author: Blackwell, Judge.

text:
    A12A0759.
    BARBER v. THE STATE.
    (730 SE2d 176)
   Blackwell, Judge.

Vincent Cordero Barber was tried by a DeKalb County jury and convicted of rape, statutory rape, and child molestation. The court below concluded that Barber was subject to the sentencing provisions of OCGA § 17-10-7 (c), and pursuant to those provisions, the court sentenced Barber to imprisonment for life without parole for the rape, as well as imprisonment for concurrent terms of 20 years without parole for the statutory rape and child molestation. Barber appeals, contending that he is not properly subject to the sentencing provisions of OCGA § 17-10-7 (c), and with that contention, we agree. Accordingly, we vacate his sentence and remand for resentencing.

According to OCGA § 17-10-7 (c), when someone commits a felony, having already been convicted of three earlier felonies, he must serve the sentence imposed upon his conviction for the fourth or subsequent felony without parole:

[A]ny person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state shall, 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.

OCGA § 17-10-7 (c). In this case, Barber was convicted of rape, statutory rape, and child molestation, all crimes that he committed, according to the indictment, in or around June 2007. The record shows that, prior to June 2007, Barber had been twice convicted of felonies, once in 2001 for felony assault and receiving stolen property in Ohio, and once in 2002 for impersonating a police officer in DeKalb County. The record also shows that, after June 2007, but before his conviction in this case, Barber had been convicted of a third felony, forgery. Based on these three felonies, the court below concluded that OCGA§ 17-10-7 (c) applied.

Barber argues, however, that the third prior felony conviction does not count for the purposes of OCGA § 17-10-7 (c), inasmuch as that conviction was entered only after he committed the crimes of which he was convicted in this case. We agree. As we have explained before, “[w]hen we consider the meaning of a statute, we must always presume that the General Assembly means what it says and says what it means,” Strength v. Lovett, 311 Ga. App. 35, 43 (2) (a) (714 SE2d 723) (2011) (citations and punctuation omitted), and an unambiguous statute must be afforded its plain meaning. See Northeast Atlanta Bonding Co. v. State of Ga., 308 Ga. App. 573, 577-578 (1) (707 SE2d 921) (2011). The terms of OCGA § 17-10-7 (c) are clear and unambiguous, and they plainly forbid parole only when a defendant, “after having been convicted” of three felonies, “commits [another] felony.” See Dobbs v. State, 180 Ga. App. 714, 715-716 (2) (350 SE2d 469) (1986).Accordingly, the record fails to show a basis for applying the sentencing provisions of OCGA § 17-10-7 (c) in this case, the sentence imposed by the trial court must be set aside, and the case remanded to the court below for resentencing.

Judgment of convictions affirmed, sentence vacated, and case remanded for resentencing.

Mikell, P. J., and Miller, J., concur.

Decided July 9, 2012.

Gerard B. Kleinrock, for appellant.

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

       OCGA§ 16-6-1 (a) (1).

       OCGA§ 16-6-3.

       OCGA§ 16-6-4 (a) (1).

       Barber also complains about the refusal of the court below to accept two plea bargains that he struck with the prosecuting attorney, bargains that contemplated the dismissal of the rape charge, a guilty plea to a charge less serious than rape, and a partially probated sentence of ten years; about the failure of his lawyer to object to the grounds on which the court refused to accept these plea bargains; and about the failure of his lawyer to object at trial to certain testimony that, Barber says, is hearsay. These claims of error lack merit and do not warrant much discussion. About the plea bargains, the record shows that, when the trial judge refused to accept them, she expressed a number of concerns, including that Barber had negotiated pleas in two prior prosecutions in which rape charges against him were dismissed, that she had not yet heard the evidence in this case, her worry that she had not been given full and accurate information about Barber and his criminal history, that she felt like she was being “railroaded into a plea” by the lawyers, that the case only recently had been reindicted to charge rape, and her doubts about the assessment given by the prosecuting attorney of the weaknesses of his case and, therefore, the reasons for his plea offers to Barber. A trial judge has wide discretion to accept or reject a negotiated plea, Parker v. State, 211 Ga. App. 187, 188 (438 SE2d 664) (1993) (en banc), and the concerns expressed by the trial judge here were reasonable ones. The trial judge did not abuse her discretion in rej ecting the plea bargain, and any obj ection to her grounds for doing so would have been futile. With respect to hearsay, Barber complains that a counselor testified about statements made by the mother of the victim, and he complains that the mother testified about statements made by the victim. But both the victim and her mother testified at trial and were subject to unrestricted cross-examination, such that their out-of-court statements were not hearsay, Anderson v. State, 311 Ga. App. 732, 739 (2) (d) (716 SE2d 813) (2011), and any objection would have been futile. Accordingly, we affirm the convictions below.

       Our understanding of OCGA § 17-10-7 (c) is consistent with the principle that “[c]riminal statutes are construed strictly against the State, they must be read according to the natural and obvious import of their language, and their operation should not be limited or extended by application of subtle and forced interpretations.” Perkins v. State, 277 Ga. 323, 325-326 (2) (588 SE2d 719) (2003) (citations and punctuation omitted).

       The State says that the third prior felony counts for purposes of OCGA § 17-10-7 (c) because Barber committed that felony before he committed the crimes of which he was convicted in this case, even if he was only convicted of that third felony afterward. In support of this argument, the State points to Covington v. State, 226 Ga. App. 484 (486 SE2d 706) (1997) (“Covington I”), where we said that “[i]t is not the date of the conviction which determines the applicability of OCGA § 17-10-7, but the date of the commission of the offense.” Id. at 486 (6) (citation and punctuation omitted). Butin Covington I, we were addressing OCGA§ 17-10-7 (a), see Covington v. State, 231 Ga. App. 851, 852 (501 SE2d 37) (1998) (“Covington II”), and to the extent that we said anything in Covington I about OCGA § 17-10-7 (c), it is dicta. Dobbs, the precedent upon which we rely in this case, concerned the sentencing provision at issue here, the provision now codified at OCGA § 17-10-7 (c). See Dobbs, 180 Ga. App. at 715-716 (2).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A12A0098.
    BREWTON v. POSS.
    (728 SE2d 837)
   DOYLE, Presiding Judge.

Kenneth Jason Poss initiated a proceeding to adopt T. J. B., the biological son of Kristen Poss, Kenneth’s wife. Lee Thomas Brewton, the putative biological father, filed a petition for legitimation of T. J. B. as a part of that proceeding. Kenneth moved to quash the petition, and the superior court granted the motion, giving rise to this discretionary appeal. Brewton contends that the superior court erred by ruling that he failed to meet the requirements for filing a petition for legitimation under OCGA § 19-7-22 and therefore denying his motion to sever the petition he filed in the adoption proceeding. For the reasons that follow, we reverse.

The record shows that in February 2011, Kenneth filed in superior court a petition for adoption of T. J. B. and notified Brewton by publication. The last date of publication was February 25, 2011. On March 4,2011, Brewton, represented by counsel, filed in the same court a petition for legitimation of his relationship with T. J. B., naming Kristen as a defendant, and he attempted to serve Kristen by mailing a copy to Albert Stone, Jr., who had filed the adoption petition on behalf of Kenneth. Brewton’s legitimation petition was filed with the same civil action number as Kenneth’s adoption petition, and no filing fee was required by the clerk.

On March 31, 2011, Kenneth moved to quash Brewton’s legitimation petition. After receiving the motion, Brewton personally served Kristen on April 20, 2011. On May 11, 2011, Kristen appeared pro se and filed an answer to the legitimation petition and a counterclaim for pregnancy-related medical costs and child support. Brewton filed a response to the motion to quash and moved to sever his legitimation petition from the adoption proceeding. After a hearing, the superior court granted Kenneth’s motion to quash, thereby denying Brewton’s motion to sever, on the ground that Brewton had failed to properly file his legitimation petition. Brewton filed an application for discretionary appeal, which this Court granted.

Brewton contends that the trial court erred by ruling that he failed to properly file his legitimation petition in accordance with OCGA § 19-7-22, which provides as follows, in relevant part:

(a) Afather of a child born out of wedlock may render his relationship with the child legitimate by petitioning the superior court of the county of the residence of the child’s mother or other party having legal custody or guardianship of the child .... If a petition for the adoption of the child is pending, the father shall file the petition for legitimation in the county in which the adoption petition is filed.
(b) The petition shall set forth the name, age, and sex of the child, the name of the mother, and, if the father desires the name of the child to be changed, the new name. If the mother is alive, she shall be named as a party and shall be served and provided an opportunity to be heard as in other civil actions under Chapter 11 of Title 9, the “Georgia Civil Practice Act.”

Based on this Code section, the trial court ruled that Brewton’s petition “had no legal effect” because it was not filed as a separate civil action apart from the pending adoption proceeding.

OCGA§ 19-7-22 does not define the term “petition,” and does not explicitly state whether the petition must be filed as a separate civil action, or whether it could be filed as part of a pending action. Thus, we turn to the rules of statutory construction, which “require us to construe [the] statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. At the same time, we must seek to effectuate the intent of the legislature.”

Turning to the terms of OCGA § 19-7-22, we note that although the Code section does not explicitly state that a legitimation petition must be a separate civil action, the Code section employs language suggesting that a legitimation petition would initiate a separate action as opposed to merely requesting relief within another pending case. For example, subsection (b) refers to “other civil actions,” meaning that a legitimation petition itself is viewed as a type of civil action. Subsection (f.l) refers to the petition as a “legitimation action ,” This language within OCGA § 19-7-22 suggests that legitimation petitions are separate civil actions. And subsection (g), applicable to suits for paternity under OCGA § 19-7-43 (a) (4), explicitly state that an alleged father may file a third-party action for legitimation as part of his response to the paternity suit. The absence of language explicitly providing for a similar avenue in the adoption context implies that the legislature intended legitimation petitions to be stand-alone actions.

