author: Boggs, Judge.

text:
    A13A1487, A13A1488.
    CENTER FOR A SUSTAINABLE COAST, INC. v. TURNER; and vice versa.
    (751 SE2d 555)
   Boggs, Judge.

In this discretionary appeal and cross-appeal, the parties appeal from a superior court order affirming an administrative law judge’s (ALJ) decision affirming a consent order between a property owner, Lance Toland, and the director of the Environmental Protection Division (EPD), Judson Turner. In Case No. A13A1488, the EPD contends in related enumerations of error that the ALJ and the superior court erred by concluding that the Center for a Sustainable Coast, Inc. (“the Center”) had standing to appeal the consent order under OCGA § 12-2-2 (c) (3) (A). In Case No. A13A1487, the Center asserts in related enumerations of error that the ALJ and the superior court erred as a matter of law by affirming the consent order. Based on our conclusion that the Center lacked standing, we dismiss its appeal in Case No. A13A1487 and vacate the superior court’s order affirming the ALJ’s decision on the merits in Case No. A13A1488.

This case concerns the Erosion and Sedimentation Act of 1975, OCGA § 12-7-1 et seq. (“the Act”). The Environmental Protection Division of the Georgia Department of Natural Resources is charged with enforcing violations of the Act. See OCGA §§ 12-7-3 (4) (definition of “director”) and 12-7-12 (a) (director may issue orders to violators of Act). The General Assembly has stated its intent and policy for the Act as follows:

It is found that soil erosion and sediment deposition onto lands and into waters within the watersheds of this state are occurring as a result of widespread failure to apply proper soil erosion and sedimentation control practices in land clearing, soil movement, and construction activities and that such erosion and sediment deposition result in pollution of state waters and damage to domestic, agricultural, recreational, fish and wildlife, and other resource uses. It is therefore declared to be the policy of this state and the intent of this chapter to strengthen and extend the present erosion and sediment control activities and programs of this state and to provide for the establishment and implementation of a state-wide comprehensive soil erosion and sediment control program to conserve and protect the land, water, air, and other resources of this state.

OCGA § 12-7-2.

The Act “established a 25 foot buffer along the banks of all state waters.” OCGA § 12-7-6 (b) (15) (A). Following its receipt of a complaint, the EPD investigated and determined that Toland constructed an approximately 170-foot long bulkhead in a salt-water marsh area within the 25-foot buffer without first requesting a variance pursuant to the Act. See Ga. Comp. R. & Regs. r. 391-3-7-.05 (landowners may apply for a buffer variance under certain circumstances, upon application to EPD).

In four related enumerations of error, the EPD contends that the ALJ erred by concluding that the Center had standing to appeal the consent order. “In reviewing the decision of the superior court affirming the ALJ, we affirm as to evidentiary issues if there was any evidence to support the ALJ’s decision, and conduct a de novo review with respect to claimed errors of law.” Coastal Marshlands Protection Committee v. Center for a Sustainable Coast, 286 Ga. App. 518, 529 (3) (649 SE2d 619) (2007).

The Act provides:

All hearings on and review of contested matters, orders, or permits issued by or filed against the director and all hearings on and review of any other enforcement actions or orders initiated by the director under this chapter shall be provided and conducted in accordance with subsection (c) of Code Section 12-2-2. The hearing and review procedure provided in this Code section is to the exclusion of all other means of hearings or review.

(Emphasis supplied.) OCGA § 12-7-16. And OCGA § 12-2-2 (c) (2) (A) provides:

Any person who is aggrieved or adversely affected by any order or action of the director shall, upon petition to the director within 30 days after the issuance of such order or the taking of such action, have a right to a hearing before an administrative law judge of the Office of State Administrative Hearings assigned under Code Section 50-13-40 and acting in place of the Board of Natural Resources. The hearing before the administrative law judge shall be conducted in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” and the rules and regulations adopted by the board pursuant thereto. . . .

(Emphasis supplied.) A party is “aggrieved or adversely affected” if

the challenged action has caused or will cause them injury in fact and where the injury is to an interest within the zone of interests to be protected or regulated by the statutes that the director is empowered to administer and enforce. In the event the director asserts in response to the petition before the administrative law judge that the petitioner is not aggrieved or adversely affected, the administrative law judge shall take evidence and hear arguments on this issue and thereafter make a ruling on this issue before continuing with the hearing. The burden of going forward with evidence on this issue shall rest with the petitioner.

(Emphasis supplied.) OCGA § 12-2-2 (c) (3) (A).

In addition to asserting that the Center suffered no “injury in fact” and that it failed to establish that its injury was to “an interest within the zone of interests to be protected or regulated,” the EPD contends that the Center’s alleged injury cannot be redressed by a favorable decision. As the Supreme Court of Georgia has recognized, “[i]n the absence of our own authority we frequently have looked to United States Supreme Court precedent concerning Article III standing to resolve issues of standing to bring a claim in Georgia’s courts.” Feminist Women’s Health Center v. Burgess, 282 Ga. 433, 434 (1) (651 SE2d 36) (2007).

In the oft-cited Friends of the Earth v. Laidlaw Environmental Svcs., 528 U. S. 167 (120 SCt 693, 145 LE2d 610) (2000), the Supreme Court held:

[T]o satisfy Article Ill’s standing requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

(Citations omitted.) Id. at 180-181 (II) (A). See also Granite State Outdoor Advertising v. City of Roswell, 283 Ga. 417, 418 (1) (658 SE2d 587) (2008) (noting redressability element of standing in federal jurisprudence). “[A] plaintiff must demonstrate standing separately for each form of relief sought.” Friends of the Earth, supra, 528 U. S. at 185 (II) (A). “[Environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” (Citations and punctuation omitted.) Id. at 183 (II) (A). Finally, “when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” (Citation and punctuation omitted.) Summers v. Earth Island Institute, 555 U. S. 488, 493-494 (II) (129 SCt 1142, 173 LE2d 1) (2009). Stated differently, “[wjhere a petitioner is not subject to the administration decision it challenges, courts are particularly disinclined to find that the requirements of standing are satisfied.” Kerm, Inc. v. Fed. Communications Comm., 353 F3d 57, 59 (II) (D.C. Cir. 2004).

The record shows that the Center asserted in its initial petition that “[t]he Center and its members are and have been aggrieved and adversely affected by the Director’s issuance ... of [the] Consent Order.” Specifically, it contended that

the Director’s decision to issue a Consent Order . . . effectively acts as an after-the-fact variance and allows the Site’s bulkhead and associated fill constructed or placed within the buffer to remain in situ. The bulkhead and associated fill authorized by the Consent Order — after-the-fact — substantially interfere with [t]he Center’s and its members’ use and enjoyment of the area, and cause extensive damage to the surrounding marsh ecosystem and the wildlife and environment in the vicinity of the project. Likewise, the Director’s decision to issue the Consent Order effectively authorizing an after-the-fact variance improperly circumvented the rights of [t]he Center and its members to engage in meaningful notice and comment. The injuries caused by the Director’s decision, including to allow the bulkhead and associated fill, will not be redressed except by an Order by the [ALJ] declaring the Consent Order unlawful.

In its prayer for relief, the Center asked the ALJ to declare the consent order invalid and “find that the Consent Order issued by the Director be amended to require removal of the bulkhead and associated fill from the twenty-five foot buffer and to restore the marsh to its preconstruction condition.”

Following an evidentiary hearing, the ALJ recited the following “credible evidence” to support its conclusion that the Center “established injury in fact for the purpose of standing”:

The Petitioner is a not-for-profit membership corporation which was organized under the laws of the State of Georgia. The Petitioner was founded in 1997 and has approximately seventy (70) members. The Petitioner’s purpose is “to promote the sustainable protection, enhancement, understanding, and appropriate use of the region’s environmental, economic, social, historic, and cultural resources by providing coordinate research, advocacy, training, and professional consultation.” The Petitioner has been funded and continually staffed since its founding in 1997. Members of the Petitioner pay dues in varying amounts. ... In addition to dues, the Petitioner receives contributions from members in amounts as high as $5,000. The Petitioner communicates with its membership by publication of newsletters. The Petitioner engages in educational and advocacy activities through the publication of articles and submission of comments to regulatory authorities. The Petitioner initiates litigation on the basis of decisions made by the Board of Directors by means of e-mail and telephonic communications. . . .
[O]ne of the individual members of the Petitioner association testified as to the injuries he has suffered by the Respondent’s issuance of the Consent Order____Mr. Holland is a founding member of the Petitioner association and remains an active member of the Petitioner. . . . Mr. Holland’s aerial observations of the Property in November, 2010, prompted his filing of a complaint with the Coastal Resources Division of the Georgia Department of Natural Resources. Mr. Holland fishes in Village Creek on a frequent basis and enjoys taking nature photography in the general area of Village Creek. Of significance, Mr. Holland’s use of Village Creek for relaxation, fishing, and enjoyment of scenic beauty has been adversely impacted and diminished by the presence of the bulkhead on the buffer of the property. Mr. Holland is concerned that the presence of the bulkhead on the buffer of the property negatively impacts wildlife including rabbits, raccoons and birds. Further, Mr. Holland is concerned that the presence of the bulkhead on the Property allows the introduction of pollutants into the marsh and opines that its presence has changed the hydrology in the marsh. Mr. Holland does not contend that the bulkhead is visible from Village Creek.
Dr. Joseph Richardson, who is the holder of a Ph.D. in Marine Science and a Professor Emeritus at Savannah State University, testified regarding the negative impact of the continued presence of the bulkhead on sedimentation entering the marsh environment. Dr. Richardson opined that the construction of the bulkhead has destroyed the buffer zone on the Property, removed the vegetative diversity found on the Property’s buffer zone, buries micro-fauna and microbes within the soil of the Property’s buffer zone and created point source pollution directly into the marsh.

