text:
    A11A0097.
    THE STATE v. DAVIS.
    (711 SE2d 76)
   Doyle, Judge.

The trial court granted Danielle Davis’s motion to suppress the evidence of a State-administered breath test on the basis that the State did not reasonably accommodate Davis’s request for an independent test. The State appeals, and we affirm for reasons that follow.

The record shows that on June 27, 2009, the Georgia State Patrol set up a roadblock in downtown Athens. When Davis, who was driving a Dodge Durango, was approximately five or six cars away from the officers at the roadblock, she and her passenger exited the vehicle and attempted to switch places. Captain John Miller asked Davis why she was switching places with her passenger, and Davis replied that she didn’t think she was supposed to be driving the passenger’s car because she wasn’t insured to do so. Miller detected the odor of alcohol coming from both women, and he asked them if they had been drinking. After Davis and the passenger each indicated that she had “had a few drinks earlier in the night,” Miller administered a preliminary alco-sensor test; both women registered positive for alcohol.

Officer Michael Johnson then spoke with Davis, and he smelled “an odor of alcohol emitting from her person and breath” and noted that “[s]he had slurred speech and bloodshot eyes.” She was argumentative, used profanity, breathed rapidly, and cried during her interaction with Officer Johnson. Davis registered positive on a second alco-sensor test administered by Johnson, and she admitted to him that she had consumed four beers and two shots approximately an hour and a half earlier. Johnson conducted the horizontal gaze nystagmus field sobriety test on Davis, and he observed a total of six out of six clues for impairment; Johnson did not administer the walk-and-turn or one-leg-stand field sobriety tests because they were standing on a steep incline.

Johnson then placed Davis under arrest and read her the Georgia Implied Consent Notice. Davis initially refused to submit to the State-administered chemical breath test, but she then agreed to do so. Davis did, however, request a blood test, and she reiterated her request after she completed the chemical breath test. Johnson told Davis that he would “be glad to take her to get a blood test” and that she should choose the location for the test. When Davis indicated that she didn’t know where she wanted to take the test, Johnson suggested two hospitals in the area, St. Mary’s or Athens Regional. The officer also told Davis that she would have to pay for the test. According to Johnson, he was unfamiliar with the payment protocol at St. Mary’s and Athens Regional, but the hospitals where he had taken previous suspects for independent chemical tests required payment at the time of the tests. Davis then explained that her purse was in the passenger’s vehicle, which was no longer at the scene, and that she therefore could not pay for a blood test. Thereafter, Davis changed her request for a blood test to a second breath test, and when Johnson asked where she wanted to have it administered, Davis stated that she wanted to take it “here,” at the scene. Davis then asked if the officer would drop the charges if the second test indicated that her blood alcohol was under the legal limit, and he replied negatively; Davis then withdrew her request for another breath test.

Davis was charged with driving while having an unlawful alcohol concentration (DUI per se) and driving under the influence to the extent that it was less safe (DUI less safe). Davis filed a motion to suppress the evidence of the State-administered breath test, and the tried court granted the motion after an evidentiary hearing.

On appeal, the State contends that the trial court erred by granting Davis’s motion to suppress the results of the breath test administered by the State, arguing that (1) Officer Johnson made reasonable efforts to accommodate her request for an independent chemical test, and (2) Davis withdrew her request for the independent blood test, and therefore no reasonable accommodation was necessary.

Under OCGA § 40-6-392 (a), “evidence of the amount of alcohol or drug in a person’s blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person’s blood, urine, breath, or other bodily substance shall be admissible.” When such a test is performed, however,

[t]he person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.

If an officer fails to obtain an independent test sought by an accused, “it is incumbent on the trial court to determine whether that failure was justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks the independent test.”

The factors to be considered by the trial court in making the determination, include, but are not limited to, the following: (1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the accused’s requests; (3) availability of police time and other resources; (4) location of requested facilities . . .; and (5) opportunity and ability of accused to make arrangements personally for the testing.

“Whether the officer made a reasonable effort is a determination which depends largely on local circumstances, circumstances which the trial court can adjudge far better than we.”

Here, the trial court found that after Davis requested an independent blood test,

Johnson told her that she would have to pay for the test (even though he did not know the protocol regarding payment at either of the local hospitals). However, her purse was in the vehicle she had been driving, which had since been driven from the location, and she told Trooper Johnson that she did not have money to pay. The State offered no evidence to show that the Defendant was afforded the opportunity to have her purse brought back to the scene or was given another opportunity to make arrangements to pay for the test. Under these circumstances, the officer did not reasonably accommodate the Defendant’s request, and the results of the State-administered breath test are inadmissible.

“[W]e are bound to view the evidence most favorably to uphold the trial court’s findings and judgment.” Officer Johnson’s unilateral determination that Davis would be unable to pay for the blood test, without confirming the hospitals’ policies regarding payment and without offering to accommodate Davis in obtaining a method of payment, was insufficient. As stated in Butts v. City of Peachtree City and reiterated in State v. Anderson, “[w]hen the officers learned that appellant did not have sufficient cash for a blood test at one of the recommended hospitals, appellant should have been offered the opportunity to use a telephone to make other arrangements.” Thus, we conclude that the record supports the trial court’s ruling that the State failed to reasonably accommodate Davis’s request for an independent blood test.

We are not persuaded by the State’s argument that Davis withdrew her request for an independent blood test after Officer Johnson advised her that she would have to pay for the test but failed to allow her the opportunity to make other payment arrangements. As we have previously stated,

the police cannot escape the duty to reasonably accommodate individuals who have invoked the right to an additional test simply because such individuals fail to insist on alternatives, especially when they have not been instructed of their responsibility to make such arrangements and that failure to do so results in a waiver. It must be remembered that such individuals are in police custody and do not have free reign to dictate their own actions. Because of the very nature of the arrest, their faculties are often impaired, and their actions are largely dictated by the instructions given to them by the police.

Decided May 12, 2011.

Carroll R. Chisholm, Jr., Solicitor-General, Keenan R. Howard, Assistant Solicitor-General, for appellant.

Matthew J. Karzen, for appellee.

Judgment affirmed.

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

       OCGA § 40-6-391 (a) (5).

       OCGA § 40-6-391 (a) (1).

       In her motion to suppress, Davis also challenged the validity of the roadblock. The trial court concluded that the roadblock was not improper and denied Davis’s motion to suppress on that basis. That ruling is not at issue in this appeal.

       OCGA § 40-6-392 (a) (3).

       (Punctuation omitted.) State v. Anderson, 258 Ga. App. 127, 128 (572 SE2d 758) (2002).

       (Punctuation omitted.) Ritter v. State, 306 Ga. App. 689, 690 (1) (703 SE2d 8) (2010).

       (Punctuation omitted.) State v. Metzager, 303 Ga. App. 17, 19 (692 SE2d 687) (2010).

       (Citation omitted.)

        Ritter, 306 Ga. App. at 691 (1).

       205 Ga. App. 492, 494 (2) (422 SE2d 909) (1992).

       258 Ga. App. at 129.

        Butts, 205 Ga. App. at 494 (2).

       See State v. Howard, 283 Ga. App. 234, 235-238 (641 SE2d 225) (2007) (affirming suppression of breath test because the officer did not allow the accused to obtain funds to pay for an independent chemical test, nor did the officer provide any assistance other than offering to take the accused to a bank, where the accused did not have sufficient funds in his account to pay for the test); Cole v. State, 263 Ga. App. 222, 224 (587 SE2d 314) (2003) (reversing the denial of a motion to suppress because the officer made no effort to ascertain whether hospitals were open or to offer the accused alternative testing measures); Anderson, 258 Ga. App. at 128-129 (evidence that the officer failed to allow the accused to make a telephone call or to make other arrangements to pay for an independent blood test supported the trial court’s conclusion that the State failed to reasonably accommodate the accused’s request); State v. Brodie, 216 Ga. App. 198, 199 (2) (453 SE2d 786) (1995) (results of breath test properly suppressed because the police took the accused to a hospital without warning him of the facility’s advance payment policy and failed to allow him to make arrangements to secure payment); Butts, 205 Ga. App. at 494 (2) (results of breath test should have been suppressed because the accused “was never instructed by the police to personally make arrangements for the test, nor was he allowed the use of a telephone”); Love v. State, 195 Ga. App. 392, 393 (2) (393 SE2d 520) (1990) (reversing trial court’s failure to suppress breath test results because the officer “was fully aware that the appellant did not have sufficient funds to obtain a blood test at the hospital but nevertheless took him there without warning him of the hospital’s advance payment policy, so as to enable him to attempt to make arrangements to secure the necessary funds”).

        Butts, 205 Ga. App. at 494 (2).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A11A0228.
    JENKINS v. WACHOVIA BANK, NATIONAL ASSOCIATION.
    (711 SE2d 80)
   Mikell, Judge.

Martha J. Jenkins sued Wachovia Bank, National Association (“Wachovia”), asserting claims based on Wachovia’s payment, over a forged endorsement, of a check made payable to Jenkins but never delivered to Jenkins or in her possession. The trial court granted summary judgment to Wachovia, and Jenkins appeals. Finding no error, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record reflects the following undisputed facts. On July 26, 2007, Jenkins signed a promissory note, security deed, and other documents relating to a loan from First Horizon Home Loans, a division of First Tennessee Bank (the lender and associated entities hereinafter referred to collectively as “First Tennessee”). Jenkins alleges that she did not intend to obtain a loan from First Tennessee, but that she was defrauded into signing these documents by her cousins, Courtney Brown (“Brown”) and Gail Brown (Courtney’s mother), and by the closing attorney, Brian D. Pierce. The total loan was for $88,000. A check for loan proceeds in the amount of $69,000, dated July 31, 2007, was issued payable to “Martha Jeanette Jenkins,” drawn on the “Brian Pierce, R C., Trust Account” at Wachovia. It is undisputed that Jenkins never received this $69,000 check. Instead, Jenkins alleges that Brown forged Jenkins’s signature on the back of the check and then endorsed it in his own name. Brown then set up two new accounts at Wachovia, deposited a total of $60,000 into those accounts, and obtained the remaining $9,000 in cash.