Moreover, the adoption statutes, which are implicated in this context, are informative. OCGA § 19-8-12, which requires an adoption petitioner to give notice to the biological father, provides that a biological father will lose all rights to the child unless he files a petition to legitimate and files “notice of the filing of the petition to legitimate . . . with the court in which the [adoption] action ... is pending . . . ” It would make no sense to require a separate notice of the filing of the legitimation petition if it already was a part of the adoption proceeding, and such a requirement would be superfluous. Therefore, like the legitimation statute, the adoption statute functions as if a legitimation petition would be filed in a separate action.

In light of these statutory schemes, we conclude that the petition in this case should have been filed as a separate civil action. Having so concluded, we must nevertheless consider whether the trial court erred by denying Brewton’s motion to sever. It is clear that Brewton’s petition complied with the substance of the legitimation statute, other than by having a separate civil action number: the petition contained the requisite information, it was served on the mother, and it was timely filed in the proper court. Further, Brewton’s failure to file his petition as a separate civil action caused no prejudice to anyone. OCGA § 1-3-1, applying to the construction of statutes generally, provides that “substantial compliance with any statutory requirement... shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law.”' Applying this policy here is appropriate because “there can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to its offspring. . . . [Termination of that right] can be done by the court only under the most carefully controlled and regulated circumstances____” Therefore, in light of the fundamental right at stake, the lack of prejudice, and Brewton’s substantial compliance with the statute in every way other than prevailing upon the clerk to file the petition under a different civil action number, we conclude that the trial court abused its discretion by denying his motion to sever.

Kenneth argues that Brewton’s failure to pay a filing fee and file a civil case filing form required by OCGA § 9-11-3 (b) are fatal to his legitimation claim. But the record shows that the clerk, when asked by Brewton, did not require payment of a filing fee, and Brewton’s attorney merely followed the procedure suggested by the clerk. OCGA § 9-11-3 (b) provides:

... If, after a civil action has been filed, the court presiding over the civil action decides that the civil case filing form has not been filed or has been filed incorrectly, the court shall require the plaintiff to file the civil case filing form or an amended form. In no case shall the failure to accurately complete the civil case filing form required by this Code section provide a basis to dismiss a civil action.

Thus, under the circumstances of this case, any such filing defects can be cured upon remittitur.

Judgment reversed.

Andrews and Boggs, JJ., concur.

Decided June 14, 2012

Reconsideration denied July 10, 2012.

Christopher M. Blanchard, for appellant.

James B. Outman, Albert L. Stone, Jr., for appellee.

       Brewton filed his application pursuant to OCGA § 5-6-35 (a) (2), which addresses domestic relations cases. Having granted the application, we need not decide whether the ruling on his legitimation petition would he directly appealable under the collateral order doctrine. See, e.g., Britt v. State, 282 Ga. 746, 748 (1) (653 SE2d 713) (2007).

       See OCGA§ 19-8-12 (b), (c).

       Kristen Poss was not a party to the adoption action.

       But see Phagan v. State, 287 Ga. 856, 858-859 (700 SE2d 589) (2010) (“petition” and “complaint” are synonymous, and both are pleadings within the purview of the Civil Practice Act).

       Compare Opensided MRI of Atlanta, LLC v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010) (OCGA § 9-11-9.1, on its face, required “a motion to dismiss to be [separately] filed in addition to the first responsive pleading,” because it required the defendant to raise its dispositive defense “ ‘by motion to dismiss filed contemporaneously with its initial responsive pleading.’ ”) (emphasis in original).

       See Cook v. NC Two, L.P., 289 Ga. 462, 465 (712 SE2d 831) (2011) (“rules of statutory construction are not applicable when the statute is plain and unambiguous and susceptible to but one natural and reasonable construction since judicial construction of such a statute is unauthorized”).

       (Citations omitted.) Slakman v. Continental Cas. Co., 277 Ga. 189, 191 (587 SE2d 24) (2003), citing OCGA § 1-3-1 (a).

       (Emphasis supplied.)

       See SRB Investment Svcs., LLLP v. Branch Banking & Trust Co., 289 Ga. 1, 6 (3) (a) (709 SE2d 267) (2011) (presuming that omission of certain language was intentional because another statute contained the language); In the Interest of T. C. D., 281 Ga. App. 517, 518 (636 SE2d 704) (2006) (language cannot be added to a statute by judicial decree).

       (Emphasis supplied.) OCGA § 19-8-12 (e). Consistent with the notice scheme, Uniform Superior Court Rule 39.6 requires adoption dockets to be maintained separate from regular civil dockets.

       The fact that Brewton did not complete service on the mother within the 30-day deadline in OCGA § 19-8-12 (e) was not fatal for the same rationale as explained in In the Interest of A. H., 279 Ga. App. 77, 82 (2) (630 SE2d 587) (2006).

       (Emphasis supplied.)

       (Punctuation omitted.) In the Interest of A. H., 279 Ga. App. at 82 (2).

       (Emphasis supplied.)


author: MCFADDEN, Judge.

text:
    A12A0048.
    HOGAN v. THE STATE.
    (730 SE2d 178)
   MCFADDEN, Judge.

Vincent Hogan appeals from his conviction for false swearing, arguing that under the rule of lenity, he should have received a misdemeanor, rather than a felony, sentence. However, because there is no uncertainty as to the punishment that applies to the offense of false swearing, the rule of lenity does not apply and the trial court correctly sentenced Hogan for a felony.

The record shows that in December 2010, Hogan was indicted for one count of false swearing. In June 2011, he entered a nonnegotiated guilty plea to the charge. At the plea hearing, the state set forth, as the factual basis for the plea, that in September 2009, Hogan executed an affidavit of candidacy stating that he was not a convicted felon, or, if he was a convicted felon, that his sentence had expired at least ten years earlier and all his rights had been restored; that such statement was false because Hogan had been convicted of prior felonies, including a federal felony for which the sentence had expired in 2004, only five years before he executed the affidavit; and that his rights had not been restored. Hogan stipulated that there was a factual basis for the plea. The trial court accepted the plea and imposed a five-year sentence, ordering Hogan to serve 18 days in confinement and the rest of the sentence on probation.

Hogan claims that the trial court erred in holding that the rule of lenity does not apply to his sentence for false swearing in violation of OCGA §§ 21-2-565 and 16-10-71. Under the rule of lenity,

where any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of two penalties administered. The rule derives from the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should____The rule of lenity is particularly applicable where the two crimes at issue involve different grades of punishment, i.e., a misdemeanor and a felony.

(Citations and punctuation omitted.) Dixon v. State, 278 Ga. 4, 7 (1) (d) (596 SE2d 147) (2004). In the instant case, there is no uncertainty as to the penal clause that is applicable to the crime to which Hogan pled guilty.

OCGA § 21-2-560, which addresses the making of false statements generally, provides:

Except as otherwise provided in Code Section 21-2-565, any person who shall make a false statement under oath or affirmation regarding any material matter or thing relating to any subject being investigated, heard, determined, or acted upon by any public official, in accordance with this chapter, shall be guilty of a misdemeanor.

(Emphasis supplied.) Thus, it is clear from the plain language of this statute that OCGA § 21-2-565 provides an exception to the general provision that making a false statement under oath is a misdemeanor.

Consistent with that exception, OCGA § 21-2-565 (a) provides:

Any person knowingly making any false statement in connection with filing a notice of candidacy under Code Section 21-2-132 or in connection with qualifying as a candidate for party nomination under Code Section 21-2-153 commits the offense of false swearing.

(Emphasis supplied.) The offense of false swearing is a felony that is codified at OCGA § 16-10-71, and the annotations section of OCGA § 21-2-565 specifically cross-references OCGA § 16-10-71. Indeed, in establishing that making false statements in connection with a notice of candidacy constitutes the offense of false swearing, the General Assembly expressly indicated that a person convicted of such offense “shall be punished as provided by [OCGA § 16-10-71].” Ga. L. 1976, p. 206, § 2. In that regard, OCGA § 16-10-71 (b) provides that “[a] person convicted of the offense of false swearing shall be punished by a fine of not more than $1,000.00 or by imprisonment for not less than one nor more than five years, or both.”

In Georgia, a felony... is defined as any crime punishable by death, by imprisonment for life, or by imprisonment for more than 12 months, while a misdemeanor ... is defined as any crime other than a felony, i.e., punishable in a manner less than a felony . . . (12 months or less).

(Citation, punctuation and emphasis omitted.) Calbreath v. State, 235 Ga. App. 638, 639 (1) (510 SE2d 145) (1998). See also OCGA § 16-1-3 (5), (9). Thus, Hogan’s false swearing offense, punishable by imprisonment for more than 12 months, constitutes a felony. Because there is no uncertainty as to the applicable sentence for that crime, the rule of lenity does not apply, and the trial court’s imposition of a five-year sentence was appropriate and within the sentencing range for that offense. Accordingly, we find no error.

Decided July 10, 2012.

Steven L. Sparger, for appellant.

Larry Chisolm, District Attorney, Christine S. Barker, Assistant District Attorney, for appellee.

