett contends that the trial court erred by admitting a brief reference in Puckett’s confession to police that he had been sexually assaulted when he was 16. Puckett argues that this statement improperly placed his character at issue by implying that, as a victim of abuse himself, Puckett had a propensity to abuse children. However, Puckett did not object to the evidence when it was offered, nor did he move in limine to prohibit such evidence, and he specifically elicited a second reference to the alleged prior assault. “A defendant will not be allowed to induce an asserted error, sit silently hoping for acquittal, and obtain a new trial when that tactic fails. Induced error is impermissible and furnishes no ground for reversal.”

Nevertheless, Puckett cites Putnam v. State to support his argument that the reference to the prior sexual assault was plain error requiring a reversal despite his waiver:

In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.

Putnam, however, provides no basis for reversal here.

In Putnam, the error was the admission of improper bolstering evidence consisting of (1) testimony from a Department of Family and Children Services (“DFCS”) worker who repeatedly stated that she believed the victim was molested and that Putnam was the perpetrator, and (2) a DFCS letter stating the same that went out with the jury. The State’s case was based primarily on the credibility of the victim’s accusation and the defendant’s denials, and there were other circumstances bringing the molestation allegations into doubt. Thus, the improper bolstering went to the ultimate issue of the case, which invaded the role of the jury.

Here, by contrast, the challenged evidence did not go to the ultimate issue in the case, and Puckett fails to show this Court that the State or the trial court made any argument or instruction urging the improper character inference he articulates for the first time on appeal. Further, even if we were to apply the Putnam rationale here, there was testimony from a third party who witnessed the abuse, as well as confessions by Puckett to his family and police. Thus, the inclusion of the challenged evidence in this case did not seriously affect the fairness, integrity, or public reputation of the judicial proceeding. Accordingly, we discern no reversible error.

Decided June 20, 2011.

Jennifer A. Trieshmann, for appellant.

Lee Darragh, District Attorney, Lindsay H. Burton, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       OCGA § 16-6-4 (a) (1).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       C. E’s biological father and Leila divorced before C. E was born.

       (Punctuation omitted.) Holmes v. State, 275 Ga. 853, 854 (3) (572 SE2d 569) (2002).

       Compare In the Interest of M. G., 239 Ga. App. 787, 790 (521 SE2d 918) (1999) (“Because the grandfather was the first to question the victim and report the alleged molestation, we find the trial court abused its discretion when it refused to allow the defendant to cross-examine him about [his] prior false allegation of molestation.”).

       See OCGA § 24-2-1 (“Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.”); Lockett v. State, 217 Ga. App. 328, 330 (2) (457 SE2d 579) (1995) (“even if the testimony sought to be admitted does relate to the feelings a witness has toward a party, if that particular feeling would have no relevance to the questions being tried by the jury, then such evidence may be excluded in the sound discretion of the trial court”) (physical precedent only).

       (Punctuation omitted.) Williams v. State, 303 Ga. App. 222, 229 (4) (692 SE2d 820) (2010).

       OCGA § 24-3-16 (“A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.”). We note that this Code section has been found unconstitutional to the extent that it allowed for the introduction of the hearsay statements of a child who witnessed the alleged abuse. See Woodard v. State, 269 Ga. 317, 321-323 (3) (496 SE2d 896) (1998).

        See Nelson v. State, 279 Ga. App. 859, 861 (1) (a) (632 SE2d 749) (2006) (“The trial court has broad discretion in determining the admissibility of child hearsay evidence, and we will reverse a trial court’s ruling on the admissibility of statements under OCGA § 24-3-16 only if the trial court abused its discretion.”).

       (Punctuation omitted.) Anthony v. State, 275 Ga. App. 274, 278-279 (5) (620 SE2d 491) (2005).

       231 Ga. App. 190 (498 SE2d 340) (1998) (physical precedent only).

       (Punctuation omitted.) Id. at 193 (3).

