text:
    A14A0362.
    DAVIS v. THE STATE.
    (757 SE2d 443)
   ELLINGTON, Presiding Judge.

A Bibb County jury found Joseph Davis guilty beyond a reasonable doubt of aggravated assault, OCGA § 16-5-21 (a) (1) (with intent to rape); aggravated sexual battery, OCGA § 16-6-22.2; and burglary, OCGA § 16-7-1 (2005). Following the denial of his motion for a new trial, Davis appeals, contending that the evidence was insufficient to support his convictions and that he received ineffective assistance of counsel. For the reasons explained below, we affirm.

1. Davis contends that the State failed to prove that he entered the victim’s house without her consent, that he intended to rape her, and that the victim did not consent to their sexual activity. As a result, he contends, the evidence was insufficient to sustain his convictions for burglary, aggravated assault, and aggravated sexual battery.

On appeal from a criminal conviction, the appellate court

view[s] the evidence in the light most favorable to the verdict [,] and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, [the appellate court] must uphold the jury’s verdict.

(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004). Moreover, “[t]he testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8 (2005).

Viewed in the light most favorable to the jury’s verdict, the evidence shows the following. The victim testified that, at approximately 4:00 a.m. on May 4, 2000, she was in bed asleep when a man got into her bed and began choking her. She could not see the man’s face and did not know who he was. The intruder told her that he had been watching her for some time, that he was going to have sex with her, and that if she screamed he would crush her skull or hurt her family. He put a pillow over her face so that she could not look at him. He unfastened his belt and pushed his pants down, but he ejaculated before achieving penile penetration. He angrily told the victim that he “messed up” because she made him feel sorry for her, then he kissed her and inserted his fingers into her vagina. After threatening to come back and kill the victim if she called the police, the intruder left. The victim then found that the back door was open, and a glass pane was missing from beside the door knob. At trial, the victim affirmatively denied being acquainted with Davis, inviting him into her home, or consenting to any sexual activity.

The victim’s landlord testified that, at the time of the attack, he had been renovating the building in which the victim had an apartment and that Davis lived in an adjacent building and occasionally worked odd jobs for him in the victim’s apartment building.

At trial, Davis testified that he became acquainted with the victim while living nearby and working in her apartment building. According to Davis, he and the victim consumed methamphetamine together in her apartment during the night of the alleged attack, and he ejaculated when they were engaged in consensual foreplay. He denied entering the victim’s apartment without her consent, having the intent to rape her, and touching her vagina without her consent.

Although disputed, the evidence authorized the jury to find that Davis entered the victim’s home with the intent to rape her (a felony), choked her and threatened her, also with the intent to rape her, and penetrated her vagina with his fingers. These facts satisfied the essential elements of the crimes charged. Mattox v. State, 305 Ga. App. 600, 603 (1) (699 SE2d 887) (2010); Coleman v. State, 284 Ga. App. 811, 812-813 (1) (644 SE2d 910) (2007); Whitehill v. State, 247 Ga. App. 267, 268 (543 SE2d 470) (2000); Mangham v. State, 234 Ga. App. 567, 570 (2) (507 SE2d 806) (1998); see OCGA §§ 16-7-1 (a) (2005) (“A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another[.]”); 16-5-21 (a) (1) (“A person commits the offense of aggravated assault when he or she assaults . . . [w]ith intent... to rape[.]”); 16-6-22.2 (2005) (“A person commits the offense of aggravated sexual battery when [the person] intentionally penetrates . . . the sexual organ or anus of another person without the consent of that person” with “any article or instrument other than the sexual organ of a person.”).

2. Davis contends that his counsel provided ineffective assistance in several respects.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)[.] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). See also Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009) (In analyzing the prejudice element, “[t]he question is whether there is a reasonable probability that, absent [counsel’s] errors, the factfinder would have had a reasonable doubt respecting guilt.”) (citation and punctuation omitted).

As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel. Matters of trial tactics, even if they appear in hindsight to be questionable, are grounds to find counsel ineffective only if the tactical decision is so patently unreasonable that no competent attorney would have chosen it.

(Citations and punctuation omitted.) Dyer v. State, 295 Ga. App. 495, 498 (1) (672 SE2d 462) (2009). Failure to satisfy either prong of the Strickland v. Washington standard is fatal to an ineffective assistance claim. Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995); Ponder v. State, 201 Ga. App. 388, 389 (1) (411 SE2d 119) (1991). As the appellate court, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. at 76.

(a) Davis contends that his counsel provided ineffective assistance by failing to call his uncle (and roommate) to testify that the victim had a prior relationship with Davis, to impeach the victim’s testimony that she was not acquainted with Davis and to support Davis’s testimony that the victim consented to his entry into her home and to his sexual advances. The record shows that nearly seven years elapsed between Davis’s trial and the hearing on his motion for a new trial, during which the witness died. See Reynolds v. State, 267 Ga. App. 148, 150 (1) (598 SE2d 868) (2004) (Where a defendant fails to call a witness at the motion for new trial hearing to substantiate his claim that the witness’s testimony would have been material to his or her defense, it is impossible for the defendant to show there is a reasonable probability the results of the proceedings would have been different if counsel had called the witness at trial.). Even if we accept Davis’s testimony at the hearing as a proffer of what the witness would have testified to at trial, he has shown only that the witness would have testified that Davis and the victim interacted frequently in the course of his work at the apartment building. Davis also testified that his trial counsel had talked to the witness before trial but did not subpoena him because the witness said that he wanted to have nothing to do with Davis’s trial; instead, his counsel called Davis’s brother as a witness at trial regarding Davis’s interactions with the victim. Thus, the record shows that counsel’s decision not to subpoena the witness was a matter of trial tactics.

[Decisions regarding which witnesses to call and all other tactical and strategic decisions are the exclusive province of the lawyer after consultation with the client. And decisions regarding matters of trial strategy, whether wise or unwise, do not constitute ineffective assistance of counsel.

(Footnotes omitted.) Id. at 151 (1). Accordingly, Davis failed to carry his burden of showing ineffective assistance of counsel on this basis.

(b) Davis contends that his counsel provided ineffective assistance by failing to request a curative instruction after the victim referred to his incarceration. The reference occurred when the victim was testifying about an incident when she encountered Davis at a gas station two-and-a-half years after the attack, before he had been identified as the intruder who attacked her, and she mentioned that, at the time, she always carried a copy of the incident report in her purse. When the prosecutor questioned the victim about why she had a copy of the incident report in her purse on that day, she answered, “I don’t [carry a copy anymore] because I know [Davis has] been in jail for a year [awaiting trial]. But before then . . .” Davis’s counsel objected and moved for a mistrial, and the trial court denied the motion. His counsel then asked for a curative instruction, but, after counsel and the court discussed the proper wording of an instruction, his counsel concluded that the court’s explanation would do more damage to the defense than the victim’s comment standing alone. A strategic decision not to draw the jury’s attention to unfavorable testimony through the giving of a curative instruction is within the wide latitude of presumptively reasonable professional conduct engaged in by a trial attorney. Kitchens v. State, 289 Ga. 242, 245 (2) (e) (710 SE2d 551) (2011). Accordingly, the trial court properly rejected Davis’s ineffective assistance claim on this ground. Dickerson v. State, 275 Ga. App. 695, 698 (3) (a) (621 SE2d 831) (2005).

(c) Davis contends that his counsel provided ineffective assistance by introducing evidence of Davis’s past convictions. The record shows that, on direct examination, Davis’s counsel asked him about his past convictions for deposit account fraud, theft by taking, and interfering with government property. At the hearing on Davis’s motion for a new trial, his counsel testified that he expected the court to admit evidence of Davis’s previous convictions on cross-examination and that as a matter of trial strategy he opted to elicit testimony on direct examination to “soften the blow” and to show the jury that, by pleading guilty, Davis had taken responsibility for crimes he had committed. In addition, he wanted to have Davis explain why he fled from police officers when the victim saw him at the gas station. Even if the trial court might have exercised its discretion to exclude evidence of Davis’s prior convictions, the merit of an objection was

Decided April 2, 2014.

Tamika L. Fluker, for appellant.

K. David Cooke, Jr., District Attorney, Jason M. Wilbanks, Assistant District Attorney, for appellee.

doubtful enough that a lawyer might reasonably have concluded that little would be gained by preserving the objections. And if little would be gained by preserving the objections, a lawyer might reasonably have decided to go ahead on direct examination and bring out the prior convictions, so as to deprive the prosecuting attorney of the opportunity to raise the prior convictions for the first time on cross-examination.

(Citations omitted.) Contreras v. State, 314 Ga. App. 825, 829 (3) (726 SE2d 107) (2012). We conclude that Davis failed to carry his burden of showing that it was objectively unreasonable to elicit testimony about his prior convictions on direct examination. Id. at 829-830 (3). See also Collins v. State, 276 Ga. 726, 728 (2) (583 SE2d 26) (2003) (Where a defendant pursued a defense that he had aborted his involvement in the charged crime before it was complete and testified on his own behalf, putting his character in issue, counsel’s strategic decision to portray the defendant as a truthful person with nothing to hide was objectively reasonable, and, therefore, it did not constitute ineffective assistance of counsel to examine the defendant on direct as to his previous conviction.).

Based on the foregoing, the trial court did not err in denying Davis’s motion for a new trial based on ineffective assistance of counsel.

Judgment affirmed.

Phipps, C. J., and McMillian, J., concur.

       We note that Davis’s trial took place on December 13, 2005, before the effective date of Georgia’s new Evidence Code, which applies to any motion, hearing or trial commenced on or after January 1, 2013. Ga. L. 2011, p. 99, §§ 2, 101. See OCGA § 24-14-8 (2013) (Except in specified cases, “[t]he testimony of a single witness is generally sufficient to establish a fact.”).