Jenkins filed the underlying action against Wachovia on March 5, 2009. Based on Wachovia’s actions in failing to obtain Jenkins’s signature on the check, cashing the check for Brown, opening two new accounts for Brown, depositing the funds in the new accounts, and giving Brown the balance of the funds from the check in cash, Jenkins asserted claims against Wachovia for conversion, theft by taking, fraud, intentional breach of private and legal duties owed to her, negligence, and intentional infliction of emotional distress. In the last amendment to her complaint, Jenkins asserted the following additional claims against Wachovia: (1) Wachovia was not a holder in due course; (2) Wachovia intentionally and negligently failed to follow its policies and procedures concerning verification of customer identification and endorsements; (3) Wachovia “intentionally, fraudulently, and negligently” cashed a “forged check” for Brown and failed to act in good faith or with reasonable commercial standards of fair dealing; and (4) Wachovia conspired with others to defraud Jenkins. Jenkins subsequently withdrew her claims for conversion and theft by taking. Jenkins moved for default judgment against Wachovia, and Wachovia moved for summary judgment. After a hearing, the trial court denied Jenkins’s motion for default judgment and granted summary judgment in favor of Wachovia. It is from this order that Jenkins appeals.

1. Jenkins contends that the trial court erred in granting summary judgment as to her “claim” that Wachovia was not a “holder in due course.” However, whether Wachovia was a holder in due course of the check is irrelevant to the situation at bar. “Holder in due course” status gives the holder of an instrument (such as a check) the right to enforce it and to cut off certain defenses of the obligor under the instrument. But here, Jenkins is not the “holder” of the check. To be a “holder” of a negotiable instrument requires possession of the instrument, and it is undisputed that Jenkins never had possession of this check at any time. Further, Wachovia is not attempting to enforce the check against Jenkins. Thus, whether Wachovia is a “holder in due course” is irrelevant to her action. As the trial court correctly noted, “[h] older in due course status ... is not an affirmative claim which [Jenkins] may make against Wacho-via for damages.” Thus, it is irrelevant whether there was evidence of fraud on the face of the check, because such evidence goes only to determine if Wachovia was a holder in due course.

Jenkins’s reliance on Hartsock v. Rich’s Employees Credit Union is misplaced. In that case, the check in question was not delivered to the original payee but was instead intercepted, altered, and deposited by a thief into the thiefs account at the depository bank. The originally-named payee sued the depositor and the drawee banks. This Court found that the defendant banks’ motion for summary judgment was properly denied “on the issue of whether [the banks] are holders in due course of the check,” because there was some evidence of forgery on the face of the check at issue. However, the opinion in that case does not disclose what claim the payee was asserting, as to which the banks’ “holder in due course” status might be relevant. In the case at bar, whether Wachovia is or is not a holder in due course does not impact any claim asserted by Jenkins.

2. In Jenkins’s second, third, and fourth enumerations of error, she asserts that the trial court erred in granting summary judgment to Wachovia as to her claims based on (1) Wachovia’s intentional and negligent failure to follow its policies concerning verification of endorsements on checks; (2) Wachovia’s breach of a private duty and legal duty to Jenkins; and (3) Wachovia’s negligent and intentional act of cashing a forged check, failure to act in good faith, and failure to observe reasonable commercial standards. We discern no error.

It is undisputed that the check was never delivered to Jenkins and she never had possession of it. For that reason, Jenkins has no rights under this particular check. OCGA § 11-3-420 provides that “[a]n action for conversion of an instrument may not be brought by . . . a payee or indorsee who did not receive delivery of the instrument either directly or through delivery to an agent or a co-payee.” No conversion action lies because a payee who never had possession of the check has no interest in the check and cannot enforce it. As noted in the Uniform Commercial Code (UCC) official comments accompanying OCGA § 11-3-420, “[u]ntil delivery, the payee does not have any interest in the check. The payee never became the holder of the check nor a person entitled to enforce the check.”

The fact that Jenkins withdrew her claim for conversion does not make her other tort claims valid. As the official comments explain, one in Jenkins’s position (that is, payee of a check which was never delivered to her) is not injured by the forged endorsement of the check:

Normally the drawer of a check intends to pay an obligation owed to the payee. But if the check is never delivered to the payee, the obligation owed to the payee is not affected. If the check falls into the hands of a thief who obtains payment after forging the signature of the payee as an indorsement, the obligation owed to the payee continues to exist after the thief receives payment. Since the payee’s right to enforce the underlying obligation is unaffected by the fraud of the thief, there is no reason to give any additional remedy to the payee.

The comment makes it clear that a payee who does not take delivery of an instrument does not have any ownership interest in the check. Further, Jenkins does not have standing to enforce the check under OCGA § 11-3-301, which is also grounded on present or past possession of the check, with limited exceptions not applicable in the case at bar.

Because Jenkins has no ownership interest in the check and has no standing to enforce it, her claims based on tort fall to the ground. The actions by Wachovia of which Jenkins complains — paying the check over a forged endorsement, failing to obtain Jenkins’s endorsement of the check, opening bank accounts for Brown, depositing the funds in the new accounts, giving Brown the balance of the funds from the check in cash, failure to act in good faith, and failure to observe reasonable commercial standards — were not violations of any legal right of, or duty owed to, Jenkins, and she has suffered no damages from these actions. Thus, they do not give rise to a tort claim under the statutes she cites, OCGA §§ 51-1-1, 51-1-6, and 51-1-8. And Jenkins’s reliance on OCGA § 11-3-501 is also misplaced. This statute merely defines “presentment” of an instrument for purposes of determining when or if an instrument is dishonored; it does not support a cause of action by one never in possession of the instrument against the depositor or drawee bank.

Jenkins’s claim to recover $69,000 from Wachovia is contradicted by her adamant insistence that she did not intend to take out a loan. In seeking to recover the check proceeds from Wachovia, she is in essence making a claim for the loan proceeds. If she wants to ratify the loan, however, as discussed above, she can make a claim against the closing attorney for the loan proceeds.

3. Jenkins asserts that the trial court erred in granting summary judgment to Wachovia on Jenkins’s claim for conspiracy to defraud. This enumeration of error fails. As set forth in Division 2 above, Jenkins has no tort claim against Wachovia based on Wachovia’s action in paying the $69,000 check over a forged endorsement. Because the tort claim fails, so also the conspiracy claim fails:

A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means. To recover damages for a civil conspiracy claim, a plaintiff must show that two or more persons, acting in concert, engaged in conduct that constitutes a tort. Absent the underlying tort, there can be no liability for civil conspiracy.

4. Jenkins argues that the trial court erred in granting Wachovia summary judgment on her claim for intentional infliction of emotional distress. We find no error.

In order to prevail on such a claim, Jenkins must show, inter alia, that the behavior of Wachovia’s employees was “extreme and outrageous.” Further, “[wjhether the alleged conduct is sufficiently extreme or outrageous is a question of law for the trial court.”

Jenkins bases her claim on the following actions taken by Wachovia’s employees: intentionally cashing a check over a forged endorsement, in violation of Wachovia’s internal policies; depositing some of the funds into two new accounts established by Brown, and giving Brown the balance in cash; communicating with Brown and Pierce with regard to the check; and intentionally or recklessly causing Jenkins severe emotional distress. Even accepting Jenkins’s characterization of Wachovia’s actions, none of these actions rise to the level of “intentional infliction of emotional distress.” As this Court has explained, in determining “[w]hether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress,”

it has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

As the evidence in this case clearly fails to meet this standard, the trial court did not err in granting summary judgment to Wachovia on this issue.

5. Jenkins contends that the trial court erred in denying her motion for default judgment against Wachovia. We disagree.

Jenkins’s complaint was filed on March 5, 2009, and Wachovia was served with process on March 11, 2009. On April 7, 2009, before Wachovia’s answer was due, Jenkins’s counsel agreed to an extension of time for Wachovia to file its answer, and on or about April 14, 2009, the parties signed a stipulation extending the time for Wacho-via’s response pleadings to May 10, 2009. As May 10, 2009, was a Sunday, Wachovia filed its answer and the stipulation extending time on May 11, 2009.

Despite the signed stipulation between the parties, Jenkins filed a motion for default judgment against Wachovia on May 7, 2009, contending that Wachovia was in default despite the agreement to extend time, because Wachovia failed to file the stipulation extending time until after the original period for filing its answer had expired. The trial court denied Jenkins’s motion for default judgment.

A trial court’s denial of a motion for an entry of default judgment is reviewed on appeal for abuse of discretion. In the case at bar, Jenkins agreed to the extension of time, and she has not shown that Wachovia’s failure to file the stipulation extending time within the original period for filing its answer resulted in any prejudice to her. Even though “[a] private agreement between counsel extending time to file pleadings is not binding except when in compliance with [OCGA § 9-11-6 (b)] and it is filed with the court,” the trial court acted within its discretion to deny default judgment in this case.

Decided May 13, 2011.

Simmons & Simmons, Annie R. Simmons, for appellant.

Nelson, Mullins, Riley & Scarborough, Richard B. Herzog, Jr., Kinan Obeidin, for appellee.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       Wachovia was incorrectly identified as “Wachovia Bank National Association” in Jenkins’s complaint.

       (Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       Jenkins alleges that she was informed by Pierce that the documents related to a codicil to her will and other matters. Alleging fraud in connection with this loan, Jenkins has filed separate actions against Gail and Courtney Brown, the lending entities, and Pierce and his professional corporation, in addition to the action underlying this appeal.
      In her action against Pierce, the trial court granted summary judgment to defendants, based on Jenkins’s admission that she did not read the documents before signing them. On appeal, this Court reversed, on the ground that genuine issues of material fact existed as to whether at the time the loan documents were signed, a confidential attorney-client relationship existed between Jenkins and Pierce, upon which Jenkins might have relied in not reading the documents. Jenkins v. Pierce, 304 Ga. App. 603, 604 (697 SE2d 286) (2010).