The ALJ also concluded that the Center “established injury in fact to the zone of interests protected or regulated by the statutes which the Respondent is empowered to administer and enforce.” Specifically, it noted that the Center “contends that the Consent Order violates the protections afforded by the Act to the twenty-five (25) foot buffer on the Property’ and that it “serves as an ‘after-the-fact’ variance, the terms of which do not comply with the [EPD]’s regulations.” The ALJ did not analyze the redressability of the Center’s claimed injury even though it was briefed by the parties below.

This court reviews questions of law de novo in an appeal from an ALJ decision. See Coastal Marshlands, supra, 286 Ga. App. at 529 (3). In this case, we conclude that the Center lacks standing to appeal based upon its inability to demonstrate redressability. “The element of redressability requires that it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” (Citations and punctuation omitted.) Florida Wildlife Federation v. South Florida Water Mgmt. Dist., 647 F3d 1296, 1305-1306 (II) (B) (11th Cir. 2011).

In this case, the ALJ’s finding of injury in fact rested upon the continued presence of the bulkhead and fill-in materials in the buffer zone. But even if this court, or the ALJ, were to vacate the consent order, the bulkhead and fill-in materials would still exist in the buffer zone. See Florida Wildlife Federation, supra, 647 F3d at 1306 (II) (B). And, as properly asserted by the EPD on appeal, the ALJ did not have authority to require the director of the EPD to include a specific provision in a consent order. See Upper Chattahoochee Riverkeeper v. Forsyth County, 318 Ga. App. 499, 506-507 (4) (734 SE2d 242) (2012) (superior court properly concluded that ALJ exceeded authority by ordering director of EPD to revise permit limits).

Nothing in the Act required the director to order the removal of the bulkhead and fill-in material as part of a negotiated enforcement action. The Act gives the director of the EPD discretion with respect to whether and how to take enforcement action against the landowner. When a violation of the Act occurs, “the director may issue an order directed to such violator or violators.” (Emphasis supplied.) OCGA § 12-7-12 (a). The issuance of this order and its contents are discretionary. “The order . . . may require that land-disturbing activity be stopped until necessary corrective action and mitigation have been taken or may require that necessary corrective action and mitigation be taken within a reasonable time to be prescribed in the order.” (Emphasis supplied.) OCGA § 12-7-12 (a).

We therefore conclude that it is unlikely that the Center’s claimed “injury will be redressed by a favorable decision.” Florida Wildlife Federation, supra, 647 F3d 1306-1307 (II) (B). In so holding, we note that in an analogous circumstance, the Supreme Court of Georgia has concluded: “A citizen does not have judicially cognizable interest in the prosecution or nonprosecution of another and, hence, lacks standing to contest the prosecuting authority’s policies when the citizen is neither prosecuted nor threatened with prosecution.” Scanlon v. State Bar of Ga., 264 Ga. 251, 253 (2) (443 SE2d 830) (1994). The Supreme Court has also refused to find an action for mandamus is warranted when a public officer exercises discretion and fails to seek legal recourse to stop a practice in violation of the Act the officer is charged with enforcing. Bland Farms v. Ga. Dept. of Agriculture, 281 Ga. 192, 194 (637 SE2d 37) (2006). It reasoned:

Decided November 15, 2013.

Jennifer R. Culler, Donald D. J. Stack, for appellant.

Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney General, Margaret K. Eckrote, Senior Assistant Attorney General, John E. Hennelly, Assistant Attorney General, Neis S. D. Peterson, Solicitor-General, for appellee.

An agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all.

(Citation and punctuation omitted.) Id. at 194-195.

Based upon our conclusion that the Center lacked standing, we dismiss its appeal in Case No. A13A1487 and vacate the superior court’s order affirming the ALJ’s decision in Case A13A1488. See Sherman v. City of Atlanta, 293 Ga. 169, 173 (3) (744 SE2d 689) (2013) (dismissing appeal based upon lack of standing).

Judgment vacated in Case No. A18A1488. Appeal dismissed in Case No. A18A1487.

Doyle, P. J., and McFadden, J., concur.

       We note that even though the EPD failed to appeal the portion of the ALJ’s order relating to standing in the superior court, we nonetheless have jurisdiction to consider its cross-appeal. See, e.g., Coastal Marshlands Protection Committee v. Center for a Sustainable Coast, 286 Ga. App. 518, 521 (1) (649 SE2d 619) (2007). See also St. John's Melkite Catholic Church v. Comm. of Revenue, 240 Ga. 733, 734 (242 SE2d 108) (1978) (appellate court may raise standing issue sua sponte).

       This is not a “procedural injury” case. “Where plaintiffs allege injury resulting from violation of a procedural right afforded to them by statute and designed to protect their threatened concrete interest, the courts relax — while not wholly eliminating — the issues of imminence and redressability, but not the issues of injury in fact or causation.” (Citation omitted.) Defenders of Wildlife v. Perciasepe, 714 F3d 1317, 1323 (II) (A) (1) (D.C. Cir. 2013). In this case, the Center has not identified a procedural requirement the EPD violated by agreeing to the consent decree, and the consent order does not fall within those categories of administrative consent orders that require provision of notice and opportunity for comment. See Ga. Comp. R. & Regs. r. 391-1-3-.01 (2).

       This Code provision also provides that “any such order shall become final unless the person or persons named therein request, in writing, a hearing pursuant to Code Section 12-7-6.”


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A13A1528.
    INKAHOLIKS LUXURY TATTOOS GEORGIA, LLC et al. v. PARTON et al.
    (751 SE2d 561)
   ANDREWS, Presiding Judge.

James Parton and Inkaholics, LLC (Parton’s tattoo studio) sued Inkaholiks Luxury Tattoos Georgia, LLC and its owner, Uchechukwu Nwaneri, alleging trade name infringement. The suit alleged that the plaintiffs had protected rights in the name Inkaholics for their tattoo business, which operated in the metro Atlanta area, and that the defendants subsequently infringed on the name and damaged the plaintiffs’ business by using a confusingly similar name, Inkaholiks, to establish a competing tattoo business in the same area. The plaintiffs sought to permanently enjoin the defendants from using the name Inkaholiks, and the award of damages, under three counts based on the Uniform Deceptive Trade Practices Act (UDTPA) (OCGA § 10-1-370 et seq.); the Fair Business Practices Act (FBPA) (OCGA § 10-1-390); and the trademark infringement law at OCGA § 10-1-440 et seq.

The defendants appeal from the trial court’s pre-trial order granting the plaintiffs an interlocutory injunction which, pending final resolution of the case, enjoined the defendants from using the name Inkaholiks. We find under the circumstances of this case that the trial court did not abuse its discretion and affirm to the extent the court granted the interlocutory injunction for the metro Atlanta area in which evidence showed the plaintiffs operated their business. To the extent the court granted the interlocutory injunction beyond the metro Atlanta area in which the plaintiffs’ business operates, we find no basis for the injunction and reverse.

1. Trademarks and trade names are protected from infringement in Georgia by statute and common law. Eckles v. Atlanta Technology Group, 267 Ga. 801 (485 SE2d 22) (1997); Giant Mart Corp. v. Giant Discount Foods, 247 Ga. 775 (279 SE2d 683) (1981). In Count 1 of the complaint, the plaintiffs allege infringement under the UDTPA. The UDTPA provides for injunctive relief to prevent damage caused by a deceptive trade practice, including the use of a confusingly similar trade name which infringes on a protected trade name. Future Professionals v. Darby, 266 Ga. 690 (470 SE2d 644) (1996). Relief may be obtained from the deceptive practice, whether or not the protected trade name was registered, and without proof that the alleged infringer intended to deceive the public by causing confusion. Id.; Eckles, 267 Ga. at 802. In Count 2 of the complaint, the plaintiffs allege infringement under the FBPA. The FBPA protects businesses from unfair or deceptive practices in the conduct of trade or commerce, including passing off goods or services as those of another, or causing actual confusion as to the source, sponsorship, approval, or certification of goods or services, and provides for damages and injunctive relief. OCGA §§ 10-1-393 (b) (1), (2); 10-1-399 (a). Thus, the FBPAbroadly protects against infringement on a protected trade name by use of a confusingly similar name. See Isbell v. Credit Nation Lending Svc., 319 Ga. App. 19, 30 (735 SE2d 46) (2012). Finally, in Count 3 of the complaint, the plaintiffs allege infringement under OCGA § 10-1-440 et seq. Trademarks and trade names registered with the Georgia Secretary of State are protected under OCGA § 10-1-440 et seq. from infringement by use of confusingly similar names, and actions may be brought seeking the award of damages and injunctive relief. Diedrich v. Miller & Meier & Assocs., Inc., 254 Ga. 734, 736 (334 SE2d 308) (1985); Giant Mart, 247 Ga. at 775-777; OCGA §§ 10-1-450; 10-1-451.