       The intruder’s semen was collected on the night of the attack, and Davis stipulated that a DNA analysis identified him (or an identical twin) as the source.

       At the time of Davis’s trial, Georgia law provided that,
      (a) ... [f]or the purpose of attacking the credibility of... the defendant, if the defendant testifies[,]
      (2) [e]vidence that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant; and
      (3) [ejvidencethat.. .the defendant has been convicted of a crime shall b e admitted if it involved dishonesty or making a false statement, regardless of the punishment that could be imposed for such offense.
      (b) ... Evidence of a conviction under subsection (a) of this Code section is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of... the defendant from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old, as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
      OCGA§ 24-9-84.1 (2005).


source: Caselaw Access Project

author: ELLINGTON, Presiding Judge.

license: Public Domain

text:
    A14A0663.
    WILLIAMS v. THE STATE.
    (757 SE2d 448)
   ELLINGTON, Presiding Judge.

The Superior Court of Richmond County accepted the guilty plea tenderedby Jeffery Williams to two counts of burglary, OCGA § 16-7-1 (b). After sentence was entered, Williams filed a motion to withdraw his guilty plea, contending that his plea was not knowing and voluntary and that he received ineffective assistance of counsel. After a hearing, at which Williams was represented by new counsel, the trial court denied his motion, and he appeals. For reasons explained below, we affirm.

1. Williams contends that his guilty plea was not knowing and voluntary and, therefore, that the trial court erred in accepting his guilty plea.

Making a knowing and voluntary plea requires an understanding of the nature of the charge, the rights being waived, and the consequences of the plea. When a defendant enters a plea of guilty, and subsequently challenges the validity of the guilty plea, the State may meet its burden of demonstrating that the plea was intelligently and voluntarily entered by showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he [or she] was waiving and the possible consequences of [the guilty] plea, or by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary. The trial court is the final arbiter of all factual issues raised by the evidence, and after sentence is pronounced a guilty plea may be withdrawn only to correct a manifest injustice. A trial court has discretion to permit the withdrawal of a guilty plea, and we will not reverse a trial court’s refusal to permit withdrawal of the plea absent a manifest abuse of discretion.

(Citations and punctuation omitted.) Rocha v. State, 287 Ga. App. 446, 448-449 (2) (651 SE2d 781) (2007). See Boykin v. Alabama, 395 U. S. 238 (89 SCt 1709, 23 LE2d 274) (1969).

The record shows that, on October 28, 2011, Williams and another man were caught inside a commercial warehouse in Richmond County in the process of committing a burglary there, surrendered to sheriff’s deputies, and were taken into custody. The deputy clerk of the Civil Court of Richmond County issued an arrest warrant later that day. After Williams filed a demand for a speedy trial, his case was specially set for June 14, 2012. The State served notice of its intent to seek recidivist punishment.

On the date set for trial, before jury selection began, Williams requested a continuance so that he could retain counsel in place of his appointed counsel. After a lengthy discussion about Williams’ dissatisfaction with pretrial procedures, the court called a recess. During that recess, Williams conferred privately with his attorney, and, when the hearing resumed, the attorney announced that Williams had decided to plead guilty. The trial court questioned Williams under oath about his understanding of the charges against him, the rights he would be waiving by pleading guilty, and the potential punishment that could be imposed; his mental capacity; whether there had been any promises or threats to induce him to plead guilty; and his ability to confer with his trial attorney before pleading guilty. Williams affirmatively stated that he was satisfied with the services his attorney had provided. Williams also submitted a signed guilty plea and waiver of rights form.

Based on the court’s colloquy with Williams and his attorney and on the waiver of rights form, the trial court determined that Williams was knowingly, intelligently, and voluntarily pleading guilty to the charges, and the court accepted his guilty plea. The State then tendered into evidence certified copies of four previous felony convictions . The trial court sentenced Williams as a recidivist under O CGA § 17-10-7 (a) and (c), on each count, to fifteen years imprisonment, followed by five years probation, to be served concurrently.

In his motion to withdraw his guilty plea, Williams argued, inter alia, that he was coerced into pleading guilty by his counsel’s deficient performance. At the hearing on the motion, his trial counsel testified that, when the case was called for trial, Williams initially demanded a continuance, but, during the short recess, he had a change of heart and decided to plead guilty because he was contrite about the crimes he had committed. Nothing in the June 14, 2012 plea hearing transcript supports an inference that, after the recess when Williams met with his attorney, he wavered in his decision to plead guilty. Williams did not testify at the hearing on his motion to withdraw his guilty plea, and his trial attorney’s testimony about what transpired during the recess is undisputed. The trial court was authorized to reject Williams’ argument that he had been coerced into pleading guilty by his counsel’s deficient performance, as explained in Division 2, infra. We conclude that the trial court’s finding that Williams’ plea was intelligently and voluntarily entered was not clearly erroneous. Frost v. State, 286 Ga. App. 694, 697 (1) (649 SE2d 878) (2007) (“[P]ressures such as a lack of faith in one’s trial counsel do not necessarily give rise to the manifest injustice required to withdraw a plea after sentencing.”) (footnote omitted). Accordingly, the trial court did not abuse its discretion in denying Williams’ motion to withdraw his guilty plea. Id.

2. Williams contends that his trial counsel rendered ineffective assistance of counsel in failing to challenge the legality of the arrest warrant and in failing to challenge the sufficiency of the State’s notice of intent to seek punishment as a recidivist. Williams contends that these deficiencies had the effect of coercing him to plead guilty.

In order to show a violation of the constitutional right to effective legal assistance, a criminal defendant who has waived his right to trial and entered a guilty plea “must (1) establish that his counsel’s performance fell outside the range of competence for attorneys in criminal cases and (2) establish the reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Citations and punctuation omitted.) State v. Sabillon, 280 Ga. 1, 2 (622 SE2d 846) (2005). See Hill v. Lockhart, 474 U. S. 52 (106 SCt 366, 88 LE2d 203) (1985); Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). Atrial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous, and the defendant must overcome a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional conduct. Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996).

(a) Williams contends that his trial counsel’s performance was deficient because she failed to challenge the arrest warrant on the basis that, having been sworn before a deputy clerk of the Civil Court of Richmond County, it was not sworn before a judicial officer, as required by OCGA § 17-4-40 (a) (“Any judge of a superior, city, state, or magistrate court or any municipal officer clothed by law with the powers of a magistrate may issue a warrant for the arrest of any offender against the penal laws [.]”). Pretermitting whether the deputy clerk was clothed with the appropriate authority, however, the record shows that Williams was taken into custody and arrested before the warrant was issued. Williams does not contend that his warrantless arrest was illegal. See OCGA § 17-4-20 (a) (“An arrest for a crime may be made by a law enforcement officer . . . [ujnder a warrant[ ] or [wjithout a warrant if[, inter alia,] [t]he offense is committed in such officer’s presence or within such officer’s immediate knowledge [.]”). Given that there was a valid, warrantless arrest, the later-issued warrant was superfluous. Thus, any defect in the arrest warrant was moot, and a challenge to the arrest warrant would have been futile. Burke v. State, 316 Ga. App. 386, 389 (1) (a) (729 SE2d 531) (2012) (“Failure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.”) (punctuation and footnote omitted). Furthermore, there is no evidence of record that, if counsel had challenged the arrest warrant, Williams would have insisted on going to trial rather than pleading guilty. See Division 1, supra.

Decided April 2, 2014

Peter D. Johnson, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.

(b) Williams contends that his trial counsel’s performance was deficient because she failed to challenge the sufficiency of the State’s notice of intent to seek punishment as a recidivist. See OCGA § 17-16-4 (a) (5) (“The prosecuting attorney shall, no later than ten days prior to trial, or at such time as the court orders but in no event later than the beginning of the trial, provide the defendant with notice of any evidence in aggravation of punishment that the [S]tate intends to introduce in sentencing.”). As Williams contends, the record shows that the State’s notice itself did not identify any previous convictions by indictment or case number, by date, by offense, or otherwise. Instead, the notice stated that “[e]vidence of Defendant’s felony convictions are provided in Defendant’s GCIC [Georgia Crime Information Center] criminal history in the State’s discovery and will be provided, if necessary, in certified form at sentencing.” Announcing that the State intends to use as aggravation evidence in sentencing convictions listed in an attached GCIC report can satisfy the prior notice requirement. Parks v. State, 294 Ga. App. 646, 652 (11) (669 SE2d 684) (2008). There is no evidence in the record that the State failed to provide a copy of the criminal history report, nor is there any evidence that Williams and his counsel were unaware of the specific felony convictions listed in his criminal history record. Moreover, Williams has not articulated any basis for objecting to any of the documented convictions the State offered as a basis for sentencing under OCGA § 17-10-7 (a) and (c). And, again, there is no evidence of record that, if counsel had challenged the sufficiency of the State’s notice, Williams would have insisted on going to trial rather than pleading guilty. See Division 1, supra. Because Williams failed to carry his burden under Strickland v. Washington and its progeny, the trial court did not err in denying his motion to withdraw his guilty plea. Gower v. State, 313 Ga. App. 635, 636-637 (722 SE2d 383) (2012).

Judgment affirmed.

Phipps, C. J., and McMillian, J., concur.


author: Doyle, Presiding Judge.

text:
    A13A2006, A13A2007.
    McADOO v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY; and vice versa.
    (755 SE2d 278)
   Doyle, Presiding Judge.