       The term “holder in due course” is defined at OCGA § 11-3-302.

       See OCGA § 11-3-305 (b) and official comment 2 thereunder; “Proof of Fraud in the Making of Commercial Paper and the Resulting Consequences,” by Thomas M. Geisler, Jr., 93 Am. Jur. Proof of Facts 3d 141 § 11 (except for certain “real defenses,” defenses that an obligor might raise against a holder of an instrument are cut off where the holder is one “in due course”).

       See OCGA § 11-1-201 (20).

       See Southtrust Bank of Ga. v. Parker, 226 Ga. App. 292, 293-295 (1) (486 SE2d 402) (1997) (bank, a holder in due course, sued maker of note, who raised defense of forgery of her signature; summary judgment for maker was reversed where fact issues remained as to whether maker ratified note).

       279 Ga. App. 724 (632 SE2d 476) (2006).

       Id.

       Id.

       Id. at 726 (3).

       Id.

       Id.

       (Emphasis supplied.) OCGA § 11-3-420 (a) (ii). Accord Hartsock, supra at 724 (1).

       “To determine the legislature’s intent in enacting a provision of the UCC, we consult the official comments accompanying the UCC.” (Citations and punctuation omitted.) Gerber & Gerber, P.C. v. Regions Bank, 266 Ga. App. 8, 11 (2), n. 1 (596 SE2d 174) (2004). Accord Hartsock , supra at 724-725 (1).

       OCGA § 11-3-420, Official Comment 1.

       Id.

       Under OCGA § 11-3-301, a
      “[p]erson entitled to enforce” an instrument means (i) the holder of the instrument; (ii) a nonholder in possession of the instrument who has the rights of a holder; or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Code Section 11-3-309 [dealing with lost or stolen instruments] or subsection (d) of Code Section 11-3-418 [dealing with payment of an instrument by mistake]. A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

       See id. at subsection (iii). See also id., official comment.

       OCGA § 51-1-1 (“A tort is the unlawful violation of a private legal right other than a mere breach of contract, express or implied. A tort may also be the violation of a public duty if, as a result of the violation, some special damage accrues to the individual”).

       OCGA § 51-1-6 (“When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby”).

       OCGA § 51-1-8 (“Private duties may arise from statute or from relations created by contract, express or implied. The violation of a private duty, accompanied by damage, shall give a right of action”).

       See 5 Ga. Jur. Uniform Commercial Code § 4:153 (“For Article 3 purposes, essentially, an instrument is dishonored when a necessary or optional presentment is duly made and due acceptance or payment is refused and cannot be obtained within the prescribed time”) (footnote omitted).

        Hartsock, supra at 725-726 (2), citing Premier/Ga. Mgmt. Co. v. Realty Mgmt. Corp., 272 Ga. App. 780, 788 (3) (c) (613 SE2d 112) (2005).

       See Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (1) (335 SE2d 445) (1985) (listing four elements of claim for intentional infliction of emotional distress).

       (Citation omitted.) Witcher v. Confederate Packaging, 287 Ga. App. 451, 453 (2) (651 SE2d 790) (2007).

       (Footnote omitted.) Ashman v. Marshall’s of MA, 244 Ga. App. 228, 229 (1) (535 SE2d 265) (2000). Accord Kirkland v. Earth Fare, Inc., 289 Ga. App. 819, 823 (4) (658 SE2d 433) (2008) (whole court).

       (Citation omitted.) Northside Hosp. v. Ruotanen, 246 Ga. App. 433, 435 (541 SE2d 66) (2000).

       Id., citing Phinazee v. Interstate Nationalease, 237 Ga. App. 39-40 (514 SE2d 843) (1999). Accord Wilcher, supra at 454 (2).

       See OCGA § 9-11-6 (b).

        Edenfield & Cox, P.C. v. Mack, 282 Ga. App. 816 (640 SE2d 343) (2006).

       (Citation and punctuation omitted.) Roberson v. Gnann, 235 Ga. App. 112, 114 (2) (508 SE2d 480) (1998).


text:
    A11A0642.
    SCRUGGS v. THE STATE.
    (711 SE2d 86)
   Mikell, Judge.

Following his conviction by a jury of armed robbery, two counts of aggravated assault, and criminal trespass, Tyral Scruggs appeals from the denial of his motion for new trial.

1. In his sixth enumeration of error, Scruggs challenges the legal sufficiency of the evidence on his armed robbery conviction, arguing that the trial court should have granted his motion for directed verdict.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the 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.

This test applies “when the sufficiency of the evidence is challenged, whether the challenge arises from the [denial] of a motion for directed verdict or the [denial] of a motion for new trial.”

Viewed in this light, the evidence was that, on the evening of November 2, 2007, John Gil had just been paid his wages by the owner of the tire shop in Cobb County where he worked part time. Gil received his pay, $300, in fifteen $20 bills. Because his driver’s license had been suspended, Gil began walking home and stopped by Fred’s, a convenience store, to buy two packs of cigarettes. As he left Fred’s, around 8:00 or 9:00 p.m., Gil cut through the parking lot of a liquor store and started down Reed Drive. He noticed a Ford Crown Victoria parked on that street in an area where no one lived. Two men on foot then approached him, and one of the two asked him for a cigarette. As he was getting the cigarettes out of his pocket, the man who asked for the cigarette, identified by Gil as Scruggs, pulled a handgun and stuck it in Gil’s stomach. Gil tried to push the gun away, but then the second man pulled a gun, put it in Gil’s back, and pulled Gil’s sweatshirt up over his head. The two men then went through Gil’s pockets and took his money, two packs of cigarettes, his identification card, and a Chapstick. Gil asked the two men if he could leave and they said “yes.” As he was walking, then running, away, Gil saw the Crown Victoria drive by and pick up the two men. Gil got the tag information and the make and color of the car and watched it speed away. Steven Perry, who was indicted and tried with Scruggs, was the driver of the Crown Victoria.

Gil called the police, and an armed robbery dispatch giving the description of the Crown Victoria was broadcast. Sergeant Orrin Hamilton of the Cobb County Sheriffs Department was driving to his second job around 10:15 p.m. when he saw a car matching this description carrying two African-American men eastbound on Windy Hill Road. Hamilton pulled in behind the car, which then made a quick right turn, requiring Hamilton to go around a median to pursue it. The car then made a u-turn directly in front of his car and went back to Windy Hill Road where it turned into the Hickory Lake Apartments. The car parked in a parking spot, and three men jumped out and ran. Hamilton pursued them in his car, keeping his spotlight on them as they ran. Hamilton heard someone yell “get out of my house” and saw Scruggs on the lawn, where he took him into custody. Sergeant Robert Dorsey also responded to the dispatch and heard a woman yelling that someone was trying to break into her apartment. He pursued the man and arrested co-defendant Perry. A black tee shirt was found on the ground in front of the apartments where Dorsey heard the woman scream. When Perry was arrested, he was wearing a long sleeved brown shirt and blue jeans.

Detective William Stephens also responded to the apartments and went to the Crown Victoria where he found Gil’s identification card on the ground outside the front passenger’s door. The identification card was returned to Gil by a police officer about one hour following the robbery. Police obtained a search warrant, and crime scene technicians processed the car for latent fingerprints, finding one on a compact disc and one on a cell phone. The print on the cell phone was later identified as Perry’s. No matches for Scruggs were made on the identifiable latent prints. One of the technicians also located a Cobra 9 millimeter pistol lodged between the rear seat cushions, with eleven rounds of ammunition in the magazine. This technician also found two packs of cigarettes in the car. No second handgun was found.

Officers took Perry, Scruggs, and two other African-American men wearing black who were located in the apartment complex to a nearby high school. Gil was transported to the high school and read the guidelines for a showup. The men were shown to Gil one at a time, and he identified Perry as the driver of the car and Scruggs as the man who walked up, asked him for the cigarette, and stuck a gun in his stomach. Gil said that the other two men were not involved.

Following Scruggs’s arrest, Detective Stephens removed $359.37 in cash from him. This total consisted of sixteen $20 bills, three $10 bills, one $5 bill, four $1 bills, and loose change.

Scruggs testified that he had just moved to Georgia and obtained work at Church’s Chicken through Perry, a relative through marriage. On November 2, 2007, he had gone to Church’s to get his paycheck. His sister had dropped him off on the east/west connector where he usually caught a bus to Church’s. That day, he called Perry, who said he would come get him. Instead of Perry, two men Scruggs did not know came to pick him up in the Crown Victoria and took him to Church’s where he cashed his paycheck for around $80 to $100. Scruggs said he had also withdrawn $200 from his wife’s bank account at an ATM; that he had sold some musical equipment to his brother for some additional cash; and he had $320 to $340 cash when he was arrested. Scruggs testified that he was then taken back to the bus stop where he waited for a while for the bus. Perry then returned to the bus stop with two other men in the car and said he would take Scruggs home because he had missed the bus. When they arrived at the apartments, the two other men jumped out of the car and ran. Scruggs and Perry then got out and ran. Scruggs ran because he was scared and he was on probation at the time. One of the two men who ran had twists in his hair and gold teeth.

Co-defendant Perry testified that he was working at Church’s on November 2 and that Scruggs did come by in a Crown Victoria to pick up his paycheck. Scruggs and another man who was chubby with short twists in his hair picked Perry up from work. He did not know the other man’s “government name,” but knew him as “Munchie” or “Blunt.” Perry drove the Crown Victoria because neither of the other men had a license. Perry denied that there was any conversation about robbing anyone and denied that he ever saw a gun. Perry drove Scruggs and the other man to the liquor store and they got out, returning in a few minutes. Perry then drove to the apartments, without speeding or driving erratically. Perry denied knowing about, discussing, or seeing any criminal activity.

We find the evidence of armed robbery legally sufficient to support Scruggs’s conviction. Scruggs argues that there were conflicts in Gil’s testimony and pretrial statements to the police, weaknesses in his descriptions of the robbers and in his identification of Scruggs and Perry as participants. These circumstances only created issues of fact for the jury, which resolved them adversely to Scruggs.