To obtain the relief sought on the trade name infringement claim, the initial issue under all three counts asserted by the plaintiffs is whether they had a protected right in the name Inkaholics. Future Professionals, 266 Ga. 690; Eckles, 267 Ga. 801; Giant Mart, 247 Ga. 775. To prove a protected right in the name, the plaintiffs would be required to show: (1) that the name was so original or inherently distinctive that they had the prior exclusive right to use it, or (2) if the name was not original or inherently distinctive, it was a descriptive name in which they were the first to achieve “secondary meaning” in the metro Atlanta area in which the plaintiffs’ business operates. Id. at 776. “A trademark or trade name composed of generic or descriptive words is incapable of exclusive appropriation,” unless it has acquired additional “secondary meaning.” Alexie, Inc. v. Old South Bottle Shop Corp., 179 Ga. App. 190, 191 (345 SE2d 875) (1986). When a business entity’s use of merely descriptive words as a trade name “causes the public to understand that the goods or services of that business entity are designated thereby, then those words do acquire a secondary meaning which is protected under the law.” Eckles, 267 Ga. at 802; Giant Mart, 247 Ga. at 776.

After a hearing on the plaintiffs’ motion for injunctive relief, the trial court granted an interlocutory injunction finding that the plaintiffs presented evidence showing: (1) that the plaintiffs had a legally protected right in the descriptive name Inkaholics (which was registered in Georgia) by evidence tending to show that they were the first to achieve secondary meaning in the name Inkaholics in the metro Atlanta area — and did so before the defendants commenced use of the name Inkaholiks in that area; and (2) that the defendants’ subsequent use of the similar name Inkaholiks in the same area infringed on the plaintiffs’ trade name by causing the tattoo-buying public in the area to confuse the defendants’ services for the plaintiffs’ services.

In support of their petition for injunctive relief, the plaintiffs presented sworn evidence showing the following: The plaintiffs have continuously used the trade name Inkaholics in the metro Atlanta area since August 2008 when they incorporated Inkaholics, LLC, started their tattoo business under that name, and later registered the name in Georgia. Beginning in 2008 and 2009, the plaintiffs advertised Inkaholics as their tattoo business in the metro Atlanta area on radio and television and through community fundraisers. The plaintiffs provided evidence that, pursuant to these efforts and the continuous operation of the plaintiffs’ tattoo business since 2008, members of the tattoo-buying public in the metro Atlanta area, and a well-known tattoo business competitor in the area, have since 2008 come to associate the name Inkaholics with the tattoo services provided by the plaintiffs. The plaintiffs further showed that the defendants first used the trade name Inkaholiks in the metro Atlanta area starting in November 2011 when they incorporated their tattoo business in the name Inkaholiks Luxury Tattoos Georgia, LLC. The defendants subsequently advertised their tattoo business in the metro Atlanta area by radio and other methods using the abbreviated name Inkaholiks — a name similar in appearance and phonetically indistinguishable from the plaintiffs’ name Inkaholics. The plaintiffs also produced evidence showing that, because the defendants’ name Inkaholiks is similar looking and sounding to the plaintiffs’ name Inkaholics, members of the tattoo-buying public have confused the defendants’ services for the plaintiffs’ services. The defendants filed sworn evidence, also considered by the trial court, showing that members of the tattoo-buying public in the metro Atlanta area associate the name Inkaholiks with the tattoo services provided by the defendants.

“[T]he grant or denial of an interlocutory injunction rests in the sound discretion of the trial judge according to the circumstances of each case.” Zant v. Dick, 249 Ga. 799 (294 SE2d 508) (1982). “The purpose for granting interlocutory injunctions is to preserve the status quo, as well as balance the conveniences of the parties, pending a final adjudication of the case.” Grossi Consulting v. Sterling Currency Group, 290 Ga. 386, 388 (722 SE2d 44) (2012). Based on the evidence presented by the plaintiffs showing they had achieved secondary meaning in the name Inkaholics in the metro Atlanta area before the defendants commenced using the similar name Inkaholiks in that area (and evidence of resulting confusion), we cannot find it was an abuse of the trial court’s discretion to grant an interlocutory injunction protecting the plaintiffs’ trade name, pending final adjudication, to the extent the interlocutory injunction was limited to the metro Atlanta area. Multiple Listing Svc. v. Metropolitan Multi-List, 223 Ga. 837, 841-843 (159 SE2d 52) (1968); Bijou Salon & Spa v. Kensington Enterprises, 283 Ga. App. 857, 860 (643 SE2d 531) (2007) (although not controlling, trial court may consider merits of the case in balancing the equities in favor of temporary injunctive relief). The evidence showed that metro Atlanta was the trade area in which the plaintiffs achieved secondary meaning in the name Inkaholics and the right to protection of the name in that area. Accordingly, to the extent the injunction protecting the plaintiffs’ trade name extended beyond the metro Atlanta area, the trial court abused its discretion, and we reverse. We find no merit in the defendants’ contention that the trial court failed to properly balance the equities in granting the injunctive relief.

2. The defendants contend that the trial court erred by finding that their Answer and Defenses were not verified, and therefore the court erroneously failed to consider statements of fact set forth in their Answer and Defenses. The record shows that the defendants’ Answer and Defenses, filed unverified on October 26, 2012, was later verified by sworn verifications dated December 14, 2012, filed a couple of weeks before the court’s February 21, 2013 order granting the interlocutory injunction. Even if the court should have considered the later verified Answer and Defenses, that pleading admits that the defendants first used the trade name Inkaholiks in the metro Atlanta area in 2011, and contains no other statement of fact which would have required denial of the motion for an interlocutory injunction. Any error was harmless. On January 28, 2013, the defendants filed their unverified Amended Answer and Counterclaims, which incorporated and re-alleged the original Answer and Defenses and amended by setting forth Counterclaims. Contrary to the defendants’ contention, the record shows that the Counterclaims filed on January 28, 2013, were not verified.

3. There is no merit to the defendants’ claim that the trial court erred because the interlocutory injunction enjoining the defendants from using the name Inkaholiks fails to maintain the status quo by allowing the defendants to continue their existing use of that name. In a trademark infringement case, the status quo to be preserved by an interlocutory injunction “is not the situation of contested rights, but the last, peaceable, noncontested status of the parties. ... [In other words,] the situation prior to the time the junior user began use of its contested mark.” J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 30:50 (4th ed.).

4. Citing only to allegations in their unverified counterclaims, the defendants contend that, even if the plaintiffs can prove that they achieved secondary meaning in the name Inkaholics in the metro Atlanta area prior to the time that the defendants commenced use of the trade name Inkaholiks in that area, the plaintiffs are still not entitled to an interlocutory injunction because: (1) the defendants own common law trademark rights in the name Inkaholics, which have been continuously in use in interstate commerce outside Georgia since 1997; and (2) the defendants own federally registered marks in the name of “Inkaholics.com,” registered on November 8, 2011, and “Inkaholiks,” registered on January 29, 2013. Based on these allegations, the defendants contend that they have superior rights to use of those marks under the Federal Trademark Act (15 USC § 1051 et seq., also known as the Lanham Act).

In the absence of a verified counterclaim or any sworn facts in the record to establish a factual basis for this argument, we find no error in the trial court’s refusal to deny interlocutory injunctive relief on this basis. But even assuming that these facts could be established, there is no evidence that, when the plaintiffs first used the name Inkaholics in the metro Atlanta area in 2008, they had actual knowledge of the defendants’ prior use of the name Inkaholiks outside of Georgia. In that case, the plaintiffs would be entitled to a “limited area” defense under 15 USC § 1115 (b) which would: (1) allow the plaintiffs to use the name Inkaholics in the metro Atlanta area if evidence showed they continuously used the name and achieved secondary meaning prior to the defendants’ federal registration, and (2) enjoin the defendants from infringing on the plaintiffs’ mark in that area. Burger King of Fla. v. Hoots, 403 F2d 904 (7th Cir. 1968); McCarthy, supra at §§ 26:43 to 26:45. Even considering the allegations in the defendants’ counterclaims, the trial court did not err in granting the interlocutory injunction to the plaintiffs for the metro Atlanta area.

Decided November 15, 2013.

Cannon, Mihill & Winkles, Thomas J. Mihill, Cynthia G. Gunnemann, for appellants.

Daniel L. Parr, Sr., for appellees.

Judgment affirmed in part and reversed in part.

Dillard and McMillian, JJ., concur.

       A “[trademark means any word, name, symbol, or device or any combination thereof adopted and used by a person to identify goodsmadeorsoldbyhim and to distinguish them from goods made or sold by others.” OCGA § 10-1-440 (a) (5).

       Findings of fact made in the trial court’s order granting an interlocutory injunction “are not final and are not conclusive between the parties on the final trial.” Miami Valley Fruit Farm v. Southern Orchard Supply Co., 214 Ga. App. 624, 626 (448 SE2d 482) (1994).