Phillip R. McAdoo, a bus driver for Metropolitan Atlanta Rapid Transit Authority (“MARTA”), filed a workers’ compensation claim seeking income and medical benefits for an alleged work-related, gradual-onset back injury. The State Board of Workers’ Compensation (“the Board”) awarded McAdoo benefits, but the superior court reversed the award, concluding that although the record supported the Board’s factual findings with regard to causation, McAdoo failed to give proper notice of his claim to MARTA. In Case No. A13A2006, McAdoo appeals the superior court’s order, arguing that the court erred by reversing the Board’s award on the basis that he failed to give MARTA sufficient notice of his injury pursuant to OCGA § 34-9-80. We agree and reverse. In Case No. A13A2007, MARTA appeals, arguing that the trial court erred by affirming the Board’s award as to causation and by not correcting the date of McAdoo’s injury. We affirm in Case No. A13A2007.

On appeal, we construe the evidence in the light most favorable to [McAdoo] as the party that prevailed before the Board, and every presumption in favor of the Board’s award is indulged. If any evidence supports the Board’s findings, those findings are binding and conclusive, and we may not substitute ourselves as a fact finding body in lieu of the Board.

The record shows that McAdoo drove a MARTA bus for more than 22 years. McAdoo suffered from diabetes, which caused him to miss work multiple times each year, and he had standing Family Medical Leave Act (“FMLA”) approval for sick leave associated with his diabetes complications. In May 2010, McAdoo began to suffer low back pain and pain in his right hip, buttock, and thigh, which pain worsened as he continued to work. He treated it with over-the-counter pain medications and began to drive by shifting his weight and using his left foot to operate the brakes. His supervisor told McAdoo that it was unsafe to be “switching feet,” he needed to “get [himself] taken care of,” and he could not drive like that.

McAdoo sought treatment from his primary care physician, who had been treating him for diabetes. The physician referred him to a neurologist for his low back pain. On October 17, 2010, McAdoo stopped working because of the pain, submitting FMLA forms for his absences.

On December 6, 2010, McAdoo’s primary physician signed a disability form indicating that McAdoo was disabled due to back or leg pain, although the doctor indicated on the form that the disability was not work-related. In October 2010, McAdoo began treating with Dr. Andrei Serbanescu, a neurologist. In his initial notes, Dr. Serbanescu diagnosed lumbar radiculopathy, but indicated that the symptoms might be “most likely symmetric due to diabetes [versus] radiculopathy and neuropathy. . . . [McAdoo] is unsafe to drive for now.” Dr. Serbanescu also signed a disability form, diagnosing a combination of peripheral neuropathy and lumbar radiculopathy with a retroactive disability date of October 17, 2010, and indicating that the disability was not work-related. On December 6, 2010, McAdoo completed a short-term disability claim form for MARTA, listing the cause of his disability as “di[a]betes mellitus; lumbar radiculopathy; peripheral neuropathy; sciatic nerve weakness [;] pain [and] numbness.” McAdoo indicated on the form that his disability was related to his employment.

Several months later, on April 18, 2011, a third physician, Dr. Timothy Young, treated McAdoo for his lower back condition and issued a letter indicating that in his medical opinion McAdoo’s low back and right leg pain was likely caused by “repetitive and redundant vibrations and injury due to his [job as bus driver].” According to McAdoo, this was the first documentation he received from any of his physicians indicating a direct causal relationship between his job duties and his disability. McAdoo retained counsel, and he filed a workers’ compensation claim on April 19, 2011, the day following Dr. Young’s letter.

On February 21, 2012, the parties attended a hearing before the administrative law judge (“ALJ”). The parties stipulated at the hearing that McAdoo’s last day of work was October 17, 2010, but Dr. Young’s April 18, 2011 letter would serve as the fictional date of injury, acknowledging that the injury was gradual in onset; McAdoo, however, sought benefits retroactive to October 18, 2010.

Following a hearing, the ALJ awarded McAdoo income and medical benefits. The ALJ found that McAdoo suffered a gradual onset spine injury due to his driving, and the Board’s appellate division agreed. The Board’s award, however, primarily addressed the notice issue. The appellate division found that McAdoo’s notice to MARTA satisfied the requirements of OCGA § 34-9-80 because MARTA had admonished him for improper operation of the brakes and instructed him to resolve his physical impairment. Alternatively, the appellate division found that even if MARTA had not received sufficient notice in October 2010, McAdoo was reasonably excused from giving notice, and MARTA was not prejudiced thereby.

MARTA appealed to the superior court, which accepted the Board’s finding that McAdoo’s injury arose out of his employment. But the court also concluded that McAdoo left work because of his diabetes, and neither MARTA nor McAdoo could have presumed any other possible causation. Accordingly, the court found “that . . . McAdoo’s notice to MARTA that he was leaving for diabetes-related reasons was insufficient to satisfy OCGA § 34-9-80. Nothing in this notice would trigger any investigation by MARTA, particularly since... McAdoo had taken diabetes-related leaves in the past.” For that reason, the superior court reversed the ruling of the appellate division.

McAdoo filed an application for discretionary appeal, which this Court granted, and he appeals the superior court’s order in Case No. A13A2006. MARTA filed a cross-appeal in Case No. A13A2007, challenging the court’s finding that McAdoo’s injury was job-related and the court’s failure to change the date of the accident to the last day he worked.

Case No. A13A2006

1. McAdoo appeals the superior court’s order reversing the Board’s award, arguing that the Board’s findings regarding his notice to MARTA were supported by the record. We agree.

OCGA § 34-9-80 provides that immediately on the occurrence of an accident, or as soon thereafter as practicable, an injured employee should notify his employer. And

[n]o compensation will be payable unless such notice, either oral or written, is given within 30 days after the occurrence of an accident... unless it can be shown that... the employer, his agent, representative, or foreman, or the immediate superior of the injured employee had knowledge of the accident, or unless a reasonable excuse is made to the satisfaction of the [B]oard for not giving such notice and it is reasonably proved to the satisfaction of the [B]oard that the employer had not been prejudiced thereby.

With regard to the adequacy of notice of the accident required by the statute, the Supreme Court of Georgia has held “that a liberal construction must be given to effectuate the humane purposes for which the [Workers’] Compensation Act was enacted.”

OCGA § 34-9-80 does not require that notice of an injury or accident must show that it arose out of and in the course of the employment. The required notice need not be given with a view to claiming compensation, and is sufficient if it puts the employer on notice of the injury so that it may make an investigation if it sees fit to do so. The notice need not be in a particular format, but the employee carries the burden of giving timely notice, which will indicate to the proper statutory recipient thereof that there exists at least a possibility that the injury complained of may be job-related so that the employer may make an investigation if it sees fit to do so.

In the context of a case of gradual onset injury, “the date of such an injury is the date the employee is required to cease work.”

Here, the Board concluded that McAdoo provided MARTA with timely notice because MARTA was aware that he was unable to work because of his inability to use his right leg, recognizing that notice of an injury need not show that the injury arose out of employment, but instead is sufficient if it puts the employer on notice of the injury so that it could make an investigation thereof. The Board further concluded, however, that even if McAdoo failed to give timely notice, his claim was not barred because, as contemplated byOCGA § 34-9-80, he gave a reasonable excuse for not doing so, and he proved that MARTA was not prejudiced thereby.

In reversing the Board’s award, the superior court simply concluded that “McAdoo’s notice that he was leaving [work] for diabetes-related reasons was insufficient to satisfy OCGA § 34-9-80,” and it did not address the Board’s conclusion that McAdoo gave a reasonable excuse for not providing timely notice.

In an appeal of workers’ compensation award,

the evidence will be construed most favorable to the party prevailing before the [B]oard, and every reasonable factual inference and presumption of validity of award should be indulged in by the reviewing court. Neither the superior court nor this [C]ourt has any authority to substitute itself as a fact-finding body in lieu of the [B]oard; an appellate body is bound by the “any evidence” standard of review, and is not authorized to substitute its judgment as to weight and credibility of witnesses.

So viewed, the record shows that the superior court erred by reversing the Board’s decision regarding McAdoo’s notice to MARTA. Pretermitting whether McAdoo’s notice to MARTA was sufficient and timely, there was evidence in the record to support the Board’s conclusion that McAdoo demonstrated a reasonable excuse for not giving timely notice and that MARTA was not prejudiced thereby. Accordingly, the trial court erred by reversing the Board’s award to McAdoo based upon his failure to provide timely notice to MARTA pursuant to OCGA § 34-9-80.

Case No. A13A2007

2. MARTA argues that the superior court erred by affirming the Board’s decision that McAdoo’s injury arose out of his employment because the evidence of such was speculative. We find no basis for reversal.

Dr. Serbanescu specifically stated in an August 2011 letter, which was prepared as an addendum to a prior medical questionnaire regarding McAdoo’s medical condition, that “[i]t is [his] impression that. . . [McAdoo’s] employment as a bus driver in the last 23 years significantly aggravated, accelerated[,] or at least contributed to his severe lumbar disc disease.” Dr. Serbanescu reiterated this opinion at his deposition, explaining that he based his causation opinion upon McAdoo’s MRI and EMG nerve conduction study results, the location and pattern of his pain and sensory loss, and the fact that his symptoms worsened when and after he drove a bus. Dr. Young stated in his April 2011 letter that McAdoo’s chronic lower back pain caused by herniated disc and degenerative disc “was most likely due to repetitive and redundant vibrations and injury due to his occupation as a M[ARTA] [b]us [o]perator.”

The Board is the trier of fact and law and we are bound by its finding if there is “any evidence” to support that finding. . . . Questions as to credibility and preponderance address themselves to the trier of facts. On appeal, the appellate tribunal does not determine the credibility of witnesses or the preponderance of the evidence. The appellate tribunal utilizes the “any evidence” test, a test not available to the trier of facts in deciding disputed factual issues. This [C]ourt and the trial court are bound by the findings of the Board supported by any evidence.