2. Scruggs’s first enumeration challenges the trial court’s overruling of his special demurrer to the indictment.

The true test of the sufficiency of an indictment is not whether it could be made more certain and definite, but whether it contains the elements of the offense charged, apprises the accused of what he must be prepared to defend against, and protects against double jeopardy. This Court applies a de novo standard of review to a trial court’s determination that the allegations in an indictment were legally sufficient.

The armed robbery count alleged that Perry and Scruggs committed the “offense of armed robbery for that the said accused ... on or about the 2nd day of November, 2007, with intent to commit theft, did take U. S. currency and cigarettes from John Paul Gil by use of a handgun.” The aggravated assault counts charged that Perry and Scruggs committed “the offense of aggravated assault for that the said accused ... on or about the 2nd day of November, 2007, did unlawfully make an assault upon the person of John Paul Gil with intent to rob” (Count 2) and “with a handgun, a deadly weapon, by brandishing it in a threatening manner towards said victim (Count 3).” The criminal trespass count charged Scruggs “with the offense of criminal trespass for that the said accused ... on and about the 2nd day of November, 2007, did knowingly and without authority enter upon the premises of Joseph McGirt, located at 490 Windy Hill Road, Apt. 913, for an unlawful purpose, to wit: to hide from pursuing police officers (Count 5).”

Scruggs argues that none of the counts states the time of the alleged offenses; the armed robbery count fails to state with certainty the offense charged because it does not allege which defendant used a handgun in commission of the offense; the aggravated assault counts fail to identify which defendant made the aggravated assaults on the victim; and the criminal trespass count fails to allege a crime.

“A general demurrer challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment.” By filing a special demurrer, the defendant claims that the indictment is “imperfect as to form or that the accused is entitled to more information.”

(a) We find Scruggs’s assertion that he was entitled to have the time of day at which the crime was committed included in the indictment without merit.

(b) Scruggs argues that his special demurrer should have been granted because the indictment does not specify which of the accuseds had the gun, or whether they each had a gun, or whether one aided and abetted the other.

While the defendant is entitled to know the particular facts constituting the alleged offense to enable him to prepare for trial, it is not necessary for the [s]tate to spell out in the indictment the evidence on which it relies for a conviction. Because the allegations of the indictment were sufficient to be easily understood by the jury, to allow [Scruggs] to prepare [his] defense, and to protect [him] from double jeopardy, the trial court’s decision overruling [Scruggs’s] special demurrer was authorized.

Also, it is “well-settled in Georgia that the [s]tate is not required to specify in the indictment that it is charging the defendant as a party to the crime.”

Scruggs’s challenge that Count 5, criminal trespass, does not allege a crime also fails because eluding and hiding from an officer is a violation of OCGA § 16-10-24 (a), which satisfies the unlawful purpose element of criminal trespass, as alleged in the indictment.

Therefore, we find no error in the trial court’s overruling of Scruggs’s special demurrer.

3. In his second enumeration, Scruggs argues that the trial court erred in denying his motion to sever his trial from that of his co-defendant.

“The decision whether to grant or deny a motion to sever is within the discretion of the trial court.”

It is incumbent upon the defendant who seeks a severance to show clearly that the defendant will be prejudiced by a joint trial, and in the absence of such a showing, the trial court’s denial of a severance motion will not be disturbed. Factors to be considered by the trial court are: whether a joint trial will create confusion of evidence and law; whether there is a danger that evidence implicating one defendant will be considered against a co-defendant despite limiting instructions; and whether the defendants are asserting antagonistic defenses.

Scruggs argues that his and Perry’s defenses were antagonistic, thereby requiring severance. “[T]he mere fact that co-defendants’ defenses are antagonistic is not sufficient in itself to warrant separate trials. A showing of harm is necessary.” Because Scruggs has failed “to point to any testimony or other evidence introduced at the joint trial he received that could not have been introduced against him in a separate trial, he has failed to meet his burden of showing harm.”

There was no error in the trial court’s denial of Scruggs’s motion to sever.

4. Scruggs argues in his third enumeration that the trial court erred in denying his motion to suppress evidence of the showup in which he was identified by Gil.

At a hearing on a motion to suppress, the trial judge sits as the trier of fact.

In cases involving the review of the grant or denial of motions to suppress or motions in limine, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous.

The trial court’s application of the law to undisputed facts is subject to de novo review. Here, testimony was introduced at the hearing on the motion to suppress, and the witnesses were cross-examined by counsel for Scruggs. The trial court then orally announced her factual findings on the record. Therefore, we apply the clearly erroneous standard to our review of this ruling.

Although a one-on-one showup is inherently suggestive, identification testimony produced from the showup is not necessarily inadmissible. We must apply a two-part test to determine whether the showup was impermissibly suggestive, and, if the showup was impermissibly suggestive, we then consider the totality of the circumstances to determine whether a “very substantial likelihood” existed of irreparable misidentification. With regard to part one of the test, this Court has previously held that on-the-scene showup identifications, like the one in the present case, are often necessary “due to the practicabilities inherent in such situations.” Thus, as long as this type of showup was reasonably and fairly conducted at or near the time of the offense, it is not impermissibly suggestive and we need not reach the second part of the test.

Here, the robbery occurred at approximately 10:15 p.m., and the Crown Victoria was spotted by Hamilton as soon as he heard the BOLO on his radio. Scruggs and Perry were apprehended after Hamilton followed the car into the apartments, and they, along with two other African-American men, were taken to a nearby location where Gil identified Scruggs at 11:32 p.m. as one of the men who robbed him. At 11:35 p.m., Gil identified Perry as the driver of the Crown Victoria. The other two men, according to Gil, did not participate in the robbery. Gil also identified Scruggs at trial as the man who came up, asked for a cigarette, and pulled a gun on him.

The majority of Scruggs’s argument here consists of quoting from Gil’s testimony which was given at the motion for new trial hearing regarding his identification of Scruggs. Scruggs argues that inconsistencies in this testimony, along with those in Gil’s trial testimony, make his pretrial identification impermissibly suggestive.

As identity is a question for the trier of fact, the credibility of the witness making such identification is not to be decided by this Court where a witness identifies a defendant. Instead, the witness’s credibility as well as the weight given his testimony on the perpetrator’s identity were issues for the jury.

Therefore, we find no error in the trial court’s denial of Scruggs’s motion for new trial on this issue.

5. Scruggs contends, in his fourth enumeration, that the trial court erred in allowing the state to cross-examine him regarding pending, dismissed, and nonfelony criminal charges.

“The standard of review of the trial court’s ruling on a challenge to evidence on the ground that its probative value is outweighed by its tendency to unduly prejudice the jury is an abuse of discretion standard.”

Scruggs testified in his defense and, during his direct examination, the following exchange occurred:

Q. Tyral, have you ever been a [sic] trouble before?
A. Yes.
Q. And tell us what — you had a prior conviction —
A. Yes, it was — well, I was on probation. I am off probation. I successfully completed it.
Q. Can you speak up a little bit? It is hard for me to hear.
A. I was on probation.
THE COURT: He needs to pull it towards him.
A. Can you hear me?
Q. Well, you need to speak up.
A. I was on —
Q. All right. Kind of look this way so we can hear you, and speak up. We all want to hear what you have to say.
A. Yes, I was on probation. It’s sort of like a — down here they call it a first offender act. Down there, it’s SIS. And I successfully completed my probation. I am off probation now. This happened like four or five years ago.
Q. That was in Missouri?
A. Yes, in Kansas City, Missouri.

During the state’s cross-examination, Scruggs was asked why he ran from the car when the police approached. He answered as follows:

A. I was on probation at the time, as I stated before. . . . Only reason I jumped out, I was scared, I was on probation. I can’t get in any trouble. I came down here. When I moved down here, I immediately got a job to take care of my kids. That is all I was doing. I didn’t cause anyone harm. I didn’t do anything to anyone. . . .
Q. And what were you on probation for?
A. Possession charge.
Q. Possession of what?
A. Cocaine.
Q. Okay. Okay. And you testified also that — Mr. West said, have you ever been in trouble before, right? And you said yes.
A. Yes.
Q. He asked you, for what? And you told him this one incident.
A. He didn’t ask me what. He said, have you ever been in trouble before? I said yes. And then I told him I was on probation.
Q. Okay. He asked you what you have been in trouble with before, and you told him for this probation for possession of cocaine?
A. That is what it would have been.
Q. But that is not true. You have been in trouble before that and after that, haven’t you?
A. When did I get in trouble before? For parking tickets or something?
Q. You have been in trouble before and after that, have you not?
A. No felonies. It was like speeding tickets.

At this point, the prosecutor asked that the jury be excused, and a discussion ensued as to whether defense counsel had opened the door to allow the state to introduce other arrests of Scruggs. The trial court allowed the state to ask about three arrests, a November 15, 2008 Georgia possession of cocaine charge; a November 21, 2008 disorderly conduct, assault, and sexual battery charge; and a June 6, 2006 Kansas charge of endangering his daughter by not having her in a seat belt, to which Scruggs pled guilty.

When cross-examination continued, the state asked:

Q. Mr. Scruggs, we were talking about — you had answered your attorney’s question: Ever been in trouble before? And you said that one time for the cocaine. But you’ve actually been in trouble more times than that, have you not?
A. Yes, I’ve been in trouble.
In a criminal case the [s]tate can not rebut or question the presumption of the defendant’s good character unless the defendant discards the presumption thus afforded and elects to put his actual character in issue by evidence or by his statement to the jury. However, OCGA § 24-9-82 provides: “A witness may be impeached by disproving the facts testified to by him.” Thus, while a criminal defendant is not subject to impeachment by proof of general bad character or prior convictions until he puts his general good character in evidence, he is subject to impeachment the same as any other witness. Evidence of prior crimes or bad acts can be admitted where such evidence is necessary and relevant to impeach the defendant’s specific testimony.