We note that Hogan has cited dicta in a footnote from the case of Jolley v. Grantham, 206 Ga. App. 100, n. 2 (424 SE2d 362) (1992), which indicates that false swearing on a notice of candidacy under OCGA § 21-2-565 is a misdemeanor. Not only is the language in that footnote nonbinding dicta, but as explained above, it is incorrect to the extent it indicates that the offense of false swearing as proscribed by OCGA § 21-2-565 is punishable as a misdemeanor, rather than as a felony. Moreover, the Supreme Court of Georgia recently criticized Jolley as having incorrectly addressed an issue outside of this court’s jurisdiction, noting that “the Court of Appeals improperly decided, albeit without mention of jurisdiction, an appeal of a challenge to a candidate’s qualifications to run for county sheriff brought under OCGA§ 21-2-6. [Cit.]” Cook v. Bd. of Registrars of Randolph County, 291 Ga. 67, 71 (2) (a), n. 2 (727 SE2d 478) (2012). Consequently, to the extent Jolley states that offense of false swearing under OCGA § 21-2-565 is punishable as a misdemeanor, rather than as a felony, it is hereby disapproved.

Judgment affirmed.

Ellington, C. J., Barnes, P. J., Phipps, P. J., Mikell, P. J., Doyle, P. J., Andrews, Miller, Adams, Blackwell, Dillard, and Boggs, JJ., concur.


text:
    A12A0518, A12A0519.
    BROCK BUILT, LLC v. BLAKE; and vice versa.
    (730 SE2d 180)
   DOYLE, Presiding Judge.

In these consolidated appeals, we consider for a second time an employment dispute between plaintiff Henry Blake and defendant Brock Built, LLC. After the trial court ruled on the parties’ cross-motions for summary judgment, the case proceeded to a bench trial, and the trial court entered judgment in favor of Blake. The parties

filed the instant cross-appeals, and we affirm the judgment, but vacate the attorney fees and costs award and remand for proper calculation, for the reasons that follow.

In Brock Built, LLC v. Blake, we reviewed the trial court’s order on the parties’ cross-motions for summary judgment, explaining that this litigation began when

Blake, the former president of . . . Brock Built, LLC, sued Brock Built alleging that Brock Built breached his employment contract by terminating him and failing to pay the severance and incentive compensation due under the terms of the contract. Blake further alleged that Brock Built tortiously breached its duty of good faith and fair dealing in determining its annual net profit for the purposes of calculating Blake’s incentive compensation. Brock Built filed a counterclaim alleging that it was Blake who breached both the contract and his fiduciary duties to Brock Built by engaging in certain conduct during his employment. Both parties filed cross-motions for summary judgment. The trial court granted Blake summary judgment on his claims for incentive and severance compensation and on Brock Built’s counterclaim for breach of fiduciary duty. In turn, the trial court denied Brock Built’s motion for summary judgment on Blake’s claims for incentive compensation and tortious breach of the duty of good faith and fair dealing.

This Court affirmed the grant of summary judgment to Blake on his claim for severance compensation; reversed the grant of summary judgment to Blake on his claim for breach of contract based on Brock Built’s failure to pay him the full amount of incentive compensation to which he was entitled, concluding that “the record evidence presents a question of fact on this issue”; affirmed the grant of summary judgment to Blake on Brock Built’s counterclaim for breach of fiduciary duty; and reversed the denial of summary judgment to Brock Built on Blake’s claim for breach of good faith and fair dealing.

The case was then remanded to the trial court for determination of the amount of severance and incentive compensation due to Blake and whether to award him attorney fees. Following a bench trial, the trial court entered judgment in favor of Blake as follows: severance pay in the amount of $180,000 (representing 12 months salary); incentive compensation/percentage of net profits in the amount of $19,809.20; attorney fees and costs in the amount of $240,104; and interest in the amount of $66,780.

Brock Built appeals in Case No. A12A0518, challenging the severance and attorney fees portions of the judgment, and Blake appeals in Case No. A12A0519, arguing that the incentive-compensation award was insufficient and that the trial court erred by overruling his objection to the testimony of Brock Built’s accountant after Brock Built asserted the accountant-client privilege during discovery.

When reviewing the parties’ enumerations, we are mindful that

[o]n appellate review of a bench trial, the factual findings shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. In bench trials, the judge sits as trier of fact[,] and the court’s findings are analogous to a jury’s verdict and should not be disturbed if there is any evidence to support them.

Case No. A12A0518

1. Breach of contract Severance. Brock Built argues that the trial court erred by awarding Blake twelve months severance instead of six months. We disagree.

The employment contract between Brock Built and Blake entitled Blake to severance compensation if Brock Built terminated the employment relationship, unless it was terminated for cause. The contract specified that Brock Built was required to pay Blake twelve months salary upon termination, unless Blake “becomes employed with a third party within six months of his termination from the Company,” in which case Brock Built was required to pay Blake six months salary. Although Brock Built initially argued that Blake voluntarily resigned, this Court previously concluded that the “facts simply do not support a conclusion that Blake voluntarily resigned.” Thus, the issue at trial was whether Blake “was employed with a third party within six months” of his termination from Brock Built.

Blake was terminated from Brock Built in February 2006. It is undisputed that in February 2006, Blake incorporated Terranova Properties, Inc., a “residential construction and remodeling” company, listing himself as the incorporator, president, and sole member of the Board of Directors. Blake testified that Terranova Properties was “a one-man operation,” and he was solely responsible for preparing estimates, proposals, bids, contracts, and invoices, reviewing bills, and maintaining the profitability of the corporation. Blake concedes that he began doing business for Terranova Properties in February 2006, the same month his employment relationship with Brock Built was terminated.

The trial court found that

[t]he plain language of the agreement says that Blake must become “employed with a third party” within six months. The [c]ourt does not find that Blake’s income from his own LLC is synonymous with “employment with” a “third party[.”] For this reason, Blake is entitled to the equivalent of twelve months[] salary, or $180,000, as severance.

Brock Built argues that the trial court erred by determining that Blake did not forfeit half of his severance by becoming employed by Terranova Properties, Inc., which Brock Built argues is a third-party. This argument misconstrues the trial court’s ruling. The trial court did not find that Terranova Properties was not in fact a third-party, but instead concluded that Blake’s role in his own corporation did not constitute “employment with a third party” as required by the contract in order to find that Blake forfeited half of his severance. We agree with the trial court and affirm the award of 12 months severance to Blake.

2. Brock Built also challenges the attorney fee and cost award to Blake. We affirm the imposition of attorney fees and costs against Brock Built, but we reverse and remand the case to the trial court for determination of the proper amount of the award.

The agreement between the parties provided that

[t]he Company shall pay or reimburse Blake for all costs and expenses (including court costs and reasonable attorney! ] fees) incurred by Blake in connection with any litigation seeking to enforce Blake’s rights under this Agreement, provided that Blake is substantially successful in such litigation.

(a) Brock Built argues that Blake was not entitled to attorney fees and costs under the parties’ agreement because he was not “substantially successful” in this litigation, pointing out that Brock Built obtained summary judgment on Blake’s claim for breach of good faith and fair dealing. We are unpersuaded by this argument.

Blake alleged that he was entitled to severance and incentive compensation under his agreement with Brock Built, and he framed his claims as breach of contract and breach of good faith and fair dealing. Although the trial court granted summary judgment to Brock Built on the latter claim, Blake successfully obtained a judgment for both severance and incentive compensation. The fact that the amount awarded was less than what he sought does not mean that he was not “substantially successful” in this litigation. Accordingly, we find no error in the trial court’s decision to award Blake attorney fees and costs.

(b) Brock Built also contends that the trial court erred by awarding Blake $240,104 in attorney fees and costs because he failed to demonstrate the reasonableness of the amount sought.

In Georgia, an attorney cannot recover for professional services without proof of the value of those services. A court may consider a contingent fee agreement and the amount it would have generated as evidence of usual and customary fees in determining both the reasonableness and the amount of an award of attorney fees. When a party seeks fees based on a contingent fee agreement, the party must show that the contingency fee percentage was a usual or customary fee for such case and that the contingency fee was a valid indicator of the value of the professional services rendered. In addition, the party seeking fees must also introduce evidence of hours, rates, or some other indication of the value of the professional services actually rendered.

At trial, Blake’s attorney testified that he charged Blake a 40 percent contingency fee, and he submitted his bills. He further testified that the customary fee in this area in cases such as this one is usually 40 percent. “[C]onstruing the evidence in favor of [Blake], there was evidence that the contingency fee [he] agreed to pay was a valid indicator of the value of [his] attorney’s services.”

As Blake concedes on appeal, however, the trial court’s award calculation was erroneous. Blake’s counsel requested 40 percent of the total damages awarded, explaining that because the trial court granted Brock Built summary judgment on Blake’s tort claim for breach of the duty of good faith and fair dealing, he could recover only those costs incurred in pursuing his breach of contract claims. The trial court, however, awarded Blake 40 percent of the total amount of damages Blake sought at trial, including the amount he sought on his incentive compensation claim. Therefore, we affirm the imposition of attorney fees and costs, but we vacate the attorney fees and costs award and remand the case for proper calculation thereof consistent with this opinion.

Case No. A12A0519

3. Blake argues that the trial court erred by improperly calculating the amount of incentive compensation he was contractually entitled to receive. We disagree.

Pursuant to the employment agreement, Brock Built agreed to pay Blake a designated annual base salary, plus “incentive compensation,” which was comprised of a set percentage of the company’s “profit margin.” The agreement defined “profit margin” as

the net profit of the Company before federal and state income taxes, determined in accordance with accepted accounting practices by the accounting firm employed by the Company and adjusted to exclude the IRS inventory adjustment. The determination of profit margin made by the accounting firm employed by the Company shall be final and binding.

At trial, Brock Built’s independent accountant, Elizabeth Sal-vati, testified that the company’s net income for the relevant year — 2005 — was $944,220, as set forth in the company’s 2005 financial statement. Salvati stated that the statement was prepared by HLB Gross Collins, the independent accounting firm with which Salvati was employed, in accordance with generally accepted accounting principles (“GAAP”).