       In determining priority of ownership of a trade name which requires secondary meaning for protection, the majority rule is not who used the trademark or trade name first chronologically; rather,
      the senior user must prove the existence of secondary meaning in its mark at the time and place that the junior user first began use of that mark____If the senior user cannot prove that its mark possessed secondary meaning at the time defendant commenced its use [or commenced use of a mark alleged to be confusingly similar], there can be no infringement, for if there was no secondary meaning, there was no likelihood of confusion when the junior user arrived on the scene.
      J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 16:34 (4th ed.). Moreover, where the mark requires secondary meaning for protection, the senior user’s rights in the mark are restricted to the trade area where the mark achieved secondary meaning. Id. at § 26:25.

       We render no opinion on whether the defendants have properly asserted their counterclaims in this case. See OCGA § 9-11-13; Baitcher v. Louis R. Clerico Assoc., 132 Ga. App. 219, 221 (207 SE2d 698) (1974).


author: Miller, Judge.

text:
    A13A0889.
    LENGSFELD v. THE STATE.
    (751 SE2d 566)
   Miller, Judge.

Following a jury trial, Todd Lengsfeld was convicted of four counts of child molestation (OCGA § 16-6-4 (a) (1)), four counts of enticing a child for indecent purposes (OCGA § 16-6-5 (a)), and five counts of violation of oath by public officer (OCGA § 16-10-1). Lengsfeld appeals from the denial of his motion for new trial, contending that the trial court erred in admitting into evidence statements he made to a Georgia Bureau of Investigation (“GBI”) agent because (1) the statements were protected under Garrity v. New Jersey, 385 U. S. 493 (87 SCt 616, 17 LE2d 562) (1967), and its progeny and (2) he was not advised of his Miranda rights. Lengsfeld also contends that (3) his sentences for enticing a child merged into his convictions and sentences for child molestation, and that (4) his trial counsel was deficient for withdrawing a request to charge on the lesser included offense of sexual battery. For the following reasons, we affirm Lengsfeld’s convictions.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that Lengsfeld met the victim through martial arts classes where he was an instructor. Lengsfeld asked for the victim’s cell phone number and began communicating with her outside of class.

On the night of May 10-11, 2009, Lengsfeld asked the victim to sneak out of her house to meet him. After sneaking out of the house, the victim called Lengsfeld, who picked her up in his unmarked patrol car and drove to a nearby church parking lot. There, he kissed the victim, removed her shirt and rubbed her breasts and thighs. After approximately an hour, Lengsfeld returned the victim to her home.

On the night of May 15-16, 2009, Lengsfeld again asked the victim to sneak out of her house to meet him. He picked her up and took her to the same church parking lot where he kissed the victim and touched her breast and thighs while she was wearing nothing but her underwear. Lengsfeld then removed his shirt, took out his penis and expressed a desire to have sex with the victim.

One night in early June 2009, the victim was staying at her cousin’s house. Lengsfeld asked the victim to sneak out of the house, picked her up in his unmarked patrol car, and drove her to his house. At his house, Lengsfeld removed all of the victim’s clothing and kissed her on the buttocks, stomach, inner thighs, and vagina. Lengsfeld had his penis out and was rubbing it between the victim’s thighs and was brushing it against her vagina. He stopped at the victim’s request.

On June 15, 2009, the victim informed Lengsfeld that she was going to see a movie with her family. Lengsfeld went to the theater and sat with the victim. Following the film, the victim’s mother inquired about Lengsfeld’s presence at the theater and searched the victim’s text messages. When she found out that Lengsfeld and the victim had been exchanging text messages, she told the victim not to have any more contact with Lengsfeld. She also spoke with Lengsfeld, reminded him that the victim was only 15 years old and told him to stay away from the victim.

Later that month, the victim’s father contacted the owner of the jiu jitsu academy to express his concerns about Lengsfeld. He forwarded the text messages from the victim’s phone to the academy owner. The text messages were subsequently extracted from the academy owner’s phone,

Nevertheless, on July 4, 2009, while the victim was at her friend’s house, Lengsfeld sent a text message to the victim that he wanted to see her again. Lengsfeld picked the victim up in his patrol car after she snuck out of her friend’s house. He then took the victim back to his house where he caressed her body while she sat on his lap, and touched her bare breasts and her inner thighs.

In late July, the Newnan Police Department was made aware of the allegations against Lengsfeld. The deputy chief interviewed the victim, in the presence of her parents. Following an internal and criminal investigation, Lengsfeld was indicted on numerous counts, including multiple counts of child molestation, enticing a child for indecent purposes and violation of oath by public officer.

1. In enumerations one and two, Lengsfeld contends that statements he made to a GBI agent were not voluntarily made, and, therefore, should have been suppressed. We disagree.

(a) Lengsfeld first argues that statements he made during the interview with the GBI agent on July 29, 2009 were protected under Garrity, supra, because he believed that he would be terminated from his job as a police officer if he refused to speak with the GBI agent.

“In reviewing a trial court’s determination regarding whether a statement is voluntary, we defer to the trial court’s findings of fact unless clearly erroneous, but we review de novo the trial court’s application of the law to [the] undisputed facts.” State v. Aiken, 282 Ga. 132, 136 (2), n. 21 (646 SE2d 222) (2007). In Garrity, the United States Supreme Court held that statements obtained under the threat of removal from office or government employment cannot be used in a subsequent criminal investigation. Garrity, supra, 385 U. S. at 497-498. In applying Garrity, Georgia courts have employed a totality-of-the-circumstances test to determine whether statements made by a public employee during an investigation into his activities are voluntary. See Aiken, supra, 282 Ga. at 135 (2); State v. Stanfield, 290 Ga. App. 62, 63 (2) (658 SE2d 837) (2008).

In applying that test,

[f] actors that a court may consider include . . . whether the State actor made an overt threat to the defendant of the loss of his job if he did not speak with investigators or whether a statute, rule, or ordinance of which the defendant was aware provided that the defendant would lose his job for failing to answer questions. If no express threat is present, the court may examine whether the defendant subjectively believed that he could lose his job for failing to cooperate and whether, if so, that belief was reasonable given the State action involved. In determining whether the defendant’s belief was objectively reasonable, the court may examine whether the defendant was aware of any statutes, ordinances, manuals, or policies that required cooperation and provided generally, without specifying a penalty, that an employee could be subject to discipline for failing to cooperate. The court may also consider whether the investigator implicitly communicated any threat of dismissal either in written or oral form; whether, before the interrogation began, the defendant was told he was free to leave at any time; and whether the defendant was told he had the right to have a lawyer present. Atrial court, of course, is free to consider any other factor that it determines is relevant to the determination of voluntariness.

(Footnotes omitted.) Aiken, supra, 282 Ga. at 135-136 (2).

So viewed, the record shows that on July 28,2009, Lengsfeld met with the deputy chief of the Newnan Police Department as part of an internal investigation into the allegations against Lengsfeld. During this conversation, the deputy chief informed Lengsfeld of his Garrity rights and that the resulting conversation was protected under Garrity. He then asked Lengsfeld to report to the station the following day. The deputy chief also met with the victim and questioned her about her relationship with Lengsfeld. Based on this conversation, the deputy chief developed probable cause regarding the victim’s allegations of sexual misconduct and determined that a criminal investigation was needed. Chief D.L. Meadows then prepared a letter informing Lengsfeld that he was being put on administrative leave with pay pending the GBI’s completion of a criminal investigation.

On the morning of July 29, 2009, Lengsfeld arrived at the police station to take a polygraph test as part of the internal investigation. Lengsfeld drove his state-issued police car to the station. Upon arrival, Lengsfeld was informed that the internal investigation had concluded and, as a result, he was being placed on administrative leave. Lengsfeld then signed the letter prepared by Chief Meadows, which acknowledged this decision and also informed him that the GBI would be conducting a criminal investigation into the matter.

After signing the letter, Lengsfeld was asked by a GBI agent if he wanted to take the scheduled polygraph test. Lengsfeld declined to take the test, because the deputy chief and the GBI agent told him that it would not be covered under Garrity, and an attorney he had spoken to the night before had advised him not to take the polygraph under those circumstances. Nevertheless, Lengsfeld agreed to an interview with the GBI agent, even though the agent told Lengsfeld that he was conducting a criminal investigation.

During the interview, Lengsfeld admitted that he had flirted with the victim, spoken with her on the telephone, sent her text messages, driven her to his home around midnight on two occasions, and transported her to various locations in Coweta County late at night. Lengsfeld also admitted that he had been to the victim’s house. When the agent asked Lengsfeld what he did at the victim’s house, Lengsfeld asked the agent if he needed an attorney. The GBI agent advised Lengsfeld that the interview would end if he felt he needed an attorney, whereupon Lengsfeld concluded the interview and left the room. Lengsfeld then returned to his supervisor’s office and turned over his badge, gun, and car.