Decided May 13, 2011.

Thomas M. West, for appellant.

Patrick H. Head, District Attorney, James B. Glasgow, Anna G. Cross, Assistant District Attorneys, for appellee.

The colloquy recounted above shows that defense counsel opened the door to other incidents of “trouble” in which Scruggs was involved. Therefore, the trial court did not abuse its discretion in allowing the state to cross-examine Scruggs on this issue.

6. Scruggs’s fifth enumeration is that the trial court erred in denying his motion for new trial based on the fact that Gil “was threatened with jail if he refused to testify and was told that the only way he could recover his money was if [Scruggs] was convicted.”

Gil testified at the motion for new trial hearing that he had a new job at the time of the trial and he did not want to be tied up in court. Upon informing the prosecutor of this, Gil was taken before the trial court who advised him that he was under subpoena and that he did have to be present. Gil also testified that the assistant district attorney, in response to Gil’s inquiry about recovering the $300 taken from him, advised him that this was possible if repayment of the money was a condition of the sentence if Scruggs were found guilty.

Scruggs argues that not providing this information to him prior to trial amounts to a violation of Brady v. Maryland. Pretermitting the issue of whether such evidence is impeaching, in order to prevail on his Brady claim, Scruggs must show that “had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.” He has failed to make such a showing in this case, and there was no error in the trial court’s denial of his motion for new trial on this ground.

Judgment affirmed.

Smith, B J., and Dillard, J., concur.

       The aggravated assault convictions were merged into the armed robbery conviction for purposes of sentencing.

       Scruggs was acquitted of Count 4, possession of a firearm during commission of a felony.

       (Citation and footnote omitted.) Sexton v. State, 268 Ga. App. 736 (1) (603 SE2d 66) (2004). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Citation omitted.) Millirons v. State, 268 Ga. App. 644, 645 (1) (602 SE2d 346) (2004).

       The car was gray, with faded paint on the trunk.

       The second man with a gun, described by Gil as an African-American with gold teeth and twists in his hair, was not apprehended.

       The initial dispatch was for two African-American men in the car, but it was later updated to three men.

        Jackson v. Virginia, supra; see Wright v. State, 300 Ga. App. 32, 34 (2) (684 SE2d 102) (2009).

        Wright v. State, supra.

       (Punctuation and footnotes omitted.) Doe v. State, 306 Ga. App. 348, 349 (1) (702 SE2d 669) (2010).

       (Citations omitted; emphasis supplied.) Bramblett v. State, 239 Ga. 336, 337 (1) (236 SE2d 580) (1977).

       (Citations and punctuation omitted.) State v. Delaby, 298 Ga. App. 723, 724 (681 SE2d 645) (2009).

        Miller v. State, 224 Ga. 627, 630 (3) (163 SE2d 730) (1968) (citing OCGA § 17-7-54 and Thomas v. State, 71 Ga. 44, 48 (1883)); Bostic v. State, 173 Ga. App. 494 (1) (326 SE2d 849) (1985) (indictment need not specify time of day offense was committed).

       (Citations and punctuation omitted.) Fyfe v. State, 305 Ga. App. 322, 325-326 (1) (699 SE2d 546) (2010).

       (Citation and punctuation omitted.) Metz v. State, 284 Ga. 614, 618 (3) (669 SE2d 121) (2008).

       See Jackson v. State, 295 Ga. App. 427, 433 (5) (671 SE2d 902) (2009).

       (Footnote omitted.) Harper v. State, 300 Ga. App. 757, 769 (12) (686 SE2d 375) (2009).

       (Citations and punctuation omitted.) Metz v. State, supra at 616 (2).

       (Citations and punctuation omitted.) Daniels v. State, 306 Ga. App. 577, 585 (5) (703 SE2d 41) (2010). Accord Diaz v. State, 280 Ga. App. 413, 416 (634 SE2d 160) (2006).

       (Citation and punctuation omitted.) Diaz v. State, supra. Accord Mason v. State, 279 Ga. 636, 637-638 (2) (a) (619 SE2d 621) (2005).

        Page v. State, 296 Ga. App. 431 (1) (674 SE2d 654) (2009).

       (Citation and punctuation omitted.) Self v. State, 245 Ga. App. 270, 272-273 (2) (537 SE2d 723) (2000).

        Petty v. State, 283 Ga. 268, 269 (2) (658 SE2d 599) (2008).

        Self v. State, supra.

       (Footnotes omitted.) Wallace v. State, 295 Ga. App. 452, 454 (1) (671 SE2d 911) (2009).

       (Citation and punctuation omitted.) Lee v. State, 298 Ga. App. 630, 631 (1) (680 SE2d 643) (2009).

        Holland v. State, 221 Ga. App. 821, 825 (3) (472 SE2d 711) (1996), citing Carroll v. State, 261 Ga. 553, 554 (2) (408 SE2d 412) (1991).

       (Citations and punctuation omitted; emphasis supplied.) Lucas v. State, 215 Ga. App. 293, 295 (2) (450 SE2d 313) (1994). OCGA § 24-9-20 (b): “If a defendant testifies, he or she shall be sworn as any other witness and may be examined and cross-examined as any other witness.”

        Arnold v. State, 305 Ga. App. 45, 51 (4) (699 SE2d 77) (2010); Adcock v. State, 279 Ga. App. 473, 474 (2) (631 SE2d 494) (2006); Kimmons v. State, 267 Ga. App. 790, 791 (1) (a) (600 SE2d 783) (2004).

       373 U. S. 83, 87 (83 SC 1194, 10 LE2d 215) (1963).

       (Citation and punctuation omitted.) Morris v. State, 284 Ga. 1, 3 (2) (662 SE2d 110) (2008).


author: Andrews, Judge.

text:
    A11A0669.
    HUDSON v. THE STATE.
    (711 SE2d 95)
   Andrews, Judge.

Claude Hudson appeals after a jury found him guilty of aggravated sexual battery and child molestation. Hudson claims that the trial court erred in failing to merge the aggravated sexual battery and child molestation counts at sentencing and also erred in sentencing him to life on the aggravated sexual battery count. We agree with both claims of error and therefore vacate the sentences and remand for resentencing.

The evidence at trial, taken in the light most favorable to the verdict, was that the victim, J. L., who was ten years old at the time of trial, would often go to her great-grandparents’ house, where Hudson, J. L.’s great-uncle, was living at the time. After viewing a “good touch bad touch” video at school titled “Break The Silence,” J. L. approached the school counselor and told her that her Uncle Claude would take her into a bedroom and undress her and touch her “private” parts. J. L. told the counselor that this happened “multiple times.” J. L.’s father testified that when he talked to J. L. about these allegations, she told him that Hudson had touched her numerous times but she did not tell anyone because she was afraid.

J. L. testified at trial that when she went to her great-grandmother’s house, her Uncle Claude would take her back to his bedroom, take off all her clothes and put his fingers in her vagina. She said she never told anyone because Hudson told her not to and she was scared.

The State introduced evidence of a previous conviction of Hudson for child molestation involving his daughter, who was seven years old at the time. Hudson told the investigator that he had been drinking that day and while he was lying on the bed “kissing on” his daughter, “he may have accidentally touched her on the vagina.”

The jury found Hudson guilty on both counts. The court sentenced him to life on the aggravated sexual battery charge, with 25 years to serve and the remainder probated. The court sentenced him to thirty years on the child molestation charge, with ten years to serve and the remainder probated. Hudson now appeals from those sentences.

1. Although not enumerated as error, the evidence, as set out above, was sufficient for a rational trier of fact to find Hudson guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his first enumeration of error, Hudson contends that the convictions of child molestation and aggravated sexual battery merged as a matter of fact. OCGA § 16-6-22.2 (b) provides: “A person commits the offense of aggravated sexual battery when he or she intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person.” Count 1 of the indictment alleged that Hudson “did intentionally penetrate with a foreign object, to-wit: his finger, the sexual organ of [J. L.] without the consent of said victim in violation of OCGA § 16-6-22.2. . .

OCGA § 16-6-4 (a) provides: “A person commits the offense of child molestation when such person: (1) 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 indictment alleged that Hudson “did perform an immoral and indecent act to [J. L.], a child under 16 years of age, in that said accused did place his finger in and around the vagina of [J. L.] with intent to arouse and satisfy the sexual desires of said accused. ...”

In Drinkard v. Walker, 281 Ga. 211, 214 (636 SE2d 530) (2006), the Supreme Court of Georgia adopted the “required evidence” test, set forth in Blockburger v. United States, 284 U. S. 299, 304 (52 SC 180, 76 LE 306) (1932). Under this test, “the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” (Punctuation omitted.) Id. at 215.

In Dickerson v. State, 304 Ga. App. 762 (697 SE2d 874) (2010), a case directly on point, this Court held that “the touching of the child’s genital area for purposes of the child molestation conviction was in connection with the penetration required for the aggravated sexual battery conviction, so [the two counts] should have been merged for sentencing.” Id. at 766-767. See also Gunn v. State, 300 Ga. App. 229, 230-231 (684 SE2d 380) (2009) (sexual battery by touching the victim’s genital area merged with child molestation by touching the victim’s vagina, and sexual battery by touching the victim’s breast merged with child molestation by touching the victim’s breast); Davenport v. State, 277 Ga. App. 758, 761 (627 SE2d 133) (2006) (conviction for aggravated sexual battery, based on the defendant penetrating the victim’s vagina with his finger, merged as a matter of fact with conviction for child molestation, based on the defendant touching the victim’s genital area with his hand); Shamsuddeen v. State, 255 Ga. App. 326, 327-328 (565 SE2d 544) (2002) (finding that the offenses of aggravated sexual battery and child molestation were required to be merged since the only evidence that the defendant touched the victim’s vagina was in connection with his penetration of her vagina). Compare Aaron v. State, 275 Ga. App. 269, 270 (620 SE2d 499) (2005) (aggravated sexual battery and child molestation counts did not merge because the aggravated sexual battery count charged Aaron with “intentionally penetrating with his fingers the sexual organ of the victim,” and the child molestation count charged him with “rubbing the victim’s female sex organ with his hand”) (punctuation omitted); Childers v. State, 257 Ga. App. 377, 378 (571 SE2d 420) (2002) (no merger because convictions were supported by separate facts: aggravated sexual battery conviction was supported by evidence that defendant penetrated victim’s vagina with his fingers, and child molestation conviction was supported by evidence that defendant also touched victim “down in between her legs”).