       See id. at 193 (2).

       See id. at 194 (3).

       See id. at 193-194 (3).

       Compare Tyler v. State, 266 Ga. App. 221, 223 (2) (596 SE2d 651) (2004) (noting that the State intentionally attempted to elicit improper testimony, and the trial court’s comments exacerbated the error), subsequent related appeal overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 812, n. 1 (642 SE2d 56) (2007).


text:
    A11A0157.
    BADGER v. THE STATE.
    (712 SE2d 582)
   Doyle, Judge.

Following a jury trial, Earnie Bernard Badger was convicted of aggravated assault, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon, and the trial court sentenced him to 20 years, to serve the first 12 in confinement. Badger appeals the denial of his motion for new trial, arguing that he received ineffective assistance of counsel because trial counsel failed to communicate a plea offer, which he would have accepted. We affirm, for reasons that follow.

The record shows that on November 20, 2004, Michael Nelms, Jr., was involved in a fight with Michael Colbert at an apartment complex. Nelms left the complex, but returned later that day and was involved in a second altercation with several individuals, including Badger. During the fight, Nelms was shot in the back and sustained serious injuries.

Kernisha Faust, who observed the altercation, testified at trial that she saw Bobby Martin leave the fight, announcing that he was going to get a gun. Martin went to his car, retrieved something, and put it in his pants. Faust then saw Martin and Badger flee and saw Martin hand Badger a gun and tell Badger to “shoot him.” Less than a minute later, Faust heard a gunshot. Nelms testified, however, that he did not know who shot him, and other witnesses testified that they did not see Badger at the scene or that Badger was present but not involved in the altercation. According to the responding officer, there were 30 to 40 people present when police arrived on the scene.

Following a bifurcated trial, Badger was convicted of aggravated assault, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. The trial court sentenced him to 20 years, to serve the first 12 in confinement, and ordered that Badger, along with his co-defendant (Martin), pay $36,102.38 in restitution to Nelms. Badger filed a motion for new trial, arguing, inter alia, that his trial counsel was ineffective because he failed to communicate a plea offer from the State.

At the hearing on Badger’s motion for new trial, trial counsel testified that after reviewing the discovery in the case and interviewing witnesses, counsel had a “strong belief that there were some falsifications going on by the policeman who interviewed” a particular witness. Trial counsel discussed the evidence with Badger, who consistently insisted that he was not guilty. Approximately one week before trial, the State made a verbal offer of five years. Trial counsel testified that although he could not “really recall a hundred percent,” he “[did not] believe” that he told Badger about the State’s offer. Counsel explained his failure to do so as follows:

[Badger] had strongly told me he would not, under any circumstances, consider pleading guilty. He was not guilty and would not under any circumstances consider a guilty plea. And five years is a long time for something he did not do. And I felt like — I agreed — I felt like that the evidence was certainly so weak that we had a viable chance of winningf,] and I told him that. And I said, you always have a chance of losing, but under no circumstances would he consider a plea bargain. He had told me that early on and continued to tell me that. That five years, I felt like, was just something [the prosecutor] was throwing out there to try to distract me actually because I already — we had already had long discussions about what to do in the case[,] and there was never, ever, any hesitation on Mr. Badger’s part that he would not take a plea bargain. . . . [I]f I had a case where I felt like there was a good chance we were going to lose, I’d have been begging him to take it probably. . . . Because of the situation that he was in with a firearm being used, but all the evidence was so contradictory that I agreed with him that he should not have pled guilty. But as far as communicating the offer, I mean we talked all the time about resolution of the case[,] and any specific resolution would have been unacceptable to him, and he had communicated that to me. . . . [I]f there was a legitimate strong offer out theref, i]t was irrelevant. Mr. Badger was not going to take any plea offer.