Blake’s expert, Francis Dean Driskell III, a forensic accountant, testified that in his opinion, Brock Built’s 2005 financial statement was not prepared in accordance with GAAP. Driskell further testified that Brock Built’s 2005 tax returns (specifically, the IRS Schedule M-l), which reported the company’s net income as $3.1 million, was “a reasonable proxy” for determining the company’s net profits according to GAAP. Driskell conceded, however, that he did not reach an independent determination of the company’s net income for 2005 based on Brock Built’s financial information.

At the conclusion of the evidence, the trial court concluded that Brock Built’s net profits for 2005 were $944,220. The trial court concluded in the final order that Brock Built’s accountant testified that

the net profit statement [the accounting firm] produced for Brock Built in 2005, reflecting profits of $944,220, is accurate. Plaintiff has failed to carry his burden of proving by a preponderance of the evidence that the net profits for 2005 were other than those represented by the accountants. Thus, the financial statement produced by HLB Gross Collins — the accounting firm employed by the Company — properly reflects the “profit margin” upon which Blake’s bonus would be based, as contemplated by the parties in their contract. The evidence producedby [Blake], i.e. [,] the 2005 M-1 reflecting $3 million “net profit per books,” was explained by the accountant, Ms. Salvati, as representing a difference between financial accounting and tax accounting, and as being caused by the reporting of past years’ income to the IRS in 2005. [Blake] failed to produce persuasive evidence to the contrary.
Thus, given the clear language of the contract that the parties would use the accountant’s calculation to determine profit margin for the purpose of calculating Blake’s share of profit (“bonus”), the parties are bound by that plain language. In fact, in the contract, which both sides testified was negotiated and revised by both, the parties agreed that the accountant’s calculation would be “final and binding.” Blake’s bonus, therefore, is calculated using the figure $944,220. Blake is entitled to a bonus (as share of the 2005 net profits) of $19,809.20.

Blake argues that the trial court “erred by disregarding the sworn statement by Brock Built (made to both the federal taxing authority and to banks) that its ‘net income per books’ for 2005 was over $3.1 million.” This argument is belied by the trial court’s order, which clearly addresses the discrepancy between the company’s financial statement and its tax return. Regardless, when

reviewing the fact findings of a trial court in a nonjury trial, this Court will not disturb them if there is any evidence to sustain them[,] and this Court does not make credibility determinations. Although [Blake] may disagree with the credibility determinations made by the trial court, it cannot be said on the record before us that there is no evidence to support the trial court’s conclusions.

4. Finally, Blake argues that the trial court erred by overruling his objection to the admission of evidence from Salvati because Brock Built asserted the accountant-client privilege during discovery. We find no basis for reversal.

The parties filed a consolidated pretrial order on March 29,2010, and Brock Built listed Salvati as a “may call” witness in the order. The bench trial in this case commenced on December 1, 2010. The trial was continued to May 31, 2011, when Salvati testified. After Salvati responded to questions regarding Brock Built’s financial statement for 2005, defense counsel began to question her about the company’s 2005 tax return. Blake’s attorney objected, explaining that during Salvati’s April 2007 deposition, Brock Built’s counsel instructed her not to offer any testimony regarding the tax return. The trial court implicitly overruled the objection, explaining to Blake’s attorney that

there’s a way that you can bring that to the [c]ourt’s attention. And if you wanted me to force them to make her discuss those tax issues before she testified at trial, I would have been happy to take that issue up. But we haven’t done that, so I’m going to let her testify about it, especially since her signature is on the tax document.

Decided July 10, 2012

Roberts & Daughdrill, Brian E. Daughdrill, Julie N. Wood, for appellant.

Munger & Stone, Thomas J. Hunger, Benjamin A. Stone, for appellee.

“The admission of evidence is generally committed to the sound discretion of the trial court, whose determination shall not be disturbed on appeal unless it amounts to an abuse of discretion.” Here, given Blake’s failure to file a motion in limine to exclude Salvati’s testimony or a motion to compel her testimony regarding the tax returns once Brock Built listed her as a may-call witness in the consolidated pretrial order, we find no abuse of discretion in the trial court’s decision to permit Salvati’s testimony on this issue.

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

Andrews and Boggs, JJ., concur.

       300 Ga. App. 816 (686 SE2d 425) (2009).

       Id. at 816.

       See id. at 818-819 (1).

       See id. at 820-821 (2).

       See id. at 821-823 (3).

       See id. at 823-825 (4).

       The trial court awarded Blake $207,279 in attorney fees and $32,825 in expenses.

       The trial court also reduced Blake’s incentive compensation by $10,000 based on an advance on profit sharing paid to him by Brock Built; the reduction is not at issue on appeal. The total amount of the judgment to Blake was “$256,589 (inclusive of interest) plus $240,104 in attorney fees, costs, and expenses.”

       (Punctuation omitted.) Bourke v. Webb, 277 Ga. App. 749 (627 SE2d 454) (2006).

        Brock Built, 300 Ga. App. at 819 (1).

       Whether Blake forfeited half of his severance was not at issue during the previous appeal.

       See id. at 817-818.

       (Emphasis in original.)

       See, e.g., Yargus v. Smith, 254 Ga. App. 338, 341-342 (562 SE2d 371) (2002) (affirming the trial court’s contract interpretation).

       See, e.g., Benchmark Builders v. Schultz, 3X5 Ga. App. 64 (726 SE2d 556) (20X2).

       (Punctuation omitted.) City of Atlanta v. Hofrichter/Stiakakis, 291 Ga. App. 883, 889 (3) (663 SE2d 379) (2008), quoting Home Depot U.S.A. v. Tvrdeich, 268 Ga. App. 579, 584 (2) (602 SE2d 297) (2004).

        Tvrdeich, 268 Ga. App. at 585 (2). See also Hofrichter/Stiakakis, 291 Ga. App. at 890 (3).

       Specifically, the trial court awarded Blake 40 percent of the $518,198 he sought in total damages, plus his costs, rather than 40 percent of the $256,589 awarded to Blake.

       (Emphasis in original.)

       (Citation omitted.) Williamson v. Strickland & Smith, Inc., 296 Ga. App. 1, 5 (3) (673 SE2d 858) (2009). See also Bourke, 277 Ga. App. at 751 (1).

       (Punctuation omitted.) McReynolds v. Krebs, 307 Ga. App. 330, 334 (2) (705 SE2d 214) (2010).

        See Magill v. Edd Kirby Chevrolet, Inc., 277 Ga. App. 619, 620 (1) (627 SE2d 207) (2006).


author: Andrews, Judge.

text:
    A12A0295.
    ALTACARE CORPORATION v. DECKER, HALLMAN, BARBER & BRIGGS, PC.
    (730 SE2d 12)
   Andrews, Judge.

The law firm of Decker, Hallman, Barber & Briggs, P. C. (DHB&B) sued Altacare Corporation for unpaid legal fees, and the trial court granted DHB&B’s motion to strike Altacare’s answer for failure to comply with the pleading requirements set forth in OCGA§ 9-10-112 applicable to an answer to suit on an open account. The trial court then entered a default judgmentinfavor ofDHB&B. Altacare appeals, and we reverse.

Under OCGA§ 9-10-112,

[w]henever an action is brought on an open account and the same is verified by the plaintiff as provided by law, the answer either shall deny that the defendant is indebted in any sum or shall specify the amount in which the defendant admits he may by indebted and it shall be verified as required by law.

The trial court’s order found that DHB&B’s complaint set forth an action on an open account, and that, contrary to OCGA § 9-10-112, Altacare’s answer failed to either deny it was indebted to DHB&B in any sum or specify the amount in which it admits it may be indebted. In the same order, the trial court found that Altacare was in default and granted judgment in favor of DHB&B for liquidated damages in the amount of $146,962.47 plus pre-judgment interest, post-judgment interest, and costs.

An open account is defined as an account “which has not been finally settled or closed, but is still running or open to future adjustment or liquidation.... Open account, in legal as well as in ordinary language, means an indebtedness subject to future adjustment, and which may be reduced or modified by proof.” James C. Welch Constr. Co. v. Quantum Group, 188 Ga. App. 740 (374 SE2d 232) (1988).

A suit on open account is available as a simplified procedure to the provider of goods and services where the price of such goods or services has been agreed upon and “where it appears that the plaintiff has fully performed [its] part of the agreement and nothing remains to be done except for the other party to make payment.” Haas v. Jaffe, 45 Ga. App. 11, 12 (2) (163 SE 226) (1931); accord Lipsey Motors v. Karp Motors, 194 Ga. App. 15, 19 (3) (389 SE2d 537) (1989). However, when there is a dispute that goes to either assent to the services, terms of the contract, what work was performed, the quality of the performance, or cost, then suit on account is not the proper procedure for suit, because there is a factual issue other than nonpayment on the account. See Lawson v. OKelley, 81 Ga. App. 883, 885 (1) (60 SE2d 380) (1950); Craig v. Augusta Roofing &c., 78 Ga. App. 514, 515 (1) (51 SE2d 565) (1949).

Five Star Steel Constr., Inc. v. Klockner Namasco Corp., 240 Ga. App. 736, 738-739 (524 SE2d 783) (1999). Where a verified complaint is brought on an open account, and the defendant’s answer does not comply with the pleading requirements of OCGA § 9-10-112, the answer is properly struck. Harper v. Carroll Tire Co., 237 Ga. App. 767 (516 SE2d 811) (1999); Baylis v. Daryani, 294 Ga. App. 729, 730 (669 SE2d 674) (2008); Riverdale Beverage Corp. v. Brick & Whalen, 162 Ga. App. 516 (292 SE2d 98) (1982).