The State argues that because the victim testified to multiple instances of the same conduct, the sentences could be based on the crimes occurring on separate occasions. This argument is without merit.

“Where an averment in one count of an accusation or indictment distinguishes it from all other counts, either by alleging a different set of facts or a different date which is made an essential averment of the transaction, the State may on conviction punish the defendant for the various crimes.” Salley v. State, 199 Ga. App. 358, 362 (405 SE2d 260) (1991). In Salley, “the averments of each count referred] to a different period of time[,] hence same is made an essential averment of the transaction, and each count of the indictment is distinguishable.” Id.

Here, the two charges were indistinguishable because “all of the averments, including date (which was not made an essential element), victim, and description of defendant’s conduct constituting the offense were identical. This lack of particularization permits the imposition of only one sentence.” Hilliard v. State, 193 Ga. App. 54 (387 SE2d 21) (1989), citing LaPan v. State, 167 Ga. App. 250, 253 (4) (305 SE2d 858) (1983). In LaPan, this Court held that “in none of the [counts in the indictment] was the date made an essential element. Since all the dates alleged fall within the period of the statute of limitation, only one sentence can be imposed.” Id. at 253-254.

Therefore, Hudson’s conviction for aggravated sexual battery should have merged with the conviction for child molestation for purposes of sentencing. Accordingly, the sentences are vacated, and the case is remanded to the trial court for resentencing.

3. In light of our holding in Division 1, we need not address Hudson’s remaining enumeration of error which is that, under the statute in effect at the time of his sentencing, the maximum sentence for aggravated sexual battery was 20 years. We note, however, that the State concedes that the statute in effect at the time the crimes were committed does not authorize the life sentence imposed by the trial court.

Decided May 13, 2011.

Mark A. Begnaud, for appellant.

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

Judgment affirmed, sentences vacated, and case remanded for resentencing.

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


text:
    A11A0715.
    PISTACCHIO et al. v. FRASSO.
    (711 SE2d 98)
   Andrews, Judge.

The trial court dismissed a notice of appeal filed by Michael A. Pistacchio and Marylou Harris (the appellants) on the basis that they failed to timely file a transcript they designated as necessary to complete the appellate record for transmission to this Court. At issue in the appellants’ appeal from the dismissal is whether the court properly exercised its discretion under OCGA § 5-6-48 to dismiss the appeal. Because the court failed to make an express finding under OCGA § 5-6-48 that the delay in filing the transcript was unreasonable, there was no basis for the court to exercise its discretion, and we are unable to review the court’s judgment for any abuse of discretion. Accordingly, we vacate the court’s judgment and remand the case for reconsideration.

Where the notice of appeal designates for inclusion in the appellate record a transcript of the evidence and proceedings in the tried court, it is the appellant’s duty to have the court reporter prepare the transcript at the appellant’s expense and file the transcript with the clerk of the trial court within 30 days after filing the notice of appeal, unless the appellant obtains an extension of time. OCGA §§ 5-6-37; 5-6-39; 5-6-41 (c), (e); 5-6-42. The trial court is authorized to dismiss an appeal for the appellant’s failure to timely file the designated transcript when the court finds all three criteria set forth in OCGA § 5-6-48 (c). First, the trial court must make a threshold finding that the delay in filing was unreasonable, which “refers principally to the length and effect of the delay.” Sellers v. Nodvin, 262 Ga. 205, 206 (415 SE2d 908) (1992). In considering this criteria, “it should be remembered that the time provided for filing the transcript or record is not jurisdictional, but merely a means of avoiding unreasonable delay so that the case can be presented on the earliest possible calendar in the appellate courts.” Id. Second and third, the tried court must find that the unreasonable delay in filing was inexcusable in that it was caused by the appellant. Baker v. Southern R. Co., 260 Ga. 115, 116 (390 SE2d 576) (1990); Sellers, 262 Ga. at 206. “In passing upon these issues, the trial court has discretion; however, it is a legal discretion which is subject to review in the appellate courts.” Young v. Climatrol Southeast Distrib. Corp., 237 Ga. 53, 55 (226 SE2d 737) (1976).

Decided May 13, 2011.

Winter, Capriola & Zenner, Richard J. Capriola, Eric B. Coleman, Jami M. Kohn, for appellants.

Miles, Patterson, Hansford & Tallant, Dana B. Miles, Wendy W. Kraby, for appellee.

The trial court’s order dismissing the present appeal for failure to timely file the designated transcript expressly finds that the delay in filing the transcript was inexcusable and was caused by the appellants’ lack of diligence, but no express finding was made on the threshold issue of whether the delay was unreasonable. Although the trial court’s order recognizes the issue of whether the delay was unreasonable, it finds only that the appellants failed to produce evidence that the delay was not unreasonable. This is not an express finding by the court that the delay was unreasonable. In the absence of this finding, the trial court had no discretion to dismiss the appeal, and we are unable to review the exercise of its discretion. Baker, 260 Ga. at 116; Wood v. Notte, 238 Ga. App. 748, 749 (519 SE2d 923) (1999). Accordingly, we remand the case to the trial court for findings on whether the delay in filing was unreasonable. Baker, 260 Ga. at 116.

Judgment vacated and case remanded.

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


text:
    A11A0291.
    DOCKERY v. THE STATE.
    (711 SE2d 100)
   Andrews, Judge.

Crystal Faye Dockery appeals after a jury found her guilty of child molestation, enticing a child for indecent purposes, and furnishing alcohol to a minor. Dockery claims that the evidence was insufficient to support the verdicts. After reviewing the record, we conclude there was no error and affirm.

The evidence at trial, taken in the light most favorable to the verdict, was that Charles Dockery, defendant’s husband, went to the victim’s home one night and asked her if she wanted to help him paint. The victim, who was 11 years old at the time, agreed to go with him. When they arrived at the Dockerys’ home, Charles went to the liquor store and left the victim alone with the defendant. The victim testified that Crystal Dockery gave her a bluish folder to read. She said that the folder contained “porn.” The victim said that Dockery gave her alcohol to drink and also gave her red thong underwear. Dockery asked the victim if she had ever had sex.

At some point, Charles Dockery came home. The victim stated that he pulled down her pants and then offered her $10 if she would put on the red thong underwear. The victim testified that Dockery also pulled down the red thong underwear after she put it on and then kissed her on the lips.

The victim became scared and told the Dockerys that it was late and she had to go home. The victim’s mother testified that when the victim came home her eyes were bloodshot and she could smell alcohol on her breath. The mother said that the victim told her that Charles Dockery gave her $10 to put on the red thong underwear. The mother went over to the Dockerys and told Crystal not to come near her daughter again. The mother said that Crystal “was pretty drunk” when she got there.

When officers searched the Dockerys’ house, they found a blue spiral notebook containing pornographic stories, a pornographic magazine, and other pornographic photographs. An officer read pornographic material from the notebooks to the jury.

The jury found Dockery guilty of all charges. This appeal followed.

When reviewing a challenge to the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citation and punctuation omitted.) Robinson v. State, 296 Ga. App. 561, 561-562 (675 SE2d 298) (2009).

1. Dockery was charged with aiding and abetting Charles Dock-ery in several counts of child molestation and in enticing a child for indecent purposes. She claims that the evidence was insufficient to find her guilty of enticing a child for indecent purposes because there was no evidence that she aided and abetted Charles Dockery in convincing the victim to come to their home. Dockery also argues that there was no evidence that she aided or abetted her husband in the acts that formed the basis for the charges of child molestation.

The law states: “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).

OCGA § 16-2-20 provides: “Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. A person is concerned in the commission of a crime only if he: . . . [intentionally aids or abets in the commission of the crime.” OCGA § 16-2-20 (a) and (b) (3).

A defendant is a party to a crime if he intentionally aids or abets the commission of the crime, or advises, encourages, hires, counsels, or procures another to commit it. OCGA § 16-2-20 (b). Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime. [For instance], where a getaway driver waited for his co-defendant to return to the car, the driver was also guilty of his co-defendant’s crimes. Jackson v. State, 274 Ga. App. 279, 281 (617 SE2d 249) (2005).

(Citations and punctuation omitted.) Romero v. State, 307 Ga. App. 348, 349 (705 SE2d 195) (2010).

Further,

if the defendant had knowledge of the intended crime and shared in the criminal intent of the principal actor, he is an aider and abettor. Hence, if the defendant was at the scene and did not disapprove or oppose the commission of the offense, a trier of fact may consider such conduct in connection with prior knowledge and would be authorized to conclude the defendant assented to the commission of the offense, that he lent his approval to it, thereby aiding and abetting the commission of the crime.

(Punctuation omitted.) Romero, supra at 349-350.

Here, the evidence was that when Charles Dockery brought the victim back to his home, he left her with Crystal Dockery who admits to giving the victim the thong panties. There was also evidence that Dockery gave the victim alcohol, and gave the victim pornographic materials to read before Charles Dockery came home. The victim testified that Crystal Dockery was close by on the couch when Charles Dockery pulled down her pants, tried to kiss her, pulled down her underwear and offered her money to put on the thong.

Accordingly, there was evidence that Crystal Dockery had prior knowledge of the intended crimes, shared in the intent of Charles Dockery to entice the victim to their home, and was present for the crimes of child molestation.

Whether circumstances were sufficient in this case to exclude every reasonable hypothesis except that of defendants’ guilt was a question for the jury. It is only when the evidence is insupportable as a matter of law that the jury’s verdict may be disturbed, even where the evidence is entirely circumstantial.