Badger also testified at the motion for new trial hearing, stating that he never told trial counsel that he was unwilling to enter a plea. In January 2005, several months before the June 27, 2005 trial, Badger was adjudicated guilty of violating his probation, and the trial court sentenced him to serve five years on the remaining six-and-a-half year probation term he was serving at that time. Badger’s application for discretionary appeal of his probation revocation was denied several months before the trial. Prior to trial, Badger decided that it might be in his best interest to plead guilty to the instant case, and he so informed trial counsel. According to Badger, triad counsel did not communicate the State’s offer to him before the trial, and Badger was not aware of the offer until sentencing, at which time trial counsel told him that “he should have told [Badger] about a plea instead of taking it to trial.” Badger testified at the hearing that “[t]here was not a doubt in [his] mind” that he would have accepted the State’s offer if it had been communicated to him.

After the hearing, the trial court denied Badger’s motion for new trial, rejecting Badger’s argument that he received ineffective assistance of counsel. In the order, the trial court found that “trial counsel’s performance in failing to timely communicate the offer to [Badger] was not reasonable and fell below objective professional standards.” The trial court also concluded, however, “after considering the inferences, evaluating the testimony, and exercising its discretion,” there was not “a reasonable probability that [Badger] would have accepted the offer of a five-year confinement sentence or a similar offer involving confinement.”

In Lloyd v. State, the Supreme Court of Georgia recognized

that the Sixth Amendment guarantees a criminal defendant’s right to competent counsel performing to the standards of the legal profession in deciding whether or not to plead guilty. . . . The plea bargaining process is a critical stage of criminal proceedings where an attorney’s involvement is crucial. . . .

In general, to prevail on a claim that trial counsel was ineffective, a defendant

must demonstrate both that trial counsel’s performance was unprofessional, and that but for counsel’s errors, the outcome of the proceedings would have been different. Where, as here, the defendant demonstrates that counsel’s representation in the plea process fell below an objective standard of reasonableness, the inquiry turns to whether the defendant has demonstrated the required prejudice.

In such a case, “the proper question at the prejudice step is whether [the defendant] demonstrated that, but for counsel’s deficient performance, there is a reasonable probability that he would have accepted the State’s plea offer.” In reviewing a trial court’s decision regarding a claim of ineffective assistance of counsel, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

Here, the trial court clearly considered the evidence in this case, including trial counsel’s testimony that (a) Badger unequivocally stated that he would not accept any plea offer from the State, and (b) the evidence was weak, and did not find Badger’s after-the-fact testimony that he would have accepted the plea offer credible.

We find no error in the trial court’s decision to reject [Badger’s] version of the facts and credit instead the testimony of his counsel. Accordingly, we conclude that [Badger] has not carried his burden of proving that there was a reasonable probability that, but for his trial counsel’s deficient performance, he would have accepted the [S]tate’s plea offer.

Judgment affirmed.

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

Decided June 20, 2011.

Daniels & Rothman, Jeffery A. Rothman, for appellant.

Kenneth W. Mauldin, District Attorney, C. Rebecca Smith, Assistant District Attorney, for appellee.

       OCGA § 16-5-21 (a) (2).

       OCGA § 16-11-106 (b) (1).

       OCGA § 16-11-131 (b).

       Trial counsel also testified that “[i]f Badger says I didn’t [communicate the offer], I probably didn’t.”

       (Emphasis supplied.)

       This is the only issue on appeal.

       The State does not challenge this finding on appeal.

       258 Ga. 645 (373 SE2d 1) (1988).

        Cleveland v. State, 285 Ga. 142, 144 (674 SE2d 289) (2009).

       (Punctuation and footnotes omitted.) Id. at 144-145, citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Cleveland, 285 Ga. at 145.

       (Punctuation omitted.) Hughes v. State, 289 Ga. 98, 100 (3) (709 SE2d 764) (2011). See also Cleveland, 285 Ga. at 146.

       (Footnote omitted.) Chatman v. State, 306 Ga. App. 218, 222 (a) (702 SE2d 51) (2010).