Decided June 14, 2012

Reconsideration denied July ll, 2012.

Ira K. McKee, for appellant.

Hallman & Wingate, F. Edwin Hallman, Jr., Richard P. Decker, for appellee.

DHB&B’s complaint alleges that Altacare “engaged the services of [DHB&B] for general corporate matters, including, but not limited to, the defense of multiple claims against Altacare and its affiliates over the years” and that “[DHB&B] has provided legal representation for [Altacare] regarding collection and other legal issues relating to [Altacare’s] business of managing long-term health care facilities.” The complaint states that the attached and incorporated ledger lists 22 different legal matters “which details the complete billing and payment history of each matter, along with copies of remaining unpaid invoices for each respective matter.” In three counts, the complaint then sets forth claims for “breach of contract” for failure to pay the invoices; “quantum meruit” for the value of legal services rendered; and “attorneys’ fees and expenses of litigation” pursuant to OCGA § 13-6-11 for bad faith failure to pay.

The complaint does not allege that the suit was on an open account, nor do any of the three counts in the complaint assert claims on the basis of an open account. Moreover, Altacare’s answer asserted the defense that affiliates not named as defendants for whom legal services were performed, and not Altacare, owed unpaid invoices for those services. Accordingly, we find that this was not a proper case to require that Altacare’s answer comply with the technical pleading requirements of OCGA § 9-10-112. Official Championship Speedway v. Jupiter Broadcasting of Ga., 116 Ga. App. 269, 270 (157 SE2d 53) (1967); Five Star Steel, 240 Ga. App. at 738-739. The trial court erred in striking Altacare’s answer and entering a default judgment in favor of DHB&B.

Judgment reversed.

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


author: Miller, Judge.

text:
    A12A0753.
    BEARDEN v. THE STATE.
    (728 SE2d 874)
   Miller, Judge.

Following a jury trial, Rodney Allen Bearden was convicted of two counts of theft by talcing (OCGA § 16-8-2). Beardenfiled a motion for new trial, as amended, which the trial court denied. On appeal, Bearden contends that the State failed to prove that he intended to unlawfully convert funds and also failed to establish venue. Bearden also contends that he received ineffective assistance of counsel. We discern no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.

(Citation and punctuation omitted.) Fogerty v. State, 304 Ga. App. 546 (1) (696 SE2d 496) (2010).

So viewed, the evidence shows that Bearden, who lived in Smyrna, Georgia, advertised for the construction of modular homes and provided a toll-free number that was linked to his Smyrna residence. Upon seeing Bearden’s advertisement, two families residing in Florida contacted Bearden to inquire about the construction of modular homes for them. After several discussions, the families entered into agreements to purchase modular homes through Bearden. With Bearden’s assistance, the families obtained financing through Yorktown Funding. The two families finalized their contracts with Bearden and closed on their loans in September 2005.

Bearden subsequently contacted Precision Homes of Ocilla, Georgia, about purchasing a modular home for one of the families (the “Precision-project family”). Precision Homes notified Bearden that he would first need to pay $500 to cover the cost of engineering prints. A Precision Homes representative explained that before paying a deposit, the developer needed to lay the foundation of the home, which required engineering prints and a building permit. Bearden disputed having to pay a deposit since he claimed to have an “exclusive” agreement with Precision Homes, which would have allowed him to buy homes at a discount. However, Precision Homes had previously cancelled the agreement because Bearden had failed to comply with the requirements to maintain an exclusive agreement. Precision Homes informed Bearden that he would have to pay full price for the modular homes, and that he would have to give a 25% deposit before the company would commence construction of any modular home.

Bearden failed to perform under the contracts. Since the Precision-project family was having trouble getting Bearden to complete any work, the family contacted Yorktown Funding about their problems with Bearden. Notwithstanding Bearden’s failure to complete any work to construct the modular homes for the Precision-project family, he drew $32,715 against their Yorktown Funding loan. Bearden had also asked for and received $22,029 against the other family’s Yorktown Funding loan. Yorktown Funding sent the checks to Bearden’s post office box located in Cobb County.

Shortly after receiving the Yorktown Funding checks, Bearden informed the families and Yorktown Funding via written correspondence that he was assigning construction of their modular homes to Precision Homes. Representatives from Precision Homes, however, stated that the company never agreed to accept an assignment to construct the families’ modular homes. Precision Homes never received any money from Bearden towards the purchase of engineering prints or as a deposit to start construction of any modular homes.

After receiving Bearden’s notice of assignment, the Precision-project family attempted to contact him, but Bearden did not return the family’s calls. The family subsequently contacted the United States Secret Service, which initiated an investigation. In its investigation, the Secret Service traced the money that Yorktown Funding had disbursed to Bearden, which had been deposited into two separate bank accounts maintained by Bearden. Since Bearden had not done any work to start construction of the modular homes, the Secret Service initiated a civil seizure to recover the funds. The Secret Service recovered some, but not all, of the money, disbursed to Bearden, and it returned the seized money to Yorktown Funding to be applied against the families’ respective loans. Bearden was subsequently arrested and charged with two counts of theft by taking.

1. Bearden contends that the State failed to prove that he intended to convert lawfully acquired funds for his own use. We disagree.

A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.

OCGA § 16-8-2.

Under the statute, the phrase “regardless of the manner in which the property is taken or appropriated” is a catch-all phrase rendering our theft by taking statute broad enough to encompass theft by conversion, ... or any other of the myriad and even yet-to-be-concocted schemes for depriving people of their property. In a case such as this, when the alleged taking occurs when a defendant fails to perform under a contract with the victim, the “real issue” is whether the defendant accepted or retained the victim’s money with no intention to satisfy his obligations under the contract.

(Citations and punctuation omitted.) Smith v. State, 265 Ga. App. 57, 59 (1) (592 SE2d 871) (2004). Moreover,

[i]ntent may be found by the jury upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is being prosecuted. Whether a defendant has the requisite intent to commit a crime is a question for the jury.

(Footnote omitted.) Adams v. State, 284 Ga. App. 534, 535 (1) (644 SE2d 426) (2007).

Here, shortly after Bearden received checks for the purpose of starting construction of the victims’ modular homes, Bearden abandoned the respective proj ects without accomplishing any task towards completion of the modular homes. Significantly, despite receiving almost $55,000 for both projects, Bearden failed to pay the requisite deposits to obtain the engineering plans for the modular homes. While he contends that he was not required to pay this fee since he was an “exclusive” provider for Precision Homes, the company denied the existence of an “exclusive agreement” with Bearden. Moreover, Precision Homes was not a party to the contracts and denied accepting any assignment from Bearden to complete the modular home proj ects for the families. After informing the families that he “assigned” completion of the projects to Precision Homes, Bearden refused to return the families’ telephone calls. The evidence established that Bearden had drawn $32,715 and $22,029 from the families’ loans, but failed to construct the modular homes, and further failed to return any of their funds. Under these circumstances, the jury was authorized to infer that Bearden acted with fraudulent intent and to find him guilty of theft by taking. See Smith, supra, 265 Ga. App. at 59 (1) (evidence was sufficient to support conviction for theft by taking where defendant abandoned project and failed to refund unearned portion of down payment to victims); see also Cox v. State, 275 Ga. App. 895, 895-896 (622 SE2d 11) (2005) (evidence was sufficient to authorize jury to infer that defendant fraudulently converted money for his own use where he received the money, he failed to use it for the specified purpose, and failed to return the victim’s telephone calls).

2. Bearden also contends that the State failed to prove venue in Cobb County. We disagree.

“Generally, a criminal action must be tried in the county in which the crime was committed, and the State may establish venue by whatever means of proof are available to it, including direct and circumstantial evidence.” (Citation, punctuation and footnote omitted.) Scott v. State, 302 Ga. App. 111, 112 (1) (a) (690 SE2d 242) (2010).

In the trial of a theft by taking case, “the crime shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft,” OCGA § 16-8-11, and the State bears the burden of proving that the defendant exercised control over the property taken in the county where the case was prosecuted.

(Citation and punctuation omitted.) Williams v. State, 297 Ga. App. 150, 151 (2) (676 SE2d 805) (2009). Consequently, in the prosecution of theft by taking, venue is proper in the county where the checks were taken or deposited. Gautreaux v. State, 314 Ga. App. 103,106 (1) (722 SE2d 915) (2012); see also Naylor v. State, 257 Ga. App. 899, 900 (572 SE2d 410) (2002) (“[I]n theft by conversion cases, where the allegedly converted property is money,... the [S]tate can proceed in the county where the accused received the money.”) (punctuation omitted).

Here, the Secret Service agent testified that during her investigation, she discovered that the Yorktown Funding checks disbursed from the families’ loans were sent to Bearden at his mailbox located in Cobb County. Based on this evidence, venue was sufficiently established. See Queen v. State, 210 Ga. App. 588, 589 (1) (436 SE2d 714) (1993) (venue established where defendant directed victims to send checks to his agent and agent physically received checks in relevant county); Hawkins v. State, 167 Ga. App. 143, 147 (5) (305 SE2d 797) (1983) (in prosecution for theft by taking, venue was proper in county in which subject insurance premium checks were obtained, notwithstanding fact that checks were deposited in a different county); OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”).

3. Bearden further contends that his trial counsel provided ineffective assistance of counsel.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [See] Strickland v. Washington, 466 U. S. 668, 687 [(104 SC 2052, 80 LE2d 674)] (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citations and punctuation omitted.) Bridges v. State, 286 Ga. 535, 537 (1) (690 SE2d 136) (2010). Applying these standards, we turn to review Bearden’s claims.