Because there was evidence to support the Board’s conclusion that McAdoo’s injury was job-related, the superior court did not err by affirming this finding.

3. MARTA contends that the superior court erred by failing to reverse the Board’s award, which listed the date of injury as April 18, 2011 — the fictional date of McAdoo’s injury based on Dr. Young’s letter — instead of October 17, 2010, the last day McAdoo worked. According to MARTA, listing the later date would cause MARTA to have to pay temporary total disability benefits for 400 weeks from April 18, 2011 pursuant to OCGA § 34-9-261, instead of 400 weeks beginning on his last day of work.

The ALJ’s award, which the Board affirmed, clearly awarded McAdoo “income benefits from the day he ceased working.” There is no indication in any other award or order from the ALJ, the Board, or the superior court that McAdoo’s benefits would begin on the April 2011 fictional date of his injury. Accordingly, this enumeration presents no basis for reversal.

Decided March 11, 2014

Reconsideration denied April 3, 2014

Micah B. Fink, for appellant.

F. Taylor Putney, Jr., for appellee.

Judgment affirmed in Case No. A13A2007. Judgment reversed in Case No. A15A2006.

McFadden and Boggs, JJ., concur.

       (Citations and punctuation omitted.) Putzel Elec. Contractors v. Jones, 282 Ga. App. 539, 539-540 (639 SE2d 540) (2006).

       Dr. Serbanesou’s later records from March 22,2011, stated that McAdoo’s condition “may be the result of his work, [workers’] comp evaluation pending____” There is no evidence, however, that McAdoo was aware of this impression at the time.

       At the hearing, counsel for MARTA explained that the technical limitations of the Board’s online electronic filing system precluded McAdoo’s counsel from indicating therein that he sought benefits beginning in October 2010 because the fictional date of injury was April 18, 201Í. It is undisputed, however, that McAdoo sought benefits retroactive to October 2010, when he stopped working.

       (Emphasis supplied.) OCGA § 34-9-80.

        Schwartz v. Greenbaum, 236 Ga. 476, 477 (1) (224 SE2d 38) (1976).

       (Citations and punctuation omitted.) Impress Communications v. Stanley, 202 Ga. App. 226, 228 (1) (414 SE2d 238) (1991), quoting Schwartz, 236 Ga. at 476 (1).

        Impress Communications, 202 Ga. App. at 229 (1).

       Reiterating that McAdoo did not receive an affirmative diagnosis that the radiating pain in his right leg was caused by an injury to his lower back until April 2011, the Board noted that “an employee’s caution against filing a possibly frivolous claim should not work to prevent such a claim when the [employer’s] knowledge of the empirical evidence surrounding an inability to work is equal to that of an employee.”

       (Citations and punctuation omitted.) Id., quoting Harper v. L & M Granite Co., 197 Ga. App. 157, 159-160 (2) (a) (397 SE2d 739) (1990).

       See Hardware Mut. Cas. Co. v. Sprayberry, 69 Ga. App. 196, 203 (25 SE2d 74) (1943) (“Inasmuch as it is intended by the act that all questions of fact are for the determination of the... Board, and its findings are conclusive upon the courts where, as in the case of a jury, there is sufficient evidence to support them, we think that it was intended by the legislature that the reasonableness of the excuse offered for failure to give the specified notice of the accident is for the determination of the . . . Board.”).

       (Citations and punctuation omitted.) Hodges v. William L. Sloan, Inc., 173 Ga. App. 358, 358-359 (326 SE2d 556) (1985).

       See id.; Travelers Ins. Co. v. Hogue, 130 Ga. App. 844, 845-846 (204 SE2d 760) (1974).

       We further note that MARTA’s reliance upon cases addressing “fictional ‘new accidents’ ” do not require reversal.
      New accident theory cases only apply in those instances where the claimant is injured and goes back to work without any agreement or award as to that injury having been approved or issued by the... Board.... The date of the “new accident” is the date that the injury manifested itself, that is, the date the claimant is forced to cease his employment.
      (Punctuation omitted.) Guarantee Mut. Ins. Co. v. Wade Investments, 232 Ga. App. 328, 329 (499 SE2d 925) (1998). See also Carey v. Travelers Ins. Co., 133 Ga. App. 657, 658 (2) (212 SE2d 13) (1975) (in gradual injury cases, the date of accident is “the date the employee is required to cease work”). Here, it is clear that McAdoo ceased working in October 2010.


author: DOYLE, Presiding Judge.

text:
    A13A2057.
    EARWOOD v. THE STATE.
    (755 SE2d 312)
   DOYLE, Presiding Judge.

Jeremy Earwood was convicted of cruelty to children in the first degree and aggravated battery. Thereafter, he filed a motion for new trial, which the court granted as to the cruelty to children count, finding that its failure to give a requested jury instruction that reckless conduct was a lesser included offense of first degree cruelty to children was error, but denied the motion as to the aggravated battery count. Earwood now appeals as to his conviction for aggravated battery, alleging that the trial court’s failure to give the jury an instruction for reckless conduct as a lesser included offense of the cruelty to children count contributed to the jury’s return of a guilty verdict as to the aggravated battery count. For the reasons that follow, we affirm.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia.[] This same standard applies to our review of the trial court’s denial of [the defendant’s] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

So viewed, the evidence shows that on December 6, 2008, Ear-wood was babysitting C. V., the three-year-old son of Earwood’s girlfriend, R. V., and C. V.’s younger brother. C. V. fractured his arm, and Earwood called R. V., and the two transported C. V. to the hospital. Earwood claimed that C. V. was injured falling off the couch.

The State presented the testimony of doctors who treated C. V., who stated that the fracture was a spiral type, which is associated with a torque or rotation of the bone and which is often associated with an injury inflicted on a child by another person. C. V. gave differing accounts of how he sustained the injury, stating that he injured his arm falling off the couch and that his arm was injured when Earwood grabbed him. The evidence also showed that C. V. had sustained a broken clavicle approximately one month prior to the broken arm while he was in the care of Earwood.

In relation to the aggravated battery charge, the trial court charged the jury:

In Count 2 the defendant is charged with the offense of aggravated battery. A person commits the offense of aggravated battery when he maliciously causes bodily harm to another by rendering a member of his body useless permanently or temporarily. I’ll now charge you with a lesser included offense under Count 2, and I’ll discuss with you in just a moment what lesser included offense means. Basically it is if you were to find the defendant not guilty under Count 2 of aggravated battery, you would consider whether or not he was guilty of the lesser included offense of reckless conduct. If you do not believe beyond a reasonable doubt that the defendant is guilty of aggravated battery, but do believe beyond a reasonable doubt that the defendant is guilty of reckless conduct, then you would be authorized to find the defendant guilty of reckless conduct, and the general form of your verdict would be, we the jury, find the defendant guilty of reckless conduct. Reckless conduct is defined as follows: A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that its act or omission will cause harm or endanger the safety of other persons, and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation, is guilty of the crime of reckless conduct.... As to the lesser included offense under Count 2, if you do not believe beyond a reasonable doubt the defendant is guilty of aggravated battery, but do believe beyond a reasonable doubt the defendant is guilty of reckless conduct, then you would be authorized to find the defendant guilty of reckless conduct and the general form of your verdict in that event would be, we, the jury, find the defendant guilty of reckless conduct.

The verdict form itself contained two possible findings for Count 1 (not guilty or guilty as to cruelty to children in the first degree) and three possible findings for Count 2 (not guilty, guilty of aggravated battery, or guilty of reckless conduct). With regard to the form, the trial court instructed the jury:

Below that it says Count 2 charging aggravated battery, circle one of the following. There are three statements. The first statement is we, the jury, find the defendant not guilty. The second statement is we, the jury, find the defendant guilty of aggravated battery. And the third statement is we, the jury, find the defendant guilty of reckless conduct. You would circle the one that you find based on those principles. For example, if you were to find the defendant not guilty you would circle the first one, we the jury, find the defendant not guilty. If you were to find the defendant guilty of aggravated battery you would circle the second one, we, the jury, find the defendant guilty of aggravated battery. And if you were to find the defendant not guilty of the aggravated battery, but guilty of reckless conduct, then you would circle the third one, which is, we, the jury, find the defendant guilty of reckless conduct.

The jury asked five questions to the trial court during its deliberations. Those questions were (1) “Can we see the Green House video and/or transcripts?”; (2) “What is the definition of malic[i]ous in the context of both charges?”; (3) “What is the standard of reasonable doubt?”; (4) “What are the difference[s] in Count 1 [and] Count 2?”; and (5) “Does action have to be . . . malicious? intentional?”

1. Although Earwood does not challenge the sufficiency of the evidence, there was sufficient evidence to support the jury’s guilty verdict as to aggravated battery.

2. Earwood argues that the trial court erred by denying his motion for new trial as to the aggravated battery count based on the trial court’s failure to charge the jury that reckless conduct was a lesser included charge of cruelty to children. The failure, Earwood argues, confused the jury and impermissibly contributed to the guilty verdict on the aggravated battery charge.

“It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” Moreover,

[w]hen a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence. There is no error where it is unlikely that the instructions considered as a whole would mislead a jury of ordinary intelligence.

Here, taking the jury instructions as a whole, it was not likely that the jury was confused about whether it could find Earwood guilty of aggravated battery or reckless conduct as to Count 2 based on the trial court’s failure to instruct the jury as to the lesser included charge on Count l. The verdict form was clear, and the trial court’s instruction as to aggravated battery was a correct statement of the law. It does not follow that the lack of a lesser included charge on Count 1 means that the jury believed that it could not find Earwood guilty of reckless conduct on Count 2 because the jury would not have known that there was even a possible lesser included charge for Count 1. Had the jury believed that Earwood had not acted intentionally, it could have acquitted him on Count 1 and found him guilty of reckless conduct on Count 2. Accordingly, the trial court properly denied Earwood’s motion for new trial as to this issue.