Lengsfeld subsequently moved to suppress the statements he made to the GBI agent. The trial court conducted an evidentiary hearing to determine whether those statements were made in violation of Garrity and Miranda. Following the hearing, the trial court denied Lengsfeld’s motion to suppress, finding that the evidence clearly showed that Lengsfeld was not in custody for Miranda purposes. The trial court also found that Lengsfeld knew his interview with the GBI agent was not protected under Garrity because he refused to take the polygraph test after discussing the differences between Garrity and non-Garrity situations with an attorney. The trial court further found that Lengsfeld’s contention that he was compelled to cooperate with the GBI agent was incredible under the circumstances, considering his 11 years on the police force and the fact that he had made approximately 80 or more arrests.

Applying the Aiken test, the facts support the trial court’s determination that the statements should not be suppressed under Garrity. Notably, there was no evidence that the State coerced Lengsfeld to speak with the GBI agent. Lengsfeld contends that Chief Meadows encouraged him to speak to the GBI agent and that this amounted to coercion. Such encouragement, however, does not rise to the level of coercion. Moreover, even assuming arguendo that Chief Meadows ordered Lengsfeld to speak to the GBI agent, a direct order to speak to an investigator does not, by itself, show coercion unless that order is coupled with the threat of termination for failing to follow such order. Aiken, supra, 282 Ga. at 137 (3). Here, Chief Meadows’s letter, while encouraging Lengsfeld to cooperate with the GBI’s criminal investigation, made no threat, either implicit or explicit, that Lengsfeld would suffer a consequence for declining to do so. Additionally, the deputy chief testified that he would not have considered any refusal by Lengsfeld to speak with the GBI agent as an act of insubordination.

Since no express threat was made, we look to whether Lengsfeld hada reasonable subj ective belief that he would lose his j ob for failing to cooperate. Lengsfeld suggests that he was punished for failing to cooperate when he was placed on administrative leave following the conclusion of the GBI interview. The record shows, however, that before he agreed to speak with the GBI agent, Lengsfeld had already been made aware that he was going to be placed on administrative leave. Additionally, Lengsfeld was asked whether he would be willing to take a polygraph test given by the GBI agent, and his refusal was honored. Consequently, the chief’s decision to place Lengsfeld on administrative leave clearly was not a punishment for his failure to cooperate with the GBI investigation.

Next, Lengsfeld contends that departmental policy required him to cooperate with the GBI agent. This argument is unavailing and is not supported by the evidence. The policy relied upon by Lengsfeld pertinently provides that “Employees are to cooperate with all internal investigations by answering questions, responding to lawful orders, presenting materials, and making statements.” (Emphasis supplied.) The departmental policy explicitly states that it is limited to internal investigations, while the interview in this case was conducted as part of a criminal investigation. Lengsfeld’s claim that he was unaware that the GBI agent was conducting a criminal investigation, as opposed to an internal investigation, is belied by the record which shows that, before he met with the agent, Lengsfeld acknowledged that the GBI would be conducting a criminal investigation. Moreover, prior to starting the interview, the GBI agent reiterated that the interview was being conducted as part of a criminal investigation. To the extent Lengsfeld claims not to have known the difference between internal and criminal investigations, this assertion strains credulity in light of his 11 years of experience as a police investigator.

Additionally, although Georgia courts have found compulsion of the defendant’s statements on the basis of a departmental policy, those cases are distinguishable from the instant case. First, the policy at issue here differs from the policies in State v. Thompson, 288 Ga. 165, 167 (702 SE2d 198) (2010) or State v. Stanfield, supra, 290 Ga. App. at 64-65 (2), because the policy in this case does not provide that failure to cooperate with an investigation would result in termination. While Aiken did not involve a regulation expressly providing that an employee could face dismissal for failing to cooperate with an investigation, the defendant in that case was also presented with a form that provided that he could be fired if he interfered with the investigation in any manner. Aiken, supra, 282 Ga. at 137. In this case, Lengsfeld was presented with no such form or letter threatening termination. As a result, the departmental policy in this case could not have reasonably been interpreted as threatening termination for failing to cooperate with a criminal investigation.

Lengsfeld further contends that he was coerced into the interview because he was not free to leave. This claim is also without merit. In contrast with Thompson, supra, 288 Ga. at 169, where the defendant was expressly informed that he was not permitted to leave the scene, Lengsfeld was free to leave at any time. At the time of the interview, Lengsfeld was neither handcuffed, physically restrained, nor placed under arrest. Additionally, the GBI interview ended at Lengsfeld’s request based upon his desire to consult an attorney. Although Lengsfeld argues that he was without a vehicle and, therefore, was confined, the record shows that his state-issued vehicle had not yet been confiscated when the interview started; his vehicle was not confiscated until after he terminated the interview; and he was informed in advance of the interview that he was required to turn in all government property as part of his administrative leave. Additionally, nothing prevented Lengsfeld from leaving the police department by simply walking out. As a result, there is no evidence that he was prevented from leaving.

Considering all of these circumstances, the trial court correctly ruled that Lengsfeld’s statements were not required to be suppressed under Garrity.

(b) Lengsfeld also contends that the statements he gave during the GBI interview should have been suppressed because he was not given Miranda warnings. Again, we disagree.

Miranda warnings are required when a person is interviewed by an investigating officer while in custody. Phillips v. State, 285 Ga. 213, 215 (2) (675 SE2d 1) (2009). For purposes oí Miranda, a person is in custody if he has been formally arrested or restrained to the degree associated with a formal arrest. Waters v. State, 306 Ga. App. 114, 116 (1) (701 SE2d 550) (2010). A determination of whether a person was in custody at the time of an interview “involves an examination of the circumstances surrounding the questioning to determine whether a reasonable person would have felt at liberty to terminate the interrogation and leave.” (Citation and punctuation omitted.) Vaughn v. State, 282 Ga. 99, 102 (4) (646 SE2d 212) (2007). “Where an accused is neither in custody nor so restrained as to equate to a formal arrest, any statements made to an investigating officer are made under noncustodial circumstances and Miranda warnings are not required.” (Punctuation omitted.) Bolden v. State, 278 Ga. 459, 463 (3) (604 SE2d 133) (2004).

As set forth above, the record in this case shows that Lengsfeld voluntarily agreed to meet with the GBI investigator and that he would have suffered no repercussions for refusing to do so. The evidence also shows that Lengsfeld was not handcuffed or physically restrained in any way, and the interview concluded when Lengsfeld requested an attorney. There is no evidence that the GBI agent gave any indication that Lengsfeld was not free to leave. Although Lengsfeld contends that he subjectively believed that he was in custody, his subjective view is not dispositive of the issue. See State v. Folsom, 285 Ga. 11, 13 (1) (673 SE2d 210) (2009). Rather, we must determine whether, under the totality of the circumstances, a reasonable person in Lengsfeld’s position would not have felt restrained to a degree associated with a formal arrest. In this case, we agree with the trial court that Lengsfeld was not in custody when he made his statement. Therefore, Miranda warnings were not required.

2. Lengsfeld contends that his sentences for enticing a child for indecent purposes must be vacated because they merged into his convictions and sentences for child molestation. We disagree.

“The doctrine of merger precludes the imposition of multiple punishments when the same conduct establishes the commission of more than one crime. Whether offenses merge is a legal question, which we review de novo.” (Citations and punctuation omitted.) Louisyr v. State, 307 Ga. App. 724, 730 (2) (706 SE2d 114) (2011).

“Offenses may merge either as a matter of law or as a matter of fact.” McMillian v. State, 263 Ga. App. 782, 786 (4) (589 SE2d 335) (2003). The offenses of child molestation and enticing a child for indecent purposes are distinct and separate offenses which are not included within each other as a matter of law, since each has an element not necessary to prove the other. See Leon v. State, 237 Ga. App. 99, 107 (5) (513 SE2d 227) (1999); see also OCGA §§ 16-6-4 (a) (1); 16-6-5 (a). Moreover, these offenses may not merge as a matter of fact because they usually occur sequentially, i.e., the enticement offense is completed before the child molestation act occurs. See Leon, supra, 237 Ga. App. at 108 (5); see also Jackson v. State, 274 Ga. App. 26, 28 (1) (c) (619 SE2d 294) (2005) (“generally^ ] enticement is completed before child molestation occurs”); see also Yates v. State, 298 Ga. App. 727, 730 (3) (681 SE2d 190) (2009) (“where the crimes charged are based on more than one separate act or transaction, no merger is required even for charges of the same crime”).

Here, Lengsfeld was charged with four counts of enticing a child for indecent purposes (Counts 5,8,12, and 16) andfour counts of child molestation (Counts 2, 6, 9, and 13) based on his actions on four separate occasions between May and July 2009. As set forth above, the evidence shows that, on each of these evenings, Lengsfeld encouraged the victim to sneak out of her house. Then, he picked her up, drove her to a secluded destination, and proceeded to touch her in a sexual manner. On each of these four occasions, the evidence shows that the charged offenses of enticing a child and child molestation did not merge as a matter of fact because Lengsfeld completed the offense of enticing a child for indecent purposes before he committed the charged acts of child molestation. See Leon, supra, 237 Ga. App. at 108 (5) (defendant’s convictions did not merge where he solicited victim by telling her to go to his bedroom, before he committed child molestation by fondling victim and causing her to touch his penis). Accordingly, the trial court did not err in failing to merge Lengsfeld’s convictions for enticing a child into his convictions for child molestation.

3. Finally, Lengsfeld contends that trial counsel rendered ineffective assistance by withdrawing a request to charge on the lesser offense of sexual battery. We do not agree.