(a) Bearden first contends that his trial counsel was ineffective for failing to call certain “key” witnesses to his defense.

Here, trial counsel did not testify at the motion for new trial hearing. Consequently, “in the absence of testimony to the contrary, counsel’s actions are presumed strategic.” (Citations and punctuation omitted.) Watson v. State, 299 Ga. App. 702, 704 (1) (683 SE2d 665) (2009); see also Ponder v. State, 201 Ga. App. 388, 389 (1) (411 SE2d 119) (1991) (no showing of deficient performance when trial counsel was not asked if she had reasons for not calling witnesses). Moreover, assuming, arguendo, that counsel was deficient for failing to call the subject witnesses, Bearden did not call the witnesses to testify at the hearing on his motion for new trial or make a proffer as to their testimony. Absent a proffer of the subject witnesses’ testimony, Bearden cannot establish that his defense was prejudiced by trial counsel’s failure to call these witnesses at trial. See, e.g., Watson, supra, 299 Ga. App. at 705 (1); Wheat v. State, 282 Ga. App. 655, 657 (1) (b) (639 SE2d 578) (2006).

(b) Bearden also contends that trial counsel was deficient by failing to present additional evidence showing Precision Homes breached its contract with Bearden to provide modular homes under an “exclusive” agreement — an agreement which Bearden argues prevented him from fulfilling his contractual obligations to the families. However, “[i]n evaluating an attorney’s performance, there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and where trial counsel does not testify at the motion for a new trial hearing, it is extremely difficult to overcome this presumption.” (Citation and punctuation omitted.) Watson, supra, 299 Ga. App. at 704 (1).

Here, trial counsel did not testify at the motion for new trial hearing. As such, Bearden failed to show that trial counsel’s actions were not strategic. See Watson, supra, 299 Ga. App. at 704 (1). Moreover, even if trial counsel performed deficiently by failing to introduce additional exhibits of Bearden’s purported “exclusive” agreement with Precision Homes, we conclude that Bearden cannot establish that he was prejudiced by counsel’s performance. Significantly, some of the evidence Bearden asserts should have been introduced was, in fact, used at trial, and other trial evidence reflected Bearden’s assertion of an “exclusive” right to sell modular homes made by Precision Homes. As a result, “[tjhere is no ineffective assistance where, as here, trial counsel simply failed to introduce evidence cumulative of other evidence admitted at trial.” (Citations and punctuation omitted.) Carmichael v. State, 305 Ga. App. 651, 654 (3) (700 SE2d 650) (2010).

(c) Bearden next contends that trial counsel was ineffective for failing to object on hearsay grounds to portions of the Secret Service agent’s testimony regarding details of Bearden’s bank accounts and the delivery of Yorktown Funding checks to Bearden’s post-office box in Smyrna, Georgia. Again, Bearden’s contention is foreclosed by his failure to call trial counsel to testify at the hearing on his motion for new trial. See Mitchell v. State, 290 Ga. 490, 492 (4) (a) (722 SE2d 705) (2012) (the defendant failed to show that counsel was deficient for failing to object to certain hearsay where there was no testimony from trial counsel regarding the decisions he made at trial). Moreover, contrary to Bearden’s arguments otherwise, the Secret Service agent’s testimony about what she learned during her investigation was not hearsay since she did not repeat the testimony of an out-of-court declarant. See Smith v. State, 274 Ga. App. 852, 854 (2) (619 SE2d 358) (2005). “Failing to make a meritless objection to admissible evidence does not constitute deficient performance, and thus, appellant’s ineffective assistance of counsel claim cannot be sustained.” (Citation and punctuation omitted.) Hammock v. State, 311 Ga. App. 344, 346 (2) (a) (715 SE2d 709) (2011).

Decided June 15, 2012

Reconsideration denied July 11, 2012

Nuckolls & Nuckolls, John A. Nuckolls, Jr., for appellant.

Patrick H. Head, District Attorney, Anna G. Cross, Assistant District Attorney, for appellee.

(d) Finally, in light of our holdings in Divisions 1 and 2 above, that the evidence was sufficient to sustain the convictions and to establish venue, there is no merit to Bearden’s claim that his counsel was ineffective for failing to move for a directed verdict of acquittal on these issues. Cf.Ballard v. State, 268 Ga. App. 55, 60 (5) (a) (601 SE2d 434) (2004) (where evidence was sufficient to sustain convictions, counsel was not deficient for failing to move for directed verdict).

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.

       Bearden filed a notice of appeal following his conviction and subsequently filed his motion for new trial. After the notice of appeal was filed, Bearden obtained new counsel and moved to remand the case for consideration of his claims of ineffective assistance of trial counsel. This Court granted Bearden’s motion and remanded for further proceedings. Following a hearing, the trial court denied Bearden’s amended motion for new trial.


author: BARNES, Presiding Judge.

text:
    A12A0200.
    AMUSEMENT SALES, INC. v. STATE OF GEORGIA.
    (730 SE2d 430)
   BARNES, Presiding Judge.

In this civil in rem forfeiture action arising out of allegations of illegal commercial gambling at a convenience store, the jury found in favor of the State of Georgia, resulting in the forfeiture of eight electronic game machines and a portion of the money found in those machines to the State. The trial court entered judgment on the jury verdict, and Amusement Sales, Inc., the owner of the machines, now appeals. In several enumerations of error, Amusement Sales contends that it was entitled to judgment as a matter of law because the State failed to demonstrate that illegal commercial gambling had occurred, and because it had no actual or constructive knowledge of the alleged gambling. Amusement Sales further contends that the trial court erred in denying its motion to disqualify the special assistant district attorneys (“SADAs”) appointed to prosecute the action on a contingency fee basis. Lastly, Amusement Sales contends that the trial court erred in its charge to the jury on the “innocent party” defense.

As discussed below, we reject Amusement Sales’s contention that it was entitled to judgment as a matter of law on the State’s forfeiture claim. However, we conclude that contingency fee arrangements for SADAs appointed to represent the State in civil forfeiture actions violate Georgia public policy, given that those types of arrangements cause the SADAs to have a personal financial stake in the outcome of the proceedings. Consequently, we agree with Amusement Sales that its motion to disqualify should have been granted, and, as a result, we reverse the judgment and remand the case for a new trial. In the interest of judicial economy, we also address the trial court’s jury charge on the “innocent party” defense and conclude that a different charge should be given on retrial.

The pertinent factual and procedural history is as follows. Pursuant to Georgia’s Racketeer Influenced and Corrupt Organizations Act (the “RICO Act”), OCGA § 16-14-1 et seq., the State of Georgia filed a complaint in the Superior Court of Emanuel County, alleging that a local convenience store known as KT’s Place had made illegal cash payouts to customers who played electronic game machines located on the premises. The State alleged that the machines were gambling devices, that the store was being operated as a gambling place, and that the felony crime of commercial gambling had repeatedly occurred on the premises in violation of OCGA § 16-12-22. The State further alleged that the criminal acts of commercial gambling constituted a pattern of racketeering activity under OCGA § 16-14-3 (8) (A) and (9) (A) (xvii). Based upon these allegations in the complaint, the State sought in rem forfeiture of eight electronic game machines and money seized from those machines by law enforcement officials on the ground that the property was “used or intended for use in the course of, derived from, or realized through the foregoing pattern of racketeering activity.” See OCGA § 16-14-7 (a).

The complaint was filed on behalf of the State by Andrew J. Ekonomou and Michael G. Lambros, whom the District Attorney for the Middle Judicial Circuit of Georgia had appointed as SADAs to pursue the State’s forfeiture claims against a number of convenience stores. The SADAs were in private practice and entered into a contingency fee arrangement with the State to prosecute and recover a percentage of any forfeited proceeds.

Amusement Sales answered the complaint and made a claim for the property seized from the convenience store. Amusement Sales leased the electronic game machines to the store and claimed ownership of the machines and the money seized from them. According to Amusement Sales, the machines were bona fide coin-operated amusement machines under OCGA §§ 16-12-35 (d) and 48-17-1 (2) rather than gambling devices, and it was an innocent party that had no actual or constructive knowledge of illegal cash payouts made to store customers. Consequently, Amusement Sales asserted that the machines and money were not subject to forfeiture and should be returned to it by the State.

Amusement Sales also filed a motion to disqualify the SADAs from prosecuting the case, contending that their contingency fee arrangement created an impermissible conflict of interest and that Emanuel County had never properly approved of their appointment or compensation. The trial court denied the motion, and the case proceeded to a jury trial, with SADA Lambros serving as lead attorney for the State.

Piyush Patel, the owner and operator of the convenience store, testified at trial as a State’s witness. He conceded that he knew that customers playing the eight electronic game machines inside his store were supposed to be rewarded exclusively with noncash gift merchandise when they won a game. Patel admitted, however, that he instead rewarded winning customers with illegal cash payouts on a daily basis for at least two years prior to the seizure of the machines by law enforcement. According to Patel, the highest single cash payout he made to a customer was $500. He further testified that he purchased gift merchandise from Amusement Sales for use in his store only one time during the years that the machines were located there.

Robert Jue, an employee of Amusement Sales, described for the jury how the electronic game machines inside the convenience store were played. Jue testified that the machines would show combinations of “fruit or numbers” on wheels spinning on the screen, and a player would insert cash into the machine to play and punch a button to stop the wheels. The player would win or lose based on the combination of symbols appearing on the screen once the wheels stopped. According to Jue, a player would just punch the button on the machine, “and whatever comes up[,] comes up.”