Decided March 18, 2014

Reconsideration denied April 3, 2014

Michael R. McCarthy, G. Brandon Sparks, for appellant.

Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-5-70 (b).

       OCGA § 16-5-24 (a).

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

       (Footnotes omitted.) Stephens v. State, 247 Ga. App. 719 (545 SE2d 325) (2001).

       See OCGA § 16-5-24 (a) (“Aperson commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.”).

       (Punctuation omitted.) Ow v. State, 255 Ga. App. 98, 103 (2) (564 SE2d 512) (2002).

       (Punctuation omitted.) Robison v. State, 277 Ga. App. 133, 136 (2) (625 SE2d 553) (2006), quoting Pullins v. State, 232 Ga. App. 267 (1) (a) (501 SE2d 612) (1998).

       See, e.g., Robison, 277 Ga. App. at 136 (2).

       See OCGA § 16-5-24 (a).


author: Branch, Judge.

text:
    A13A2121.
    SKC, INC. v. eMAG SOLUTIONS, LLC.
    (755 SE2d 298)
   Branch, Judge.

SKC, Inc. filed suit against eMag Solutions, LLC, in Fulton County State Court, seeking to recover amounts owed on eMag’s account with SKC. The parties filed cross-motions for summary judgment, and the trial court granted summary judgment in favor of eMag, based on its conclusion that the applicable statute of limitation had expired. SKC now appeals from that order, asserting that the trial court erred in granting eMag’s motion for summary judgment and in denying SKC’s motion. We agree that the trial court erred in finding that SKC’s claims are time-barred and therefore reverse the grant of summary judgment in favor of eMag. Additionally, because the undisputed evidence shows that eMag owes some amount of money on its account with SKC, we remand for entry of judgment in favor of SKC on the issue of eMag’s liability on the account and for a determination of SKC’s damages.

In an appeal from the grant or denial of a motion for summary judgment, we apply a de novo standard of review, viewing the evidence, including any reasonable conclusions and inferences that it supports, in the light most favorable to the nonmovant. Gayle v. Frank Callen Boys & Girls Club, 322 Ga. App. 412 (745 SE2d 695) (2013). Additionally, where the relevant facts are undisputed, we owe no deference to a trial court’s ruling on whether an action is barred by the statute of limitation, as that question is one of law. See Lloyd v. Prudential Securities, 211 Ga. App. 247, 249 (2) (438 SE2d 703) (1993).

The record shows that SKC is a manufacturer of polyurethane film and that during the relevant time period it also sold what it describes as “digital media products.” eMag describes itself as an electronic discovery company. In December 1999, eMag submitted a credit application to SKC, and SKC thereafter began selling products to eMag on account. Between May 17 and June 18, 2001, SKC made six product shipments to eMag, with the invoices for those shipments totaling $366,647. eMag thereafter became severely delinquent on its account and on October 16,2001, Ron Lanquist, eMag’s CFO at the time, sent a letter to Byerson acknowledging that eMag owed SKC $331,104 and offering to return merchandise worth $121,319 and to settle the remaining debt for 20 cents on the dollar. Byerson responded on behalf of SKC on November 20,2001. Inits response, SKC rejected eMag’s offer, requested full payment of the amount owed (which SKC contended was $366,246.69) by November 30, 2001, and stated that if payment was not made by that date, SKC would consider “other means of collection.” When eMag failed to make any payments on the account, SKC’s assistant general counsel sent eMag a demand letter on December 21, 2001, notifying the company that eMag’s continued failure to pay an amount SKC now stated as “$366,647.04, exclusive of interest,” would “result in further legal action by SKCA.”

Although eMag did not immediately make any payments on the amount owed, Byerson testified that SKC did not sue on the account at that time because eMag was “an important customer,” particularly with respect to SKC’s digital media products. Byerson further explained that as a general rule, so long as a customer was making some effort to pay on its account, SKC would forego attempting to collect the debt “by means other than working with the customer.” In this case, the parties continued negotiations regarding the outstanding balance on eMag’s account, and on April 23, 2002, Steve Fiddler, who was then the CFO of eMag, sent an e-mail to Byerson confirming their telephone conversation earlier that day regarding payment on the account. Fiddler wrote:

eMag ... has proposed to issue wire payments of $6,000 per month through December 2002 against our outstanding payable to SKC. ... In December 2002, we will re-evaluate our financial condition and attempt to increase the monthly payment amount for calendar 2003 and beyond. We greatly appreciate your patience as we attempt to resolve this payable balance. We have issued the first wire payment of $6,000 today.

The following day, Byerson responded via e-mail acknowledging receipt of “the initial payment of $6,000” and informed Fiddler that she was “sending today via Fed-X [sic] copies of invoices and statement of account.”

A current statement of eMag’s account produced by SKC reflects that eMag made monthly wire transfer payments of $6,000 on its account for the months of April 2002 through October 2003, inclusive; made no payments for the months of November and December 2003 and January 2004; made a payment of $3,000 in February 2004; made monthly payments of $1,500 for the months of March 2004 through May 2008, inclusive; and made a payment of $3,000 on July 29,2008. SKC also obtained printouts from its bank evidencing the wire transfer payments it received from eMag for the months of January through May 2006, inclusive; October 2006; January through December 2007, inclusive; January through May 2008, inclusive; and July 2008. Each of these printouts contains a line for “originator [eMag] to beneficiary [SKC] info”; on each of these lines one of the following notations appears: “payment on account,” “on account,” “eMag on account,” or “payment on past due account.” These payments totaled $196,500 which, when subtracted from the invoice totals of $366,647, leaves a balance on those invoices of $170,147.

Fiddler, in his capacity as CFO of eMag, sent a letter to SKC on January 16,2006, stating that eMag was undergoing an annual audit and that the auditors “desire that [SKC] furnish directly to them ... the amount of [eMag’s] liability to [SKC] (if any) as of December 31, 2005 and a statement of our account as of that date.” SKC responded on January 26, 2006, reporting to the auditors that eMag owed SKC $214,746.69 as of December 31, 2005. On February 7, 2007, Fiddler sent SKC another audit letter asking for SKC to provide eMag’s auditors with the amount of eMag’s liability to SKC as of December 31, 2006. SKC responded on February 27, 2007, stating that eMag owed it $151,906 as of December 31, 2006.®

eMag designated as its OCGA § 9-11-30 (b) (6) representative its current CFO, James Mauck. Mauck, who was first employedby eMag in May 2011, testified that eMag disputed the invoices relied on by SKC as evidence of the debt because “there’s nobody [currently employed] at eMag that has knowledge of whether these invoices are accurate, whether they are real.” Mauck admitted, however, that eMag’s records from 2006 and 2007 “show that eMag owed some amount of money to SKC.” He also acknowledged that eMag’s “hard copy records” from early 2007 showed an account payable balance to SKC. Mauck further explained that two events occurred in 2008 that may have affected eMag’s records with respect to any outstanding debt to SKC. First, in 2008 eMag obtained new auditors and following their initial audit, no debt to SKC was reflected on eMag’s balance sheets. Additionally, in 2008 eMag converted to a new data system, and some of the information shown on eMag’s balance sheets starting in 2009, following this conversion, could not be reconciled with information from the company’s 2008 balance sheet.

When questioned, Mauck, who had previously worked as a financial auditor, acknowledged that it would be “fair to say” that a creditor would not receive an audit letter like those received by SKC unless the company being audited had acknowledged that the creditor was owed a debt. Mauck also admitted that although eMag could not locate all of its bank statements for the relevant time period, those that it could locate showed that between February 2004 and December 2007 eMag made 20 payments totaling $31,500 to SKC. He further acknowledged that eMag made a payment of $3,000 to SKC on July 29, 2008.

1. SKC contends that the trial court erred in finding that its claim is time-barred. We agree.

Under Georgia law, the statute of limitation for an action on an open account is four years. OCGA § 9-3-25. Normally, the limitation period begins to run either on the date payment becomes due or on the date the creditor demands repayment. See Avery Enterprises v. Lyndhurst Builders, 304 Ga. App. 353, 355 (696 SE2d 389) (2010); Murphy v. Varner, 292 Ga. App. 747, 748 (1) (666 SE2d 53) (2008). Georgia law further provides, however, that “[a] payment entered upon a written evidence of debt by the debtor or upon any other written acknowledgment of the existing liability shall be equivalent to a new promise to pay.” OCGA § 9-3-112. And each new promise to pay constitutes a new point from which the statute of limitation begins to run, provided two conditions are met. See OCGA § 9-3-110. Specifically, the acknowledgment of the debt must be communicated to the creditor and it “must sufficiently identify the debt or afford the means by which [the debt] might be identified with reasonable certainty.” Middlebrooks v. Cabaniss, 193 Ga. 764, 767 (1) (20 SE2d 10) (1942).