To establish ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), a criminal defendant bears the burden of showing that counsel’s performance was deficient and that the deficient performance so prejudiced [the] defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. . . . The trial court’s determination with respect to ineffective assistance of counsel will be affirmed unless its findings are clearly erroneous.

(Citations and punctuation omitted.) Robinson v. State, 312 Ga. App. 736, 742 (3) (719 SE2d 601) (2011).

The offense of child molestation requires a showing that a person committed 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 offense of sexual battery, in contrast, requires only that a person intentionally make physical contact with the intimate parts of the body, including the buttocks, of another person without the consent of that person. Sexual battery may be a lesser included offense of child molestation, but there is no error in failing to give the charge if the state’s evidence establishes all the elements of an offense, and there is no evidence raising the lesser offense.

(Punctuation and footnote omitted.) Hilliard v. State, 298 Ga. App. 473, 475 (2) (680 SE2d 541) (2009). Here, the evidence showed that in each instance which formed the basis of the four child molestation charges against him, Lengsfeld touched or kissed the victim on the breasts, thighs, buttocks and/or vagina, while she was nude or partially nude. On two occasions, Lengsfeld exposed himself to the victim, and on one occasion he expressed a desire to have sex with her. In each instance, the evidence established all of the elements of child molestation. See Gibbs v. State, 256 Ga. App. 559, 559-560 (568 SE2d 850) (2002) (evidence that defendant touched victim’s breasts and vaginal area sufficient to support conviction for child molestation); Inman v. State, 295 Ga. App. 461, 465 (2) (671 SE2d 921) (2009) (evidence that defendant exposed himself to victim, fondled her chest and vaginal area and attempted to have intercourse with her supported his child molestation conviction).

Since the evidence established all of the elements of child molestation, the trial court would have been authorized to refuse to charge on sexual battery, even if trial counsel had requested that charge. See Goss v. State, 305 Ga. App. 497, 501 (2) (c) (699 SE2d 819) (2010). Moreover, even if the charge had been requested by trial counsel and given by the trial court, given the trial evidence, it is highly unlikely that the jury would have concluded that Lengsfeld inappropriately touched the victim without doing so for sexual gratification, and therefore, it is highly probable that the failure to give this charge did not contribute to the verdict. See id. Accordingly, Lengsfeld cannot show that trial counsel was ineffective for failing to request a charge on sexual battery.

Decided November 18, 2013

Brian Steel, for appellant.

Peter J. Skandalakis, District Attorney, Robert N. Peterkin, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

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

       The victim was bom October 23, 1993 and was 15 years old in the spring of 2009.

       The letter provides:
      During the course of investigating a complaint against you for improper contact with [a] 15 year old female, information was obtained that has led us to ask the Georgia Bureau of Investigation to conduct a criminal investigation.
      This will serve [as] notice that you are placed on administrative leave with pay. This leave will continue until the Georgia Bureau of Investigation has completed an investigation into the complaint.
      To [e]nsure the integrity of the investigation, you will not contact the 15 year old female, or any witnesses associated with the investigation. You should not go to any City or County work site without the permission of Chief Meadows, or [the deputy chief]. You are required to turn in all city and county property during this leave.
      If you have any questions [in] reference [to] this investigation, you will need to contact Chief Meadows or [the deputy chief].
      I encourage you to cooperate fully with this investigation so that we may resolve this matter as quickly as possible.

       Lengsfeld testified that he did not recall even reading the policy.

       A person commits the offense of child molestation when such person 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[.]” OCGA § 16-6-4 (a) (1). “A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” OCGA § 16-6-5 (a). Although Lengsfeld contends that indecent acts are an essential element of both statutes, the State was not required to prove that an indecent act occurred to obtain a conviction on the four counts of enticing a child. See Morris v. State, 179 Ga. App. 228 (1) (345 SE2d 686) (1986) (“It is not required that the [alleged] lewd act be accomplished or even attempted, merely that it was intended as motivation for the enticement.”) (punctuation omitted); Lasseter v. State, 197 Ga. App. 498, 499 (1) (399 SE2d 85) (1990) (“[A] conviction under OCGA § 16-6-5 need not be based upon evidence that an act of indecency or child molestation was accomplished or even attempted[.]”).

       Count 5 charged Lengsfeld with soliciting, enticing and taking the victim to his house for the purpose of indecent acts on or about June 6,2009, whereas Count 2 charged Lengsfeld with committing an act of sodomy on June 6 by licking the victim’s vagina. Count 8 charged Lengsfeld with soliciting, enticing and taking the victim to a church parking lot on or about May 11,2009, whereas Count 6 charged him with kissing the victim and rubbing her inner thighs on May 11 with the intent to arose and satisfy his sexual desires. Count 12 charged Lengsfeld with soliciting, enticing and taking the victim to a church parking lot on or about May 16, 2009, whereas Count 9 charged him with kissing the victim and rubbing her inner thighs on May 16. Count 16 charged Lengsfeld with soliciting, enticing and taking the victim to his residence on or about July 5,2009, whereas Count 13 charged him with satisfying his sexual desires on July 5 by kissing the victim while they lay together partially nude.


text:
    A13A1135.
    WEEKS v. WEEKS.
    (751 SE2d 575)
   Miller, Judge.

Michelle Weeks (the mother) appeals from the trial court’s order of December 4,2012, holding her in contempt of the trial court’s order of November 8,2010 setting out the custody and visitation provisions for her son, C. J. W.

“[A] trial court has broad discretion to determine if a party is in contempt of its order, and the exercise of that discretion will not be reversed on appeal unless grossly abused.” (Citation omitted.) Hunter v. Hunter, 289 Ga. 9, 11 (4) (709 SE2d 263) (2011).

Michelle Weeks and Clark Weeks (the father) were divorced by final judgment and decree on January 24, 2008. They were granted joint legal custody of their son, C. J. W, born July 25, 2005, with the mother maintaining physical custody. At the time of the divorce, the mother was living in Colorado. A visitation schedule was established, providing for C. J. W.’s visitation in Atlanta with the father on a regular monthly schedule. By order of October 10, 2008, the mother was held in contempt of the January 24, 2008 divorce decree for failing to allow the father’s visitation with C. J. W, and she was ordered to pay the father’s attorney fees.

On January 25, 2010, the father filed a Petition for Modification of Custody and Child Support. By order of June 9,2010, in connection with the father’s fifth post-divorce action against the mother for contempt, the trial court again found the mother in contempt for failing to allow the father’s visitation with C. J. W. since January 2010. Further, in that order, the trial court awarded temporary sole physical custody of C. J. W. to the father. Following receipt of the report from the guardian ad litem in this case, the trial court subsequently modified its June 9, 2010 order by rescinding that portion which granted temporary custody to the father and reinstating custody in the mother. Nonetheless, the trial court again found the mother in contempt for failing to deliver C. J. W. to the physical custody of the father, as ordered on June 9, 2010. Accordingly, the trial court ordered the mother jailed until receipt of an affidavit guaranteeing supervised visitation by the father with the child.

By Final Order of November 8, 2010, the trial court, having considered the report of the guardian ad litem and the evidence presented by the parties, found that continued custody by the mother was in the child’s best interest and ordered visitation by the father in Colorado, supervised by services approved by Colorado courts. That order was not appealed.

On August 2, 2012, the father filed the application for contempt citation which is at issue in this case. In December 2012, the trial court again found the mother in contempt of the November 8, 2010 order for denying the father his visitation in August, October, and November 2012 and for blocking regular telephoné visitation by the father with C. J. W. The trial court found that requiring supervised visitation was hampering the father’s relationship with C. J. W. and modified the Parenting Plan by deleting the requirement of supervision. The trial court also ordered the mother to pay the father’s attorney fees and to reimburse him for his August travel expenses to Colorado. Finally, the trial court also scheduled a compliance hearing for January 31, 2013, “[b]ecause there have been such extensive problems with compliance with the Court’s orders in the past.”

The mother filed her notice of appeal from the December 4, 2012 contempt order prior to the compliance hearing. After the compliance hearing, the trial court entered an order changing physical custody to the father.

1. In her first enumeration, the mother argues that it was error for the trial court to change custody from her to the father following the January 31, 2013 compliance hearing.

The March 20, 2013 order following the January 31, 2013 compliance hearing was entered subsequent to the mother’s notice of appeal, which was filed on December 4, 2012. Therefore, the March 20, 2013 order cannot be enumerated as error in this appeal. Bloom field v. Bloomfield, 282 Ga. 108, 112 (5) (646 SE2d 207) (2007); Long v. Long, 303 Ga. App. 215, 217, n. 2 (692 SE2d 811) (2010).

2. The mother contends that the trial court erred in changing visitation from supervised in Colorado to unsupervised in Georgia because she was not put on notice of the relief sought and the trial court was not authorized to make that change in a contempt hearing when there was insufficient evidence to support it. We disagree.