Jue was in a position to know how the machines were played because he traveled to the convenience store every other week to collect 30 percent of the net profits from the machines, the amount owed to Amusement Sales under its arrangement with the store. To determine the amount of net profits owed to Amusement Sales, Jue would print out an “audit ticket” from each of the machines and “add up the net profit” shown on the tickets. Although Jue claimed that he was unaware that Patel allowed customers to redeem their winnings for cash rather than gift merchandise, he conceded that he ignored all information on the audit tickets pertaining to the issue of winnings. Jue admitted that he did not “bother” with reviewing that type of information because his “job [was] just to collect 30 percent for the company on net profit.”

The owner of Amusement Sales, Rudolph Bairas, also testified. He testified that the eight electronic game machines in the convenience store netted a profit of $331,658 in cash over a thirteen-month period. The net profit was divided between Amusement Sales, which received 30 percent, and the store, which received 70 percent. Bairas denied having any knowledge that cash payouts were being made to customers who played the machines at the store. But, he admitted that audit tickets pertaining to the machines had been thrown away because he did not “have any use for [them],” and that Amusement Sales had routinely “zeroed out” the machines and had changed the internal operating boards on them “quite often,” resulting in the loss of the gaming history otherwise stored on the machines.

At the close of the State’s case-in-chief and again at the close of trial, Amusement Sales moved for a directed verdict, and the trial court denied the motions. After hearing all of the testimony, the jury returned a verdict in favor of the State. The trial court thereafter entered judgment on the verdict reflecting that the machines and money contained in them had been forfeited to the State. Amusement Sales now appeals.

1. Amusement Sales contends that it was entitled to judgment as a matter of law because the State failed to prove that the crime of commercial gambling occurred at the convenience store, and thus failed to prove the predicate acts necessary for establishing a RICO violation. Amusement Sales further contends that it was an innocent party as a matter of law because it was without actual or constructive knowledge of any commercial gambling occurring at the store. Accordingly, Amusement Sales contends that the trial court erred in denying its motions for directed verdict.

Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s motion for directed verdict . . . will not be disturbed.

(Citations and punctuation omitted.) Tecumseh Products Co. v. Rigdon, 250 Ga. App. 739 (552 SE2d 910) (2001).

Under Georgia’s RICO Act, “[a]ll property of every kind used or intended for use in the course of, derived from, or realized through a pattern of racketeering activity is subject to forfeiture to the [S]tate.” OCGA § 16-14-7 (a). A “pattern of racketeering activity” means engaging in at least two predicate acts of racketeering activity. See OCGA § 16-14-3 (8) (A); Aon Risk Svcs. &c. v. Commercial &c. Co., 270 Ga. App. 510, 516 (5) (b) (607 SE2d 157) (2004).

Criminal acts of commercial gambling can serve as the predicate acts forming a pattern of racketeering activity. See OCGA § 16-14-3 (9) (A) (xvii). “A person commits the offense of commercial gambling when he intentionally... [o]perates or participates in the earnings of a gambling place.” (Emphasis supplied.) OCGA § 16-12-22 (a) (1). “Gambling place” is defined as “any real estate, building, room, tent, vehicle, boat, or other property whatsoever, one of the principal uses of which is ... the playing of gambling devices.” (Emphasis supplied.) OCGA § 16-12-20 (3).

(a) Amusement Sales maintains that the State failed to demonstrate that the eight machines in the convenience store were “gambling devices,” and, therefore, was unable to establish any predicate acts of commercial gambling. According to Amusement Sales, the uncontroverted evidence showed that the machines instead were “coin operated game[s] or device [s] designed and manufactured only for bona fide amusement purposes.” OCGA § 16-12-35 (d) (1). See also OCGA § 48-17-1 (2).

The definition of “gambling device” includes:

(A) Any contrivance which for a consideration affords the player an opportunity to obtain money or other thing of value, the award of which is determined by chance even though accompanied by some skill, whether or not the prize is automatically paid by contrivance;
(C) Any matchup or lineup game machine or device, operated for any consideration, in which two or more numerals, symbols, letters, or icons align in a winning combination on one or more lines vertically, horizontally, diagonally, or otherwise, without assistance by the player. Use of skill stops shall not be considered assistance by the player ....

OCGA§ 16-12-20 (2) (A), (C).

As previously discussed, Robert Jue, Amusement Sales’s employee with personal knowledge regarding the eight machines in the convenience store, testified that a player of the machines inserted cash into the machine to play, punched a button to stop the wheels from spinning, and whatever combination of symbols happened to appear on the game once the wheels stopped spinning would determine whether the player would win or lose. In other words, a player would simply punch the button on the machine, “and whatever comes up[,] comes up.” Jue’s testimony was sufficient to authorize the jury to find that the eight machines fell within the definition of “gambling devices.” See OCGA § 16-12-20 (2) (A), (C). See also OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”). Although Rudolph Bairas, owner of Amusement Sales, provided a different description of how the machines were played, it was for the jury, not this Court, to assess witness credibility and resolve conflicts in the evidence. See OCGA § 24-9-80; Tecumseh Products Co., 250 Ga. App. at 739.

We likewise reject Amusement Sales’s argument that the uncontroverted evidence showed that the eight machines were bona fide coin-operated amusement machines rather than gambling devices. To qualify as a bona fide coin-operated amusement machine, the machine must “involve [ ] some skill in its operation.” OCGA § 16-12-35 (d) (1). See also OCGA § 48-17-1 (2) (among other requirements, a “bona fide coin[-]operated amusement machine” is one “whose operation depends in whole or in part upon the skill of the player”). Based upon Jue’s description of the eight machines and how they were played, the jury was entitled to find that the machines did not involve “some skill” in how they were operated. See OCGA § 16-12-35 (a) (defining “some skill”); Patel v. State of Ga., 289 Ga. 479, 485 (3) (713 SE2d 381) (2011) (where evidence showed that “a player simply pressed a button to play the[ ] machines,” the machines were not bona fide coin-operated amusement machines because they did not involve “some skill” in their operation).

Nevertheless, Amusement Sales maintains that the eight machines were legal per se because they were “Silver Bar” machines, and the Supreme Court of Georgia determined that machines that went by that same name were bona fide coin-operated amusement machines rather than gaming devices in Ultra Telecom v. State of Ga., 288 Ga. 65, n. 1 (701 SE2d 144) (2010). Amusement Sales, however, makes no effort to show that res judicata or collateral estoppel principles apply in this context. Furthermore, there is nothing in the record reflecting that Amusement Sales programmed the machines at issue here with the same specific game as the machines in Ultra Telecom. Additionally, the Supreme Court in Ultra Telecom affirmed, under the clearly erroneous standard, the trial court’s factual finding that the machines at issue involved “some skill,” id. at 71 (3) (b), and, therefore, the appeal was in an entirely different posture than the instant one, where the jury found that the machines did not involve “some skill.”

For these reasons, the jury was entitled to find that the eight machines at the convenience store were gambling devices rather than bona fide coin-operated amusement machines. The trial court thus did not err in denying Amusement Sales’s motion for a directed verdict on this ground.

(b) Amusement Sales also argues that it was entitled to a directed verdict because there was no evidence that the playing of gambling devices was “one of the principal uses” of the convenience store. Hence, Amusement Sales claims that the store did not meet the definition of a “gambling place,” one of the required elements for proving the crime of commercial gambling as alleged in the present litigation. See OCGA§§ 16-12-20 (3); 16-12-22 (a) (1).

During the trial, Bairas testified that the eight electronic game machines in the convenience store generated a net profit of $331,658 in cash in a thirteen-month period, which translated into a net profit of approximately $6,378 in cash per week. At the time of the seizure of the machines by law enforcement, the convenience store had approximately $38,000 in cash on hand, which represented total cash sales from all of the store’s operations for the previous week, reflecting that cash from gaming activity made up a significant amount of the cash sales of the business in a given week. Moreover, Patel, the owner of the store, testified that he made cash payouts to customers playing the machines every day for two years. Based upon this combined testimony, the jury was authorized to find that the playing of gambling devices was one of the principal uses of the convenience store, and thus that the store met the definition of a “gambling place.” The trial court therefore committed no error in denying Amusement Sales’s motion for a directed verdict on this issue.

(c) Amusement Sales further maintains that it was an innocent party without actual or constructive knowledge that cash payouts were being made to customers at the convenience store. Consequently, Amusement Sales contends that it did not forfeit its interest in the machines and the money seized from them, and that the trial court thus should have granted a directed verdict in its favor.

In the context of an in rem RICO forfeiture action, where the property itself is the named defendant, the focus is on whether the property “was used or intended for use in the course of, derived from, or realized through a pattern of racketeering activity,1’’OCGA § 16-14-7 (a), and the State can pursue such an action “without regard to the guilt or innocence of the property owner.” Cisco v. State of Ga., 285 Ga. 656, 661 (1) (680 SE2d 831) (2009). Yet, the RICO Act provides that “[t]he interest of an innocent party in the property shall not be subject to forfeiture,” and it defines such a party as “one who did not have actual or constructive knowledge that the property was subject to forfeiture.” OCGA § 16-14-7 (j). While the Act does not define “constructive knowledge,” that term is commonly understood to refer to “[kjnowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to [that] person.” Black’s Law Dictionary, 9th Edition (2009).

OCGA § 16-14-7 (a) and (j), when construed together, create a burden-shifting framework for in rem RICO forfeiture actions. Specifically, once the State shows, by a preponderance of the evidence, that the property “was used or intended for use in the course of, derived from, or realized through a pattern of racketeering activity” under OCGA § 16-14-7 (a), the burden then shifts to the property owner to show that he “did not have actual or constructive knowledge that the property was subject to forfeiture” under OCGA § 16-14-7 (j). Cf. Walker v. State of Ga., 281 Ga. App. 526, 529 (1) (b) (636 SE2d 705) (2006). See Cisco, 285 Ga. at 661 (1) (citing Walker with approval when discussing in rem RICO forfeiture proceedings).