Applying these principles, Georgia’s appellate courts have previously held that when payment to a creditor is accompanied by some notation sufficient to identify the debt being paid, that payment and notation constitute a new promise to pay which renews the running of the limitation period. See Middlebrooks, 193 Ga. at 768 (1); Heath v. Wheeler, 234 Ga. App. 606, 609 (2) (507 SE2d 508) (1998); Garrett v. Lincoln Cemetery, 148 Ga. App. 744 (252 SE2d 650) (1979). In Middlebrooks, a debtor had made payments on a promissory note by checks made payable to the creditor and bearing the notation, “ ‘ [p] ayment on my . . . note’ or expressions of the same import.” 193 Ga. at 768 (1). Given these facts, and because the debtor had only one note with the creditor, the Supreme Court of Georgia found that the checks represented a series of new promises to pay. Id. Similarly, in Garrett, an accountant sued to recover for amounts owed on an audit the accountant had performed for the defendant. The trial court granted judgment in favor of the defendant, finding that because the debt had accrued more than four years earlier the action was barred by the statute of limitation. We reversed, noting that in the four years before suit was filed the defendant had made payments on the debt by check. On one check the defendant had written “Legal & Audit on Acct.,” and on the other it had written “[Defendant’s] Bal. $6,500.” Garrett, 148 Ga. App. at 744. Because the defendant “only had one account with the plaintiff,” we found that the checks represented a new promise to pay and renewed the running of the limitation period. Id.

In this case, SKC presented evidence showing that eMag had accrued a debt in excess of $300,000 to SKC, had acknowledged that debt in writing, and had agreed in writing to make monthly payments on the debt. SKC also presented additional documentary evidence demonstrating the debt and eMag’s acknowledgment of the same, including SKC’s business records of eMag’s account and printouts from SKC’s bank evidencing the monthly wire transfer payments made by eMag over an approximately six-year period. Additionally, each of the printouts evidencing eMag’s wire transfer payments contains a notation from eMag indicating that the payment was to be applied to the debt on its account. The evidence further shows that eMag had only one account with SKC.

Given the evidence of record, we find that the wire transfer payments containing the notations regarding eMag’s account with SKC constituted new promises by eMag to pay its debt to SKC, and sufficed to renew the running of the limitation period. Because the last such payment was received by SKC on either July 29 or 30, 2008, the statute of limitation began to run on that date. Accordingly, the current lawsuit, which was filed on March 1, 2012, is not time-barred and we therefore reverse the grant of summary judgment in favor of eMag.

2. In an attempt to avoid a significant portion of its liability to SKC, eMag argues that even if the wire transfers renewed the statute of limitation, they did so only with respect to the oldest three of the six invoices at issue. In support of this argument, eMag points to the testimony of Byerson, who stated that when SKC received a payment from eMag, it would apply the credit to the oldest outstanding invoice on the account. Given SKC’s bookkeeping method, eMag reasons that each wire transfer constituted a new promise to pay only that invoice to which SKC was applying the payment. Because under SKC’s bookkeeping system no payment was ever credited to the three most recent invoices, eMag concludes that it never made a new promise to pay those invoices. It therefore contends that the statute of limitation has expired with respect to those invoices and that it cannot be held liable for the amounts billed thereon. We disagree.

As noted above, eMag had only one account with SKC, to which all invoices were billed. And when it initiated payment negotiations, eMag did not reference specific invoices; instead, it referred to the lump sum owed on its account with SKC. Additionally, all of the communications between the parties spoke of the amount owed on eMag’s account, rather than separate amounts owed under individual invoices. Finally, eMag’s notations on its payments made by wire transfer reflect that the payments were to be applied to eMag’s account, rather than to a specific invoice. In light of the foregoing, the mere fact that, as an internal bookkeeping matter, SKC chose to allocate eMag’s payments to a specific invoice does not change our conclusion that eMag’s payments represented new promises to pay the entire amount owed on its account. See All Tech Co. v. Laimer Unicon, 281 Ga. App. 579, 580 (636 SE2d 753) (2006) (where plaintiff was seeking to recover payment for all invoices billed to defendant’s account over a two-year period, trial court properly treated action as one on an open account).

3. SKC also appeals the denial of its motion for summary judgment. We agree that the trial court erred in denying SKC’s motion as to eMag’s liability for the amount owed on its account. SKC came forth with evidence demonstrating the debt, including invoices, the statement of eMag’s account, documentary evidence of eMag’s wire transfer payments, and the testimony of Byerson, who had personal knowledge of eMag’s account with SKC. eMag failed to come forward with any evidence to refute SKC’s showing. Notably, the person that eMag designated as its OCGA § 9-11-30 (b) (6) representative had worked for the company for approximately one year, had no personal knowledge of eMag’s account with SKC, acknowledged that at some time between 2008 and 2009 evidence of eMag’s account with SKC disappeared from eMag’s balance sheets, and admitted that eMag owed SKC “some amount of money.”

Decided March 14, 2014

Reconsideration denied April 3, 2014

Douglas L. Brooks, for appellant.

Foltz Martin Knapp, Jimmy C. Luke II, for appellee.

Although SKC established that it was entitled to summary judgment on the issue of eMag’s liability, we find that based on the current record, SKC is not entitled to summary judgment on the amount of damages it is claiming. With respect to the amount owed on eMag’s account, the documentary evidence produced by SKC contains some inconsistencies. It may be that on remand these inconsistencies can be explained, but that evidence is not currently before us. Additionally, there is no evidence in the record showing how SKC calculated the amount of interest it claims is owed on eMag’s account. Accordingly, we reverse the grant of summary judgment in favor of eMag and remand this case for entry of judgment in favor of SKC on the issue of eMag’s liability on its account, with the amount of damages to be determined in further proceedings consistent with this opinion.

Judgment reversed and case remanded with direction.

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

       These invoices were authenticated by Emmarine Byerson, SKC’s credit and risk manager, who testified that they were kept in the regular course of SKC’s business.

       eMag made no payments for the month of May 2005, but made two separate payments of $1,500 each in June 2005.

       It is unclear from the record how SKC arrived at the amount owed as of December 31, 2006, as the statement of account it presented reflects that eMag would have owed it $196,746.69 (exclusive of interest) as of that date.

       We find no merit in eMag’s assertion, which it fails to support with any citation to legal authority, that the statement of account relied on by SKC and authenticated by Byerson constitutes inadmissible evidence. See OCGA § 24-8-803 (6) (report, record, or data compilation made in the regular course of business and authenticated by the record custodian or other qualified witness falls within an exception to the hearsay rule and is admissible); Minor v. E. F. Hutton & Co., 200 Ga. App. 645, 646 (2) (409 SE2d 262) (1991) (in an action for amounts due on an account, affidavit of creditor’s employee, “setting forth the amount it claimed was due which, together with attached statements of account that were admissible as business records” supported a grant of summary judgment in favor of creditor) (citation omitted).

       We emphasize that our holding in this appeal does not mean that SKC’s damages will never be susceptible to summary adjudication. We are simply holding that based on the current record, the amount of damages is insufficiently certain.

       The statement of account reflects an original amount owing of $366,647, against which SKC credited the payments it received. In November 2001, however, SKC sent a letter to eMag stating that the amount due on its account was $366,246.69. And this letter was sent in response to correspondence from eMag, in which that company acknowledged a debt to SKC of $331,104. Finally, the amount SKC told eMag’s auditors was owed on eMag’s account as of December 31, 2006 is approximately $40,000 less than SKC’s account records show was due as of that date, and is approximately $20,000 less than SKC claims is currently owed on the account.


text:
    A13A2387.
    MOORE et al. v. SINGH et al.
    (755 SE2d 319)
   DOYLE, Presiding Judge.

This appeal arises from the grant of a motion for directed verdict in favor of Sonu G. Singh, M.D., and Peach State Nephrology, Inc., in a medical malpractice action filed by Herbert Moore, individually and as the administrator of the Estate of Rosemary Moore. For the reasons that follow, we reverse.

A directed verdict is authorized only when there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. A grant of directed verdict is a ruling that the evidence and all reasonable deductions therefrom demand a particular verdict. It is illogical to say such a finding will be upheld if there is any evidence to support it. A grant of directed verdict can be upheld only where we determine that all the evidence demands that verdict. This requires a de novo review.... It is correct to say that a directed verdict cannot be granted if there is any evidence to support a contrary verdict, but there cannot he “some evidence” that all the evidence demands a particular verdict.

Viewed in this light, the evidence presented at trial showed that on December 23, 2008, after a fall in her home during which she hit her left knee on a door frame, Rosemary Moore, who as a result of her diabetes had end-stage renal disease, was transported by ambulance to Henry Medical Center Emergency Department (“Henry Medical”). Rosemary complained that she was unable to put weight on her leg, and she feared that her ankle was sprained; she also had a contusion on her knee, which was x-rayed, but did not appear to have a fracture per the radiologist’s report. Rosemary was diagnosed with a left ankle sprain and left knee contusion and discharged from the hospital that same day, but Rosemary was not able to stand or walk at that time.

The following morning, December 24, 2008, Moore found Rosemary unresponsive in their bed, and she was again transported to Henry Medical, where Dr. Singh, who is a nephrologist who treats patients with diabetes, treated her until she was discharged on January 5,2009. Rosemary regained consciousness on December 26, and she again complained of pain in her left leg. Over the course of the hospital stay, Rosemary was assessed for various other ailments related to her diabetes, and a physical therapist assessed her left leg, finding that her pain in that leg was centered on her knee and tibial tuberosity, but Dr. Singh did not follow up on the physical therapist’s findings and did not order further x-rays, a CT scan, or an MRI, nor consult with an orthopedist regarding the issue.

Rosemary continued to experience issues with her leg and was unable to bear weight on it. She regularly saw doctors for the other ailments she experienced as a result of her diabetes, but in late February 2009, she sought assistance from Dr. Brice Choi about her leg. Dr. Choi determined that Rosemary had sustained a fracture in her tibia that had at some point displaced and healed in the displaced position, and he referred her to orthopedist Dr. Daniel Orcutt for treatment. On April 2, 2009, Dr. Orcutt performed surgery on Rosemary’s leg, which surgery included breaking the partially healed bone in order to set it with pins for healing in the correct position.