Romero, supra at 351. The evidence, as set out above, was sufficient to support Crystal Dockery’s convictions of aiding and abetting Charles Dockery in enticing a child for indecent purposes and of child molestation. See Jackson v. Virginia, supra.

2. Dockery contends that the evidence was insufficient to support her conviction for furnishing alcohol to a minor. We disagree. Although Dockery denied the charge in her statement to police, the victim testified at trial in detail about Dockery giving her alcohol to drink. The victim’s mother testified that when the victim returned home, her eyes were bloodshot and she “could smell the alcohol on her breath.” Accordingly, there was sufficient evidence to support the conviction of furnishing alcohol to a minor. Jackson v. Virginia, supra.

3. Dockery argues that the evidence was insufficient to support her conviction of child molestation by providing the victim with sexually explicit stories. The victim testified that Dockery gave her a blue notebook containing these stories, and officers found this notebook when searching the Dockerys’ house. Crystal Dockery does not deny that the victim read the stories, but claims that the victim found the notebook and began reading it.

“It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (Punctuation omitted.) Fox v. State, 289 Ga. 34 (709 SE2d 202) (2011). Viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient for a rational jury to find Dockery guilty beyond a reasonable doubt of the crime charged. See Jackson v. Virginia, supra.

Judgment affirmed.

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

Decided May 16, 2011.

Sean J. Lowe, for appellant.

Herbert E. Franklin, Jr., District Attorney, Alan C. Norton, Assistant District Attorney, for appellee.


text:
    A11A0417.
    GRAPEFIELDS, INC. v. KOSBY.
    (710 SE2d 816)
   Andrews, Judge.

As a stockholder of Grapefields, Inc., the Lee S. Kosby Trust (acting by Lee S. Kosby, Trustee) asserted its right under OCGA § 14-2-1602 to inspect and copy Grapefields’ corporate records. After Grapefields failed to respond, Kosby applied pursuant to OCGA § 14-2-1604 to the superior court for an order permitting inspection and copying of the records and imposition of attorney fees. The superior court ordered inspection and copying of the demanded records, and awarded attorney fees against Grapefields pursuant to OCGA § 14-2-1604 (c) in the amount of $25,220. Grapefields appeals from the award of attorney fees. For the following reasons, we affirm.

Under OCGA § 14-2-1604 (a) and (b), if a corporation improperly refuses a shareholder’s demand under OCGA § 14-2-1602 to inspect and copy corporate records, the superior court, upon application by the shareholder, may order the corporation to permit inspection and copying of the demanded records. Barnett v. Fullard, 306 Ga. App. 148, 150 (701 SE2d 608) (2010). Under OCGA § 14-2-1604 (c),

[i]f the court orders inspection and copying of the records demanded, it shall also order the corporation to pay the shareholder’s costs (including reasonable attorneys’ fees) incurred to obtain the order unless the corporation proves that it refused inspection in good faith because it had a reasonable basis for doubt about the right of the shareholder to inspect the records demanded.

After ordering Grapefields to permit inspection and copying of the demanded records, the superior court held a hearing to consider the award of attorney fees pursuant to OCGA § 14-2-1604 (c), and entered an order awarding Kosby $25,220 as reasonable attorney fees pursuant to OCGA § 14-2-1604 (c). In the order awarding attorney fees, the superior court considered an affidavit filed by Kosby’s attorney prior to the hearing stating the attorney fees expended to obtain the inspection order and a written response to the affidavit filed by Grapefields. Although the court noted in the order that a hearing was held on the attorney fees issue, other than the affidavit and the response, the court did not refer to any evidence presented at the hearing. The transcript of the hearing was omitted by Grapefields from the appellate record. Even if no evidence was presented at the hearing, we assume on this record that Grapefields was given the opportunity for an evidentiary hearing to confront and challenge the value and need for the asserted attorney fees, but waived the right. See Tavakolian v. Agio Corp., 304 Ga. App. 660, 663-664 (697 SE2d 233) (2010); compare Motor Warehouse v. Richard, 235 Ga. App. 835, 836 (510 SE2d 600) (1998).

Decided May 16, 2011.

Because OCGA § 14-2-1604 (c) provides in mandatory language that the court “shall” award attorney fees unless the inspection was refused in good faith, the award of attorney fees will be affirmed on appeal if there is any evidence to support it unless, as a matter of law, the corporation proved that it refused inspection in good faith. See Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527, n. 3 (360 SE2d 566) (1987). Grapefields did not contend that attorney fees were improperly awarded because it refused inspection in good faith. Rather, it contended that some of the awarded attorney fees were not “incurred to obtain the order” permitting inspection of the records, as required by OCGA § 14-2-1604 (c), or otherwise were not reasonable.

In support of these contentions, Grapefields argues that Kosby’s affidavit stating the attorney fees shows on its face: (1) that legal research conducted by the attorney was not “incurred to obtain the order” but was for unrelated matters; (2) that the attorney’s consultations with a third party involved review of documents or unrelated matters and was not “incurred to obtain the order”; and (3) that some of the stated attorney fees were unreasonable because they appeared to involve performance of clerical rather than legal services. Grapefields may have been able to demonstrate these contentions by cross-examination of the attorney who provided the affidavit at an evidentiary hearing, but, as noted above, it waived that opportunity and relied solely on a written response to the affidavit. The affidavit does not clearly show on its face that some of the asserted attorney fees were unreasonable or were incurred for matters unrelated to obtaining the order. Applying the any evidence standard of review, we find that there was some evidence to support the superior court’s award of attorney fees in the amount of $25,220.

Judgment affirmed.

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

John D. Stone, for appellant.

Freisem, Macon, Swann & Malone, C. Cyrus Malone III, for appellee.


author: PHIPPS, Presiding Judge.

text:
    A11A0427.
    KENNEDY v. KENNEDY.
    (711 SE2d 103)
   PHIPPS, Presiding Judge.

Jesse Kennedy appeals from an order that established child custody, visitation, and support, as well as awarded attorney fees. He challenges those portions of the order that obligated him to pay child support and attorney fees. For reasons that follow, we affirm in part, vacate in part (with regard to the attorney fees award), and remand with direction.

As an initial matter, we note the paucity of the record before us. Pertinently, in his notice of appeal, Kennedy directed the trial court clerk to include in the appellate record “only the following documents: Order On Custody, Visitation and Child Support; . . . and Child Support Worksheets.” Our consideration of the contentions presented by Kennedy — who, as the appellant, has the burden to affirmatively show error by the record — is affected by the meagerness of the record.

According to the trial court’s order on appeal, Kennedy and his wife were divorced in Alabama, and in the final divorce decree, the Alabama court deferred ruling on issues of custody and support for their child because the child no longer lived in that state. Thereafter, the child’s mother filed the underlying action in the Superior Court of Meriwether County, seeking a determination of those issues. Kennedy filed no responsive pleadings, but he appeared at the hearing. The order being appealed here states that, “[a]fter hearing and considering the evidence presented,” the court awarded to the mother custody of the parties’ then three-year-old child, set forth visitation parameters, obligated Kennedy to pay child support to the mother, and summarily ordered him to pay the mother’s attorney fees. Attached to the court’s order were a child support worksheet and several schedules.

1. In several claims of error, Kennedy attacks that portion of the order obligating him to pay child support. To each challenge, the mother counters that Kennedy has failed to carry his burden of demonstrating reversible error, given the absence of a hearing transcript from the appellate record.

(a) Kennedy takes issue with the fact that the child support worksheet showed that the mother had no monthly gross income. He contends that the trial court erred “in failing to make findings of fact regarding a deviation based upon zero income of [the mother].”

The guidelines for computing the amount of child support are found in OCGA § 19-6-15 and must be considered by any court setting child support. “The child support guidelines . . . shall apply as a rebuttable presumption in all legal proceedings involving the child support responsibility of a parent.” OCGA § 19-6-15 (c) (1). Although this presumptive amount of child support is rebuttable, “deviations subtracted from or increased to the presumptive amount of child support (must be) . . . supported by the required findings of fact and application of the best interest of the child standard . . . (and) shall be entered on the Child Support Schedule E — Deviations.” OCGA § 19-6-15 (b) (8).

Kennedy has not shown that a determination that the mother had no monthly gross income constituted a “deviation” that required the trial court to make findings of fact. While certain written findings of fact are mandated by OCGA § 19-6-15 where there is a child support “deviation,” the statute contemplates that such a “deviation” is an increase or decrease from the “presumptive amount of child support.”

Next, Kennedy points out that gross income may be imputed to a parent. Indeed, OCGA § 19-6-15 (f) (4) (A) provides for such, inter alia, “if a parent fails to produce reliable evidence of income . . . for determining current ability to pay child support. . . and the court or the jury has no other reliable evidence of the parent’s income or income potential.” Consequently, any evidentiary challenge by Kennedy to the trial court’s determination that the mother had no monthly gross income would require consideration of the evidence presented during the hearing on this matter. However, Kennedy elected not to include in the appellate record a transcript of the hearing, and he did not attempt to reconstruct the proceedings in accordance with OCGA § 5-6-41 (g) and (i). When a transcript of the evidence is necessary and the appellant omits it from the record or fails to submit a statutorily authorized substitute, we must assume that the evidence supported the contested determination — here, that the mother had no monthly gross income.

Accordingly, this contention provides no basis for disturbing the child support ruling.

(b) Kennedy contends that the trial court erred “in allowing a deviation for child cáre costs without proof thereof.” Kennedy complains that the trial court made no findings of fact regarding child care costs; he further asserts that no proof of actual cost or payment was shown to the trial court as required by OCGA § 19-6-15 (h) (1) (D). This contention fails for two reasons.

First, the record shows no “deviation” for child care costs, as the term “deviation” is contemplated by OCGA § 19-6-15, so as to trigger the requirement of written findings of fact. Instead, the child support worksheet, together with the Schedule D that accompanies that worksheet, show that the father’s basic child support obligation was adjusted for the mother’s work related child care costs. And this adjusted amount was entered upon the child support worksheet as the “presumptive amount of child support.” Given these circumstances, Kennedy has failed to show that the trial court was required to make findings of fact with respect to the adjustment for the cited work related child care costs.