As acknowledged by the mother, “[u]nder OCGA § 19-9-3 (b), the trial court is expressly authorized to modify visitation rights, on the motion of any party or on the motion of the judge, during a contempt proceeding.” (Citation omitted.) Cross v. Ivester, 315 Ga. App. 760, 766(2) (728 SE2d 299) (2012). “Although custody may not be changed in a contempt proceeding, we have long held that [OCGA § 19-9-3 (b)] allows the modification of visitation rights, even on the court’s own motion.” (Citations omitted; emphasis in original.) Horn v. Shepard, 292 Ga. 14, 18-19 (6) (732 SE2d 427) (2012).

Regarding her claim that she was entitled to notice and time to prepare an adequate response, such is not required by OCGA § 19-9-3 (b), and the mother cites no authority providing otherwise. Cross, supra, 315 Ga. App. at 767 (2) (i).

As set out above, there was more than sufficient evidence to indicate that the mother was refusing to allow visitation, even supervised, as provided in the trial court’s previous orders and that there was adequate reason to change the conditions of visitation. Gildar v. Gildar, 309 Ga. App. 730, 731-732 (710 SE2d 913) (2011) (upon hearing evidence on mother’s petition for contempt against father, trial court denied petition, but changed conditions of mother’s visitation from supervised to unsupervised).

3. The mother contends that it was error to award attorney fees when there was no evidence of the fees incurred or the reasonableness of the amount charged. We are constrained to agree.

OCGA § 19-6-2 (a) provides that attorney fees in a contempt of court action arising from child custody and visitation rights provisions of a divorce decree are “[wjithin the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney’s fees, if any, to be allowed against either party[.]”

We have held that a trial court may award or decline to award attorney fees sought under OCGA § 19-6-2 (a) (1) based on evidence of the financial circumstances of the parties presented at trial and based on the judge’s ability to place a value on the legal service rendered by an attorney....

(Citations and punctuation omitted.) Horn, supra, 292 Ga. at 19 (9). See also Johnson v. Johnson, 284 Ga. 366, 368 (3) (667 SE2d 350) (2008); In re Serpentfoot, 285 Ga. App. 325, 329 (4) (646 SE2d 267) (2007).

In its order of December 4, 2012, the trial court ordered the mother to pay the father’s attorney fees of $3,000. During the hearing, the father’s attorney stated that “what we’re asking for . . . [is] $5,000 in attorney fees. . . .” There is nothing else in the record or transcript regarding how these fees were calculated. Because the trial court’s judgment does not specify the statutory basis for the fees and there was no testimony regarding the reasonableness of the fees, the fee award must be vacated. In re Serpentfoot, supra, 285 Ga. App. at 329 (4).

Therefore, we vacate that portion of the judgment awarding the father $3,000 in attorney fees and remand the case to the trial court to hold an evidentiary hearing on the amount of the fees, followed by the entry of a judgment in accordance with this opinion.

4. Finally, the mother appeals the trial court’s denial of her request for supersedeas pursuant to OCGA § 5-6-13 (a).

OCGA § 5-6-13 (a) states:

A judge of any trial court or tribunal having the power to adjudge and punish for contempt shall grant to any person convicted of or adjudged to be in contempt of court a supersedeas upon application . . . , where the person also submits . . . written notice that he intends to seek review of the conviction or adjudication of contempt. . . .

(Emphasis supplied.)

Decided November 18, 2013.

Altman & Schneider, Jessie R. Altman, for appellant.

McCurdy & Candler, Rebecca A. Hoelting, Jean M. Kutner, for appellee.

Following the trial court’s entry of its order of December 4, the mother filed her request pursuant to OCGA § 5-6-13 (a), which the trial court denied by its order of December 19, 2012. The trial court found that “removing of the visitation provision [regarding supervision] was a child custody issue.” The trial court denied the request pursuant to OCGA § 5-6-34 (e). Thereafter, the mother filed an emergency motion for supersedeas in this Court pursuant to Court of Appeals Rule 40 (b), which was also denied.

In this case, despite the language of the mother’s request for supersedeas, she appeals only the trial court’s remedy, not its finding of contempt. Since the mother is not challenging the finding of contempt, her challenge to the denial of supersedeas is rendered moot.

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

Barnes, P. J., and Ray, J., concur.

       She was also ordered incarcerated for 30 days or to seek counseling.

       OCGA § 19-9-3 (b) provides:
      In any case in which a judgment awarding the custody of a child has been entered, on the motion of any party or on the motion of the judge, that portion of the judgment effecting visitation rights between the parties and their child or parenting time may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the child, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment. However, this subsection shall not limit or restrict the power of the judge to enter a judgment relating to the custody of a child in any new proceeding based upon a showing of a change in any material conditions or circumstances of a party or the child. A military parent’s absences caused by the performance of his or her deployments, or the potential for future deployments, shall not be the sole factor considered in supporting a claim of any change in material conditions or circumstances of either party or the child; provided, however, that the court may consider evidence of the effect of a deployment in assessing a claim of any change in material conditions or circumstances of either party or the child.

       OCGA § 5-6-34 (a) (11), effective January 1,2008, provides that “[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgments or orders” are directly appealable. Subsection (e) provides that “[wjhere an appeal is taken pursuant to this Code section for a judgment or order granting nonmonetary relief in a child custody case, such judgment or order shall stand until reversed or modified by the reviewing court unless the trial court states otherwise in its judgment.”

       “A case is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights [.]” (Citation and punctuation omitted; emphasis in original.) Scarbrough Group v. Worley, 290 Ga. 234, 236 (719 SE2d 430) (2011).


author: Branch, Judge.

text:
    A13A1293.
    THE STATE v. PRUIETT.
    (751 SE2d 579)
   Branch, Judge.

Shortly after Debra Pruiett pled guilty to possessing an unspecified amount of Xanax on a particular day, she was charged with four counts of possessing drugs, including another unspecified amount of Xanax, on that same day. Pruiett filed a double jeopardy plea in bar, which the trial court granted. We affirm the grant of the bar as to the second charge for possession of Xanax, but reverse as to the charges for possession of the remaining three drugs named in the second accusation.

On appeal from the grant or denial of a double jeopardy plea in bar, we review the trial court’s oral and written rulings as a whole to determine whether the trial court’s findings support its conclusion. Where the evidence is uncontroverted and witness credibility is not an issue, our review of the trial court’s application of the law to the undisputed facts is de novo.

(Footnote omitted.) Etienne v. State, 298 Ga. App. 149, 150 (679 SE2d 375) (2009).

The State did not introduce any evidence at the hearing on Pruiett’s plea; accordingly, the evidence introduced by Pruiett at that hearing was uncontroverted. On July 30, 2010, a police officer from Trion, Georgia received information that Pruiett was going to be delivering some methamphetamine at a specific location in the Trion area. When Pruiett appeared at the appointed place, the officer searched Pruiett’s car and found an unspecified quantity of one-milligram pills of Xanax, a controlled substance, inside. The officer arrested Pruiett for possession of the drug without a prescription. At the time of her arrest, Pruiett told the officer that she had more of the drug at her house. While Pruiett was on her way to the county jail, the arresting officer called a Chattooga County narcotics investigator, who interviewed Pruiett at the jail. Pruiett told the investigator that she had obtained the pills from her sister and that she kept them at her home. The investigator obtained and executed a warrant to search Pruiett’s house, where the investigator found, among other things, a spoon and baggie bearing methamphetamine residue, six two-milligram alprazolam tablets, one-and-a-half clonazepam tablets, and a bag of marijuana. During the search, Pruiett’s live-in companion, Carlton Day, arrived home from work. He was also arrested.

On the same day that the Xanax was found in Pruiett’s car and in her home, the police officer charged Pruiett with possession of alprazolam, and the narcotics investigator charged her with possession of methamphetamine and unspecified Schedule IV controlled substances. On October 26, 2010, Pruiett was formally accused of possessing an unspecified amount of alprazolam “on the 30th day of July, 2010,” an accusation to which she pled guilty on February 14, 2011. On March 1, 2011, approximately two weeks after Pruiett’s plea Pruiett and Day were both formally accused of possessing unspecified amounts of methamphetamine, alprazolam, and clonazepam, as well as less than one ounce of marijuana, “on the 30th day of July, 2010.” The second accusation against Pruiett did not distinguish the alprazolam discovered in her home from that found in her car and at issue in the first accusation (to which she had already pled guilty). On August 5,2011, Pruiett filed a double jeopardy plea in bar under OCGA §§ 16-1-7 and 16-1-8, seeking to dismiss all four counts of the second accusation. Pruiett’s plea in bar was heard on August 22, 2012. On February 4, 2013, the trial court granted Pruiett’s plea in bar.

1. On appeal, the State argues that the trial court erred when it granted Pruiett’s plea in bar under OCGA §§ 16-1-7 and 16-1-8. We agree in part.

The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The Georgia Constitution also contains a double jeopardy clause which provides that “no person shall be put in jeopardy of life or liberty more than once for the same offense.” Ga. Const., 1983, Art. I, Sec. I, Par. XVIII. Further, OCGA §§ 16-1-6,16-1-7, and 16-1-8 also provide limitations on multiple prosecutions, convictions, and punishments for the same criminal conduct.

(Citation omitted.) Nolen v. State, 218 Ga. App. 819, 820 (463 SE2d 504) (1995).