At trial, Dr. Stephan Borkan provided expert testimony that a nephrologist examining Rosemary would have been concentrating on the status of her bones, which could be affected by end-stage renal disease and the length of time she had been on dialysis, circulatory problems, and peripheral neuropathy, which is the decreased perception of pain and normal stimuli in the extremities. Borkan testified that doctors are taught specifically to describe and localize particular portions of the lower extremities to which they are referring when assessing a patient and describing symptoms in a chart. He explained that the upper leg is the area below the pelvis and above but not including the knee, the knee is the knee joint, the lower leg is the area below but not including the knee to the ankle joint, and below the ankle joint is the foot.

Dr. Borkan testified that Dr. Singh’s December 27 notes failed to meet the standard of care by adequately describing and localizing Rosemary’s pain to a specific portion of Rosemary’s left leg, instead, noting that she had “severe pain in the [left] leg” and contained a notation that the “[left] leg is tender [and] swelling.” Dr. Borkan further testified that Dr. Singh should have explained to a more precise degree the location of pain and swelling on the leg, the appearance of that particular portion of the leg — swelling, tenderness, bruising — and Rosemary’s ambulation ability, and he stated the failure to so specify was a breach of the standard of care.

Dr. Borkan testified that there was evidence Dr. Singh was examining the leg because she noted deep vein thrombosis and cellulitus as possible issues causing the leg pain, but contrary to the standard of care, Dr. Singh failed to note the area of the leg where the symptoms appeared that may indicate such issues. Dr. Borkan explained that a chart should be able to stand alone so that any other medical providers could step in and easily assess what the other doctor had found with regard to symptoms and what other possibilities had been ruled out; Borkan stated that he had “not seen such a superficial and inadequate record in” his career, and the damage that it can lead to is misdiagnosis. Dr. Borkan testified that by December 27, with Rosemary still complaining of pain in her left leg, trauma leaving a contusion and swelling at the knee merely four days prior to that, and redness and pain in the leg as evidenced by the differential diagnosis’s inclusion of deep vein thrombosis and cellulitus, Dr. Singh’s differential diagnosis also should have included a fracture as a possible diagnosis, and she should have ordered a CT scan, an MRI, or an orthopedic consult.

By December 29, Rosemary still was experiencing pain in her leg and could not bear weight on it, and Dr. Singh ordered a physical therapy consult, which consult localized the pain in Rosemary’s leg to the top of the tibial tuberosity and kneecap area; Dr. Singh, however, failed to follow up on that report with any further investigative tests, such as a CT scan, an MRI, or an orthopedic consult between that time and Rosemary’s discharge on January 5,2009, which Dr. Borkan testified was a breach of the standard of care for an attending nephrologist.

Dr. Orcutt testified that when he first saw Rosemary in late March 2009, the fracture was at the least six weeks old, which he estimated based on the appearance of the fracture and the partial healing that had occurred, and he postulated that it had not existed for more than a year. According to Dr. Orcutt, because Rosemary did not have issues walking prior to her December 23 injury, it was unlikely that the fracture existed prior to the incident and was most likely not displaced until sometime after December 23 because the x-ray performed on that day did not show the existence of a fracture, which could have been occult, i.e., not visible on an x-ray, at that point. Dr. Orcutt stated that without some other trauma than that which reportedly occurred on December 23, “[t]he only explanation [for the displaced and re-healed fracture] was [Rosemary] had a nondisplaced fracture after the fall in December that was not diagnosed.”

Dr. Orcutt testified that although the fracture could have been an occult fracture on December 23, it could have been detected at that point using a CT scan or MRI scan. Dr. Orcutt testified that if the fracture had been detected while it was nondisplaced, then it could have been treated without surgical intervention, which treatment would have included orders not to bear weight and the use of a brace.

At the close of Moore’s case, the Defendants moved for a directed verdict, which the trial court granted. In its order granting the motion for directed verdict, the trial court found:

After considering the testimony presented by Plaintiffs, the Court finds Plaintiff failed to present adequate testimony from a qualified expert any violation of the standard of care on the part of the Defendants proximately caused the injuries for which Plaintiffs w[ere] seeking recovery. Specifically, Plaintiffs presented neither testimony to a reasonable degree of medical probability any violation of the standard of care caused injury to Rosemary Moore, nor did they present testimony to a reasonable degree of medical probability Ms. Moore’s injuries for which Plaintiffs were seeking damages at trial could have been avoided.

1. Moore argues that the trial court erred by granting a directed verdict on the basis that he failed to present evidence of causation of any damage to Rosemary. Specifically, Moore contends that he presented evidence of damages, and the trial court erroneously limited its view of damages as the necessity of surgery, and its grant of the directed verdict on this basis is therefore erroneous.

To recover in a medical malpractice case, a plaintiff must show not only a violation of the applicable medical standard of care but also that the purported violation or deviation from the proper standard of care is the proximate cause of the injury sustained. In other words, a plaintiff must prove that the defendants’ negligence was both the cause in fact and the proximate cause of his injury.

In some instances where the question of causation is outside the ken of the normal juror, this showing must be based on expert testimony that is sufficient to support a finding that the deviation from the standard of care to a reasonable degree of medical certainty caused the injury. “Causation may be established by linking the testimony of several different experts.” “Questions regarding causation are peculiarly questions for the jury except in clear, plain, palpable and undisputed cases.” Although “[a] plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough____”

Based on the combined expert testimony, we conclude that Moore presented evidence creating a jury issue as to whether Dr. Singh would have discovered the fracture if she had properly complied with the standard of care during the examination of Rosemary during her hospitalization, and moreover, whether the failure to diagnose the fracture during that time led to further complications with the break such that surgery was required or made more complicated as a result of approximately two months of lack of treatment.

To the extent that the Defendants contend that Rosemary was not complaining about pain in her leg that would trigger Dr. Singh to assess it for a fracture, there is ample testimony from Moore that Dr. Singh had been made aware of Rosemary’s leg pain. Moreover, Dr. Borkan’s testimony that Dr. Singh’s notes included a differential diagnosis for left leg pain and swelling including deep vein thrombosis and cellulitus, neither of which would manifest in the ankle, support Moore’s testimony that Dr. Singh was aware of the pain in the area of the fracture. In conjunction with Dr. Orcutt’s testimony regarding the timing of the break, we conclude that material issues of fact exist as to whether Dr. Singh’s breach of the standard of care during Rosemary’s December 24 to January 5 hospitalization resulted in a failure to diagnose the fracture prior to its displacement or prior to its healing out of position. To the extent that there are questions regarding these issues, those were for the jury to decide and did not demand the grant of the Defendants’ motion for new trial.

Dr. Orcutt testified that he believed Rosemary fractured her leg during her fall on December 23 and that it displaced sometime later based on the fact that the x-ray from that day did not show a fracture. His failure to state that he believed this to be the case “to a reasonable degree of medical certainty’ does not require a finding that Moore failed to present evidence of causation —• Moore’s “experts were not required to use these magic words in rendering their opinions.”

Based on the testimony outlined above it was possible for the jury to link the testimony of all the witnesses to find that Dr. Singh’s breach of the standard of care resulted in a missed diagnosis of a nondisplaced fracture of Rosemary’s left knee, which later displaced requiring surgery. The jury also could have found that while surgery could have been required in any event, the failure to diagnose resulted in approximately two months of lack of treatment and a more complicated surgery or recovery period.

Accordingly, the trial court erred by granting the motion for directed verdict.

2. Next, Moore argues that the trial court erred by excluding the following testimony of Dr. Orcutt:

QUESTION: Can you tell me in terms of probabilities how probable it might be for a nondisplaced fracture to develop into a displaced fracture in a patient like [Rosemary], assuming that the fracture is diagnosed and you place them on nonweight-bearing restriction?
[ORCUTT]: I’m not sure I can give you a probability of that.
QUESTION: Do you think its 50-50? ....
[ORCUTT]: I would say 20 percent, 30 percent, something like that, likely that it would displace.
QUESTION: So 20 to 30 percent of the patients who have comorbid conditions like [Rosemary] had, even when they’re placed on nonweight-bearing restriction, 20 to 30 percent of those patients who have nondisplaced fractures can develop into displaced fractures; correct?
[ORCUTT]: That would be my best estimate.

Moore also argues that the trial court erred by allowing testimony from Dr. Orcutt:

QUESTION: In [Rosemary’s] case, can you say that it is more likely than not that even if she had ... a nondisplaced fracture that was being treated conservatively, that ultimately she would have progressed to a displaced fracture?
[ORCUTT]: I cannot say that. . . .
QUESTION: You can’t say one way or the other; is that coirrGC’fc
[ORCUTT]: That’s correct.

The trial court excluded Dr. Orcutt’s testimony that approximately 20 to 30 percent of patients like Rosemary who presented with a nondisplaced fracture and were treated with a brace and instructions not to bear weight on the leg would eventually need surgery because their fractures would displace. The trial court determined that the testimony was speculative; but Dr. Orcutt, although he was “unsure” he could provide a response at first, was able to do so without hesitation after the Defendants provided an example of the type of response they were asking for. Because the trial court allowed the later testimony by Dr. Orcutt on the same matter, it abused its discretion by disallowing the testimony as to percentages. “[C]ontradictions go solely to the expert’s credibility, and are to be assessed by the jury when weighing the expert’s testimony.” Accordingly, the trial court erred by excluding the testimony.

Judgment reversed.

McFadden and Boggs, JJ., concur.

Decided March 18, 2014

Reconsideration denied April 3, 2014.

Marvin A. Devlin, for appellants.

Swift, Currie, McGhee & Hiers, Roger E. Harris, Ashley D, Alfonso, for appellees.