Applying this framework to this case, we conclude that even if Amusement Sales had no actual knowledge of the commercial gambling occurring at the convenience store, the jury was entitled to reject Amusement Sales’s contention that it had no constructive knowledge of that activity. There was evidence that despite the fact that the eight game machines in the convenience store generated a net profit of $331,658 in cash in a thirteen-month period, the store purchased gift merchandise from Amusement Sales for use only one time during the years that the machines were located there. Given the amount of profit generated from the machines without any concomitant purchase of gift merchandise, the jury was authorized to find that Amusement Sales should have known that the store was rewarding winning customers with cash rather than gift merchandise.

The jury’s finding of constructive knowledge was further supported by Jue’s testimony about his failure to review the audit tickets from the machines for information about winnings, as well as Bai-ras’s testimony that the audit tickets were thrown away on a regular basis, that the machines were routinely “zeroed out,” and that the operating boards on the machines were often replaced, preventing analysis of the gaming history otherwise stored on the machines. Given this evidence, the jury was entitled to reject the “innocent part/’ defense raised by Amusement Sales, and a directed verdict on this issue would not have been appropriate.

2. Apart from its claims regarding the denial of its motions for directed verdict, Amusement Sales argues that the trial court erred in denying its motion to disqualify the SADAs from prosecuting the case. “There are two generally recognized grounds for disqualification of a prosecuting attorney. The first such ground is based on a conflict of interest, and the second ground has been described as ‘forensic misconduct.’ ” (Citation omitted.) Williams v. State, 258 Ga. 305, 314 (2) (B) (369 SE2d 232) (1988). In reviewing a trial court’s ruling on a motion to disqualify a prosecutor, we apply an abuse of discretion standard. Head v. State, 253 Ga. App. 757, 758 (2) (560 SE2d 536) (2002).

“A conflict of interest . . . has been held to arise where the prosecutor has acquired a personal interest or stake in the defendant’s conviction.” Williams, 258 Ga. at 314 (2) (B). If the assigned prosecutor has acquired a personal interest or stake in the conviction, the trial court abuses its discretion in denying a motion to disqualify him, and the defendant is entitled to a new trial, even without a showing of prejudice. See Whitworth v. State, 275 Ga. App. 790, 796 (1) (d) (622 SE2d 21) (2005) (physical precedent only). See also Young v. United States, 481 U. S. 787, 809-814 (III) (B) (107 SC 2124, 95 LE2d 740) (1987) (plurality opinion as to Division (III) (B)).

It is true that the present case involves forfeiture of property rather than a criminal prosecution. Nonetheless, “[forfeiture is a quasi-criminal proceeding that permanently extinguishes a property owner’s rights to certain property,” State of Ga. v. Williams, 278 Ga. 447, 449 (603 SE2d 278) (2004), and “forfeiture of property is disfavored.” Gen. Motors Acceptance Corp. v. State of Ga., 279 Ga. 328, 331 (613 SE2d 641) (2005). Hence, we conclude that, as in a criminal prosecution, no showing of prejudice should be required if the prosecutor assigned to a forfeiture proceeding has acquired a personal interest or stake in the outcome, and the trial court erroneously denies a motion for disqualification. Cf. Pitts v. State of Ga., 207 Ga. App. 606, 607 (1) (428 SE2d 650) (1993) (Fourth Amendment exclusionary rule applicable in criminal cases also should be applied in forfeiture proceedings because of their quasi-criminal nature). That is the situation here, given that the SAD As who prosecuted this case entered into a contingency fee arrangement with the State to prosecute and recover a percentage of any forfeited proceeds.

In the recent case of Greater Ga. Amusements v. State of Ga., 317 Ga. App._(2) (728 SE2d 744) (2012) (physical precedent only), this Court held that contingency fee arrangements for SAD As appointed to represent the State in civil forfeiture actions violate Georgia public policy because they cause an appointed prosecuting attorney to have a personal financial stake in the outcome of the proceedings. As a result, this Court held that the trial court erred in failing to disqualify the SADA appointed under such an arrangement from prosecuting the civil forfeiture case. See id. Although Greater Ga. Amusements is not binding precedent, see Court of Appeals Rule 33 (a), we nevertheless find its reasoning persuasive. See Pechin v. Lowder, 290 Ga. App. 203, 205 (659 SE2d 430) (2008) (“[P]hysical precedent may be cited as persuasive authority, just as foreign case law or learned treatises may be persuasive”) (citation and punctuation omitted).

It follows that the trial court abused its discretion in denying Amusement Sales’s motion for disqualification. And because disqualification was warranted in light of the SAD As having a personal financial stake in the outcome, Amusement Sales need not show prejudice arising from the denial of its motion. See Young, 481 U. S. at 809-814 (III) (B); Whitworth, 275 Ga. App. at 796 (1) (d). We therefore reverse the trial court’s judgment entered on the verdict and remand for a new trial. See Davenport v. State, 157 Ga. App. 704, 706 (1) (278 SE2d 440) (1981).

3. Amusement Sales claims that the trial court erred in its charge to the jury on the “innocent party” defense. In the first sentence of its jury charge addressing that defense, the trial court instructed that “[a]ny person claiming an innocent interest in any property from which the State has presented a case for forfeiture must prove he had neither actual nor constructive knowledge that the property was subject to forfeiture.” However, in the second sentence of its charge, the trial court used language derived from the drug forfeiture statute, OCGA § 16-13-49 (e) (1) (A), and instructed: “An owner of property subject to forfeiture is innocent where that party is not legally accountable for the conduct giving rise for its forfeiture, did not consent to it, and did not know and could not reasonably have known of the conduct, or that it was likely to occur.” Amusement Sales contends that the trial court erred by including in its charge the language from the drug forfeiture statute defining an innocent party as one “not legally accountable for the conduct giving rise for its forfeiture” and as one who “did not consent to it,” because that language went beyond the RICO Act requirement that the innocent party be one “who did not have actual or constructive knowledge that the property was subject to forfeiture.” OCGA § 16-14-7 (j).

It is well settled that “a jury charge must be adjusted to the evidence, apt, and a correct statement of the applicable law.” (Punctuation and footnote omitted.) Wood v. B & S Enterprises, 314 Ga. App. 128, 130 (1) (723 SE2d 443) (2012). During the retrial of this case, to avoid any potential for confusing or misleading the jury, the trial court should not include in its charge on the “innocent party” defense the language derived from the drug forfeiture statute. The trial court instead should charge the jury using language derived from OCGA § 16-14-7 (j), the definition of “constructive knowledge” set forth in Division 1 (c) of this opinion, and the description of the applicable burden-shifting framework set forth in that same division.

Decided July 11, 2012

Wimberly, Lawson, Steckel, Schneider & Stine, Les A. Schneider, Paul Oliver, Kathleen J. Jennings, Rhonda L. Klein, for appellant.

S. Hayward Altman, District Attorney, Michael G. Lambros, Andrew J. Ekonomou, for appellee.

Judgment reversed and case remanded for new trial.

Adams and McFadden, JJ., concur.

       The State also sought forfeiture against two defendants (the convenience store and its owner) in personam, but those claims were dismissed after the two defendants reached a settlement with the State.

       Amusement Sales filed its notice of appeal from the verdict and judgment on October 26, 2010, but the trial court did not actually enter judgment on the verdict until September 12, 2011. Although Amusement Sales’s notice of appeal was premature, “[a] prematurely filed notice of appeal is treated as effective upon the filing of the order or judgment appealed.” (Citation and punctuation omitted.) Mitchell v. Cancer CarePoint, 299 Ga. App. 881, 882, n. 1 (683 SE2d 923) (2009). See Gillen v. Bostick, 234 Ga. 308, 310-311 (1) (215 SE2d 676) (1975).

       In a related enumeration of error, Amusement Sales asserts that the uncontroverted evidence showed that the criminal acts committed at the store did not constitute the felony crime of commercial gambling, but rather the misdemeanor offense of giving a cash reward to a customer playing a bona fide coin-operated amusement machine. See OCGA§ 16-12-35 (g). Amusement Sales’s assertion is unpersuasive, given that there was evidence from which the jury could find that the eight machines at the store constituted gambling devices rather than bona fide coin-operated amusement machines.

       We also note that the General Assembly recently passed Senate Bill 181, which was signed into law by the Governor on May 2, 2012. The bill adds a new Code section, OCGA § 16-1-12, which prohibits a SADA appointed in a forfeiture action from being compensated on a contingency basis by a percentage of the assets that arise or are realized from the forfeiture action. See Greater Ga. Amusements, 317 Ga. App.__ (2), n. 1.

       As an alternative ground for disqualification, Amusement Sales argues that the district attorney lacked authority to appoint the SAD As in this case because the governing authority of Emanuel County never properly approved of their appointment as required by OCGA § 15-18-20. The same argument was raised by the defendants and rejected by this Court in Greater Ga. Amusements, 317 Ga. App. at_(1). Again, we find this Court’s reasoning in Greater Ga. Amusements to be persuasive.

       OCGA § 16-13-49 (e) (1) (A) provides:
      (e) (1) A property interest shall not be subject to forfeiture under this Code section if the owner of such interest or interest holder establishes that the owner or interest holder: (A) Is not legally accountable for the conduct giving rise to its forfeiture, did not consent to it, and did not know and could not reasonably have known of the conduct or that it was likely to occur ....

       Because we concluded in Division 2 that a new trial is necessary in this case, we need not determine whether the trial court’s inclusion of language from the drug forfeiture statute harmed Amusement Sales.