Second, nothing in OCGA § 19-6-15 (h) (1) (D), cited by Kennedy, provides for an outcome in his favor at this appellate stage. That Code provision states, in pertinent part, that “[i]f child care is or will be provided by a person who is paid for his or her services, proof of actual cost or payment shall be shown to the court before the court includes such payment in its consideration.” Kennedy’s claim that there was no such proof submitted to the trial court fails as unsupported, given the scant appellate record he compiled.

Consequently, this contention provides no basis for disturbing the child support ruling.

(c) Kennedy contends that the trial court “erred in omitting [his] obligation of health care from the Child Support Worksheets.”

Specifically, Kennedy points out that, although the court’s order obligated him to “provide health care insurance for the child,” the Schedule D that was attached to the child support worksheet does not set forth any cost that he would incur for maintaining health insurance. Kennedy relies on OCGA § 19-6-15 (b) (6), which states that “[t]he monthly cost of health insurance premiums . . . shall be entered on the Child Support Schedule D — Additional Expenses.” In addition, he relies on OCGA § 19-6-15 (h), which provides that “additional expenses for the child’s health insurance premiums . . . shall be included in the calculations to determine child support” and that

[t]he total amount of the cost for the child’s health insurance premium . . . shall be included in the Child Support Schedule D — Additional Expenses and written order of the court together with the amount of the basic child support obligation.

Once again, Kennedy’s decision not to reveal to this court what evidence was presented at the hearing proves fatal to his contention. As the mother counters, without a transcript, this court cannot determine even whether there was any monthly cost to Kennedy for health care insurance for the child; and if there was no cost to Kennedy, then no amount would be required to be entered on Schedule D.

Moreover, Kennedy has disregarded OCGA § 19-6-15 (m) (1), which states in pertinent part:

Schedules and worksheets shall be prepared by the parties for purposes of calculating the amount of child support. Information from the schedules shall be entered on the child support worksheet. The child support worksheet and, if there are any deviations, Schedule E shall be attached to the final court order or judgment[.]

The Schedule D, with which Kennedy takes issue, states on its face that it was prepared by the mother’s counsel. The record before us does not show, and Kennedy does not assert, that he, too, prepared and presented to the court a Schedule D showing the amount that health insurance premiums would cost him. The record before us does not show, and Kennedy does not assert, that he otherwise provided any evidence of a cost that he would incur for health insurance premiums and that consequently should have been included on the Schedule D. And the record before us does not show, and Kennedy does not assert, that he objected to the trial court’s consideration of the Schedule D which he now contests.

By electing to omit from the appellate record the transcript from the hearing, Kennedy has overlooked also OCGA § 19-6-15 (d). It states:

In the event of a hearing or trial on the issue of child support, the guidelines enumerated in [OCGA § 19-6-15] are intended by the General Assembly to be guidelines only and any court so applying these guidelines shall not abrogate its responsibility in making the final determination of child support based on the evidence presented to it at the time of the hearing or trial.

Notably, Kennedy makes no assertion that he was aggrieved by the fact that Schedule D does not set forth any amount for health insurance premiums. Indeed, the record shows that, in the order obligating Kennedy to pay a certain amount each month as child support, the trial court set forth a figure as the presumptive amount of child support, next “elected to deviate from the presumptive amount of support due to the Defendant’s obligation hereunder to provide health care insurance for the child,” then ordered Kennedy to pay an amount less than the presumptive amount. Kennedy makes no argument with respect to the downward deviation.

Limiting our holding to arguments raised, we conclude that Kennedy has demonstrated no basis for disturbing the child support ruling.

2. Contesting the attorney fees award to the mother, Kennedy points out that the trial court’s order provided no statutory basis for the award and did not include any findings in support of the award.

“Generally, an award of attorney fees is not available unless supported by statute or contract.” The appellate record does not disclose the nature of any request for attorney fees, nor does it demonstrate any legal or evidentiary basis authorizing an attorney fees award. The mother has offered neither evidence nor authority supportive of her attorney fees award. Instead, she “concedes that the Court failed to make findings of fact sufficient to support an award of attorney! ] fees and that the case should be remanded to the Trial Court for an explanation of the statutory basis for the award and any findings necessary to support it.”

Under these circumstances, we will not presume that the attorney fees award was authorized, and therefore, we vacate that portion of the trial court’s order granting the award. This case is remanded on the issue of attorney fees, with any award thereon to include an explanation of the legal basis for it and any findings necessary to support it.

Decided May 16, 2011.

Anthony M. Zezima, for appellant.

Alan W. Connell, for appellee.

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

Andrews and McFadden, JJ., concur.

       Kennedy also designated that an “Income Deduction Order” be included, which it was. That order is not relevant, however, to any issue on appeal.

        Sebby v. Costo, 290 Ga. App. 61, 62 (658 SE2d 830) (2008).

       See OCGA § 19-6-15 (m) (contemplating preparation of worksheets and schedules for purposes of calculating child support amount); Stowell v. Huguenard, 288 Ga. 628 (706 SE2d 419) (2011) (citing OCGA § 19-6-15 (m) (1) and noting that the child support guidelines require the trial court to use a child support worksheet, which should be attached to its final court order thereon).

        Stowell, supra (citation and punctuation omitted; emphasis supplied).

       OCGA § 19-6-15 (c) (2) (E); see Holloway v. Holloway, 288 Ga. 147, 148-149 (1) (702 SE2d 132) (2010) (citing OCGA § 19-6-15 (c) (2) (E)).

       See OCGA § 19-6-15 (a) (10) (defining “deviation”) and (a) (19) (defining “presumptive amount of child support”); Johnson v. Johnson, 284 Ga. 366, 367 (1) (667 SE2d 350) (2008) (“trial court is only required to make findings of fact if a deviation is applied altering the presumptive child support amount”). Cf. OCGA § 19-6-15 (a) (12) (defining “gross income” as “all income to be included in the calculation of child support as set forth in [OCGA § 19-6-15 (f)]”); see also OCGA § 19-6-15 (f) (1) (A) (“gross income” of each parent shall be determined “in the process of setting the presumptive amount of child support”) (emphasis supplied).

       See Williams v. Marchant, 304 Ga. App. 631 (697 SE2d 288) (2010); Sebby, supra.

       See footnotes 5 and 6, together with the text they accompany.

       OCGA § 19-6-15 (a) (24) (defining “work related child care costs” as expenses for the care of the child that are “due to employment of either parent,” as well as “costs associated with a parent’s job search or the training or education of a parent necessary to obtain a job or enhance earning potential... if the parent proves by a preponderance of the evidence that the job search, job training, or education will benefit the child being supported”).

       See Stowell, supra at 629 (explaining that, once the basic child support obligation is determined and each parent’s pro rata percentage of that amount is calculated, “[t]he court must then find the adjusted child support obligation amount for each parent by adding to each parent’s pro rata share any health related insurance or work related child care costs”).

       See footnotes 5 and 6, together with the text they accompany.

       (Emphasis supplied.)

       See Williams, supra; Sebby, supra.

       OCGA § 19-6-15 (h) (2) (A) (iii).

       See, e.g., OCGA § 19-6-15 (h) (2) (A) (i) providing that any “[playments made by a parent’s employer for health insurance and not deducted from the parent’s wages shall not be included”).

       (Emphasis supplied.) See Spurlock v. Dept. of Human Resources, 286 Ga. 512, 516 (3) (690 SE2d 378) (2010) (OCGA § 19-6-15 (d) serves to emphasize that the qualitative determinations of whether special circumstances make the presumptive amount of child support excessive or inadequate and whether deviating from the presumptive amount serves the best interest of the child are committed to the discretion of the court).

       See generally OCGA § 19-6-15 (i) (2) (C) (allowing deviation for health related insurance) and (i) (3) (allowing for deviations “for reasons in addition to those established under this subsection when the court or the jury finds it is in the best interest of the child”).

        Padilla v. Padilla, 282 Ga. 273, 274 (1) (646 SE2d 672) (2007) (citation and punctuation omitted).

       See OCGA § 5-6-42 (“If the appellant designates any matter to be omitted from the record on appeal as provided in Code Section 5-6-37, the appellee may, within 15 days of serving of the notice of appeal by appellant, file a designation of record designating that all or part of the omitted matters be included in the record on appeal.”); Court of Appeals Rule 25 (b) (1) (appellee’s brief shall point out any material inaccuracy or incompleteness of appellant’s statement of facts and any additional statement of facts deemed necessary), (c) (2) (ii) (a contention that certain matters are not supported by the record may be answered by reference to particular pages where they appear).

       See Holloway, supra at 150 (2) (reversing attorney fees award, noting that if a trial court fails to make findings of fact sufficient to support an award of attorney fees under either OCGA § 19-6-2 or § 9-15-14, the case must be remanded to the trial court for an explanation of the statutory basis for the award and any findings necessary to support it); Spurlock, supra at 515 (3) (lack of mandatory written findings overcomes the presumption of regularity); Padilla, supra at 274-275 (1) (reversing attorney fees award, where trial court’s order set forth no explicit statutoiy basis for the award and appellee offered no authority supportive of the award); Sinkwich v. Conner, 288 Ga. App. 320 (654 SE2d 182) (2007) (where record did not contain petition for attorney fees, the evidence considered by the trial court, or a transcript of the attorney fees hearing, the attorney fees award could not be sustained, and the case was remanded on issue of attorney fees); Cotting v. Cotting, 261 Ga. App. 370, 372 (2) (582 SE2d 527) (2003) (where appellate court was “in the dark” regarding trial court’s intent and basis for ruling on attorney fees, the attorney fees award could not be properly reviewed and the case was remanded for clarification of the court’s award). Cf. Parekh v. Wimpy, 288 Ga. App. 125, 127 (6) (653 SE2d 352) (2007) (rejecting, for lack of a transcript, the contention that the trial court erred in allowing jury to award attorney fees).