       (Citations and punctuation omitted.) Carden v. Burckhalter, 214 Ga. App. 487, 488-489 (1) (b) (448 SE2d 251) (1994) (“It was said [in] Ga. Dept. of Human Resources v. Montgomery, 248 Ga. 465, 466 (284 SE2d 263) [(1981)] that in Georgia, the standard used to review the grant or denial of a directed verdict is the any evidence test; however, this was used to explain substantial evidence and it was dictum. Also, the case cited for the proposition, Speir v. Williams, 146 Ga. App. 880 (247 SE2d 549) [(1978)], never made [such a holding]. A rule that the standard for review of the grant of directed verdict is the any evidence test is often... quoted in dictum”) (citations and punctuation omitted). See also OCGA § 9-11-50 (a).

       Dr. Singh was on vacation from December 31 to January 5 during the later portion of her hospitalization; however, she was the treating physician and discharge physician for Rosemary’s hospitalization during the period.

       The top area of the tibia just under the kneecap.

       The defendants contend that Rosemary was seeking assistance about her right leg, but there is a question of fact as to this issue, which could have been a transcription error. In any event, during his treatment of Rosemary, Dr. Choi uncovered the existence of the healed fracture, and thus, the defendant’s argument that Rosemary was seeking assistance for right leg pain as opposed to left leg pain has no bearing on the issue of Dr. Singh’s potential liability for failure to diagnose the break in late December 2008.

       A displaced fracture is one in which the pieces of bone are no longer correctly aligned in relation to each other.

       (Punctuation omitted.) Knight v. Roberts, 316 Ga. App. 599, 603 (1) (730 SE2d 78) (2012), quoting Walker v. Giles, 276 Ga. App. 632, 638 (624 SE2d 191) (2005).

       See Knight, 316 Ga. App. at 604 (1) (a); Ladner v. Northside Hosp., 314 Ga. App. 136, 136-137 (723 SE2d 450) (2012); Walker, 276 Ga. App. at 638 (1).

        Knight, 316 Ga. App. at 607 (1) (a).

       Id. at 604 (1) (a).

       (Punctuation omitted.) Ladner, 314 Ga. App. at 140, quoting Grinold v. Farist, 284 Ga. App. 120, 121-122 (1) (643 SE2d 253) (2007).

       See, e.g., Knight, 316 Ga. App. at 606 (1) (a); Walker, 276 Ga. App. at 642 (1).

       We recognize that Rosemary had a number of conditions during her stay at the hospital and that Dr. Singh was dealing with all of these issues simultaneously, but this does not change the fact that testimony at trial stated that Dr. Singh breached the standard of care with regard to Rosemary’s left leg.

       See Walker, 276 Ga. App. at 642 (1).

       Id. at 639 (1), n. 7.
      “[R]easonable degree of medical certainty,” while an acceptable means by which an expert may express the confidence the expert has in the conclusion formed and the probability that it is accurate, is not the required standard. Georgia case law requires only that an expert state an opinion regarding . . . causation in terms stronger than that of medical possibility, i.e., reasonable medical probability or reasonable medical certainty.
      (Emphasis in original.) Zwiren v. Thompson, 276 Ga. 498, 503 (578 SE2d 862) (2003).

       See, e.g., Knight, 316 Ga. App. at 606-607 (1) (a); Walker, 276 Ga. App. at 642 (1).

       See Walker, 276 Ga. App. at 648 (2); Knight v. West Paces Ferry Hosp., 262 Ga. App. 220, 223 (585 SE2d 104) (2003) (“Before the trial court can direct a verdict for the movant, he must find from the evidence that there is no evidence of any kind supporting the nonmovant’s position.”) (emphasis in original).

       Because this issue is likely to recur on retrial, we address this enumeration of error.

       This is so despite the fact that Moore objected based on speculation at the deposition.

       (Punctuation omitted.) Naik v. Booker, 303 Ga. App. 282, 286 (692 SE2d 855) (2010), quoting Thompson v. Ezor, 272 Ga. 849, 853 (536 SE2d 749) (2000).


text:
    A14A0128.
    ROBBINS v. THE STATE.
    (757 SE2d 452)
   ELLINGTON, Presiding Judge.

Bruce Robbins appeals from an order of the Superior Court of Clayton County which denied his pro se motion to set aside allegedly void sentences. In denying the motion, the court held that Robbins had failed to demonstrate that his enhanced sentences, which were entered pursuant to OCGA § 17-10-7 (c), were void. Robbins contends that the court erred in denying his motion, arguing that recidivist punishment was not authorized because one of the three convictions upon which the court relied to enhance his sentences had been discharged under the First Offender Act. For the following reasons, we affirm.

The record shows that, on December 13, 2006, a jury convicted Robbins of armed robbery (Count I), aggravated assault with intent to murder (Count II), aggravated battery (Count III), and possession of a firearm during the commission of a crime (Count V), convictions arising from an incident in which Robbins shot the victim in the head, destroying the victim’s right eye, and then took $60 from the victim at gunpoint. During the sentencing hearing, the State presented certified copies of three prior felony convictions in aggravation, all of which were admitted without objection. Specifically, the State proved that Robbins had three prior felony convictions from Fulton County, one for burglary and two for possession of cocaine.

On January 5, 2007, the court imposed the following sentences: Count I, life imprisonment without parole; Count II, twenty years imprisonment, concurrent with Count I; Count III, twenty years imprisonment, concurrent with Counts I and II; and, Count V, five years imprisonment, consecutive to Count I. Robbins appealed his convictions to this Court, and we affirmed them. Robbins v. State, 293 Ga. App. 684 (667 SE2d 684) (2008).

On April 26, 2013, Robbins filed a pro se motion to vacate his sentences, contending that the trial court erred in sentencing him as a recidivist because his prior burglary conviction had been discharged under the First Offender Act, OCGA § 42-8-60. The lower court denied the motion on the merits, concluding that the record did not support Robbins’ contention that it had sentenced Robbins as a first offender as alleged. On appeal, Robbins makes the same argument. He contends that, after discounting the burglary conviction, his recidivist sentences are not supported by three prior convictions as required by law and are, therefore, illegal and void. Although the State agrees with the court’s finding as to the merits, the State contends that Robbins’ claim is not cognizable as a void-sentence claim and that the court below should have dismissed the motion for want of jurisdiction instead of denying it.

Robbins filed the motion to vacate his sentence six years after the court imposed the sentence. When a sentencing court has imposed a sentence of imprisonment, its jurisdiction to later modify or vacate that sentence is limited. OCGA § 17-10-1 (f). But a sentencing court retains jurisdiction to correct a void sentence at any time. Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804) (2010); see also Harper v. State, 286 Ga. 216, 217 (1), n. 1 (686 SE2d 786) (2009); Williams v. State, 271 Ga. 686, 688-689 (1) (523 SE2d 857) (1999). Consequently, the sentencing court had jurisdiction over Robbins’ motion only to the extent that the motion presented a cognizable claim that the sentence was void.

“A sentence is void if the court imposes punishment that the law does not allow.” (Citation omitted.) Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991).

A first offender’s guilty plea does not constitute a “conviction” as that term is defined in the Criminal Code of Georgia because under the first offender statute, until an adjudication of guilt is entered, there is no conviction. Without three prior felony convictions, imposing a recidivist sentence on [Robbins] pursuant to OCGA § 17-10-7 (c) is imposing a sentence that the law will not allow, and a challenge to such void sentence cannot be waived by the failure to object.

(Citations, punctuation and footnotes omitted.) Swan v. State, 276 Ga. App. 827, 830 (2) (625 SE2d 97) (2005). See also von Thomas v. State, 293 Ga. 569, 573-574 (2) (748 SE2d 446) (2013) (distinguishing as cognizable those claims concerning recidivist punishment where a predicate offense does not constitute a conviction within the meaning of OCGA § 17-10-7 (c) from those that are otherwise not cognizable).

Robbins’ mandatory maximum sentences are authorized under OCGA § 17-10-7 (c) if the State carried its burden of satisfying the statutory prerequisites. Robbins does not contest the validity of his two convictions for possessing cocaine. The certified copy of Robbins’ burglary conviction shows that Robbins was sentenced to a term of probation to be served at a halfway house; it does not indicate that the sentence was entered pursuant to the First Offender Act. On Robbins’ probation sheet concerning the burglary conviction, the court checked the box pertaining to standard as opposed to first offender punishment. Robbins submitted an uncertified computer printout titled “Court Case Summary” that indicates that he received first offender treatment on a burglary conviction, but the case number assigned to that conviction does not match the case number on the conviction that was presented to the sentencing court. Given the record before us, the sentencing court correctly concluded that the evidence showed that the State complied with the law and that the record did not support Robbins’ claim that he pleaded guilty to burglary under the First Offender Act.

Decided April 3, 2014.

Bruce Robbins, pro se.

Tracy Graham-Lawson, District Attorney, Frances C. Kuo, Assistant District Attorney, for appellee.

Finally, Robbins’ sentences are within the máximums authorized by law. OCGA § 16-8-41 (b) authorizes life imprisonment for armed robbery. Because Robbins had three prior felony convictions, the lower court properly sentenced him to life without parole for armed robbery pursuant to OCGA § 17-10-7 (c). Robbins’ remaining sentences are also within the máximums authorized by law. See OCGA §§ 16-5-21 (b) (aggravated assault); 16-5-24 (b) (aggravated battery); and 16-11-131 (b) (possession of a firearm during the commission of a crime). Consequently, the trial court did not err in denying Robbins’ motion to vacate his sentences.

Judgment affirmed.

Phipps, C. J., and McMillian, J., concur.

       When Robbins was sentenced, OCGA § 17-10-7 (c) provided, in relevant part:
      Except as otherwise provided . . . , any person who, after having been convicted under the la ws of this state for three felonies..., commits a felony within this state other than a capital felony must, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.