OCGA § 16-1-7 provides in relevant part:

(a) When 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) [o]ne crime is included in the other; or (2) [t]he 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.
(b) If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution

(Emphasis supplied.) OCGA § 16-1-8 provides in relevant part:

(a) A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution . . . [Resulted in either a conviction or an acquittal. . . .
(b) A prosecution is barred if the accused was formerly prosecuted for a different crime or for the same crime based upon different facts, ¿/such former prosecution:... [Resulted in either a conviction or an acquittal and the subsequent prosecution [i] is for a crime of which the accused could have been convicted on the former prosecution, [ii] is for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge), or [Hi] is for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution or unless the crime was not consummated when the former trial began.

(Emphasis supplied.)

OCGA §§ 16-1-7 (a) and 16-1-8 (a) codify the principle of “substantive double jeopardy” in that they preclude multiple convictions or prosecutions “for crimes arising from the same criminal conduct.” (Citation omitted.) Teal v. State, 203 Ga. App. 440, 441-442 (1), (2) (417 SE2d 666) (1992). By contrast, and as the Supreme Court of Georgia has noted, OCGA § 16-1-8 (b) “embraces the concept of res judicata and is not constitutional double jeopardy, but is protection against subsequent prosecution where the defendant could have been, and under ... OCGA § 16-1-7 (b), should have been prosecuted on a former prosecution.” (Emphasis supplied.) McCannon v. State, 252 Ga. 515, 517 (315 SE2d 413) (1984). “[A] plea of guilty to an indictment or complaint with its entry on the record and acceptance by the trial judge constitutes jeopardy for purposes of OCGA §§ 16-1-7 (b) and 16-1-8 (b).” State v. Smith, 185 Ga. App. 694, 696 (365 SE2d 846) (1988).

(a) Pruiett’s prosecution for possession of the Xanax found at her house is not barred under the substantive double jeopardy provisions of OCGA §§ 16-1-7 (a) and 16-1-8 (a) because it did not arise out of the “same conduct” as the possession of the drug in her car on the same day that formed the basis of her guilty plea.

The phrase “the same conduct” in [OCGA § 16-1-7] has been used interchangeably with the phrase “the same transaction.” In determining whether two offenses arise from the same conduct or transaction, Georgia courts have considered whether the two crimes involve the same parties, circumstances, locations, and times. The courts also consider whether evidence of the other offenses could be presented without permitting evidence of the first offense or vice versa.

(Citations and punctuation omitted.) Morgan v. State, 220 Ga. App. 198, 199 (469 SE2d 340) (1996).

Here, the two accusations against Pruiett arose from the discovery of one-milligram pills of Xanax in her car by the Trion police officer on July 30,2010, and the discovery of two-milligram pills of the same drug, as well as methamphetamine, clonazepam, and marijuana, by the county investigator at Pruiett’s home later on the same day. Although these discoveries were made on the same day, and although Pruiett was the common possessor in both cases, they occurred under different circumstances: Pruiett possessed the one-milligram doses in her car while traveling to an appointed drug deal, but shared possession of the two-milligram doses found later on July 30 at the home she shared with Day before beginning the trip culminating in her arrest. As we held in another case involving the discovery of drugs both at a failed drug deal and at the defendant’s residence later on the same day, “[t]he incidents forming the basis of the two charges ... occurred on the same date, but at different times and locations,” such that “each offense required proof of different facts and the offenses were not the same in law or fact.” Poole v. State, 175 Ga. App. 374, 375 (2) (333 SE2d 207) (1985); see also Kinchen v. State, 265 Ga. App. 474, 475-476 (594 SE2d 686) (2004) (following Poole and denying motion for acquittal as to convictions for possession of marijuana that a defendant attempted to sell to an undercover officer and for possession of the same drug later discovered in a warranted search of his home); Davis v. State, 287 Ga. App. 535, 536-537 (652 SE2d 177) (2007) (affirming denial of plea in bar as to subsequent prosecution where two sets of charges “involved different victims, locations and times”). Compare York v. State, 242 Ga. App. 281, 294-295 (8) (528 SE2d 823) (2000) (two counts of cocaine trafficking could not both stand where first count arose when home invader removed some of the cocaine from defendant’s house, stole defendant’s car, and drove some distance away before being arrested).

(b) Pruiett’s prosecution under the second accusation for possession of the Xanax found at her house is barred by the procedural double jeopardy provisions of OCGA § 16-1-8 (b), however.

OCGA § 16-1-8 (b) (1) bars prosecution if an accused has been “formerly prosecuted for a different crime or for the same crime based upon different facts,” if the former prosecution

[r] esulted in either a conviction or an acquittal and the subsequent prosecution [i] is for a crime of which the accused could, have been convicted on the former prosecution, [ii] is for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge), or [iii] is for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution or unless the crime was not consummated when the former trial began.

(Emphasis supplied.) See McCannon, 252 Ga. at 519 (OCGA § 16-1-8 (b) (1) “is worded in the disjunctive so that either (i), (ii), or (iii) is sufficient to establish the bar”).

Here, the State charged Pruiett with the identical crime of possession of an unspecified amount of Xanax on July 30,2010, in two accusations, the second of which was brought after Pruiett had pled guilty to the first. We also note that the record before us does not include a transcript of the hearing at which Pruiett pled guilty to the first accusation, with the result that we cannot determine whether the factual bases for that plea included possession of the drug in both her car and her home. “A plea of guilty admits the facts set forth in an accusation or indictment.” (Punctuation and footnote omitted.) Neslein v. State, 288 Ga. App. 234, 236 (1) (653 SE2d 825) (2007). Under these circumstances, which include the State’s charging Pruiett in the second accusation with a crime identical to that to which she had already pled guilty, the State has not shown that Pruiett was not convicted of possessing both the Xanax found in her car and that found in her home when she entered her guilty plea to the first accusation. The first of the three grounds for the procedural double jeopardybar of OCGA § 16-1-8 (b) (1) is thus established, and the trial court did not err when it barred the State from bringing the second charge for possession of Xanax against Pruiett.

2. The three remaining charges against Pruiett for possession of methamphetamine, clonazepam, and marijuana in her home are not barred under either (a) substantive or (b) procedural double jeopardy.

(a) Pruiett’s possession of the three drugs other than Xanax found at her home did not involve the “same conduct” as that at issue in the first accusation (which involved only Xanax), with the result that her prosecution for them does not violate the substantive double jeopardy provisions of OCGA §§ 16-1-7 (a) and 16-1-8 (a). See Poole, 175 Ga. App. at 375 (2). Compare Nicely v. State, 305 Ga. App. 387, 390 (1) (699 SE2d 774) (2010) (reversing denial of double jeopardy plea in bar as to two crimes arising from the same conduct).

(b) Pruiett’s prosecution for the three drugs other than Xanax found at her home does not violate the procedural double jeopardy bar because the second prosecution on those charges meets none of the scenarios laid out in OCGA §§ 16-1-7 (b) and 16-1-8 (b) (1).

Decided November 18, 2013.

First, Pruiett could not have been convicted of possession of these drugs on the former prosecution, which involved only Xanax. See OCGA § 16-1-8 (b) (1) [i]; McCannon, 252 Ga. at 519 (defendant previously placed in jeopardy as to murder could not have been convicted of rape, even if arising from the same conduct, on the former prosecution). Second, and as we have noted, these three crimes did not arise from the “same conduct” as the charge concerning possession of Xanax in Pruiett’s car, such that she cannot show that she “should have been charged” with possession of the three drugs found in her house in the first prosecution concerning the Xanax found in her car. Finally, facts showing that this district attorney had actual knowledge of both prosecutions are irrelevant where the two prosecutions arose from different conduct. See OCGA § 16-1-7 (b) (requiring single prosecution only of “several crimes arising from the same conduct”); Summers v. State, 263 Ga. App. 338, 339-341 (587 SE2d 768) (2003) (where various acts of financial identity fraud did not arise from the same conduct, defendant could not show that he should have been prosecuted in the first proceeding for the crimes charged in the second under OCGA § 16-1-8 (b)); compare Nicely, 305 Ga. App. at 390 (1) (reversing denial of plea in bar when district attorney’s actual knowledge concerning charge of cocaine possession was imputed to assistant district attorney who had previously accepted a plea as to a traffic citation arising from the same conduct). Thus the procedural double jeopardy provisions of OCGA §§ 16-1-7 (b) and 16-1-8 (b) (1) [ii] and [iii] do not apply. Summers, 263 Ga. App. at 340-341; see also Teal, 203 Ga. App. at 443 (2) (b) (even when trespass charges and battery charges “occurred on the same day,” they took place at different times and locations, and “[e]vidence of the battery could be presented without presenting evidence of the trespass and vice versa,” such that the later trespass charge was not barred under OCGA § 16-1-8 (b)).

The trial court did not err when it granted Pruiett’s plea in bar as to the second accusation for possession of Xanax, but erred when it granted the plea in bar as to the second accusation’s charges for possession of methamphetamine, clonazepam, and marijuana.

Judgment affirmed in part and reversed in part.

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

Herbert E. Franklin, Jr., District Attorney, Matthew C. Brown, Assistant District Attorney, for appellant.

Cook & Connelly, Rex B. Abernathy, Steven A. Miller, for appellee.

       Trion is located in Chattooga County.