author: Doyle, Judge.

text:
    A11A0258.
    COHEN v. THE ALFRED AND ADELE DAVIS ACADEMY, INC.
    (714 SE2d 350)
   Doyle, Judge.

Allyson Cohen appeals the trial court’s order awarding attorney fees to The Alfred and Adele Davis Academy, Inc. (“the Academy”), pursuant to OCGA § 9-11-68, Georgia’s offer of settlement statute. We affirm, for reasons that follow.

Cohen filed suit against the Academy and Steven Bailaban, individually and as headmaster of the Academy, on April 14, 2006, alleging slander. Cohen filed several amended complaints thereafter, asserting various additional claims including tortious interference, fraud, misrepresentation, undue influence, RICO, and intentional infliction of emotional distress. Four months after Cohen filed her initial complaint, the Academy made an offer of settlement in the amount of $750, pursuant to OCGA § 9-11-68 (a); Cohen did not respond to the offer. Thereafter, the defendants filed a motion for summary judgment, which the trial court granted. Cohen appealed the summary judgment order, but she later dismissed her appeal.

Following the entry of judgment in favor of the defendants, the Academy filed a motion for attorney fees and litigation expenses pursuant to OCGA § 9-11-68. Cohen filed a response to the motion, arguing that the Academy’s motion was not made in good faith. She did not, however, contend that the attorney fees and litigation expenses were not incurred or that they were not reasonable. After a hearing, the trial court granted the motion and ordered Cohen to pay $84,104.63 in attorney fees and expenses of litigation to the Academy. Cohen appeals the award on several grounds.

1. Cohen argues that the trial court erred by determining that the Academy’s offer of settlement was made in good faith. We disagree.

Georgia’s offer of settlement statute, OCGA § 9-11-68, “was enacted as part of the Tort Reform Act of 2005.” It provides, in relevant part, that if a defendant makes an offer of settlement pursuant to OCGA § 9-11-68 (a), and the plaintiff rejects it, then

the defendant shall be entitled to recover reasonable attorney [ ] fees and expenses of litigation incurred by the defendant or on the defendant’s behalf from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.

The offer of settlement statute further provides that the trial “court shall order the payment of attorney[ ] fees and expenses of litigation upon receipt of proof that the judgment is one to which the provisions of either paragraph (1) or paragraph (2) of subsection (b) of this Code section apply.” Nevertheless, “[i]f a party is entitled to costs and fees pursuant to the provisions of this Code section, the court may determine that an offer was not made in good faith in an order setting forth the basis for such a determination. In such case, the court may disallow an award of attorney[ ] fees and costs.”

Cohen argues that the trial court erred by awarding fees because the Academy’s offer was not made in good faith, as evidenced by (1) the Academy’s position throughout the litigation that Cohen’s claims were without merit and frivolous; (2) the Academy’s unwillingness to enter into settlement negotiations to avoid unnecessary litigation; (3) the amount of the settlement offer, given that the Academy ultimately incurred $84,000 in attorney fees defending Cohen’s claims; and (4) counsel for the Academy “engaging] in a pattern of harassment against [Cohen] throughout the litigation.” We find these arguments unpersuasive, and they provide no basis for reversal.

The trial court granted the Academy’s motion for summary judgment, and Cohen ultimately dismissed her appeal of that order, which supports the Academy’s position that Cohen’s claims were without merit and/or evidentiary support as a matter of law. And because the Academy reasonably and correctly anticipated that its exposure was minimal, the fact that it was willing to settle Cohen’s claims for a nominal value does not demand a finding that its offer was made in bad faith. Similarly, the fact that the Academy ultimately incurred $84,000 in attorney fees to defend Cohen’s claims — an assertion that Cohen did not dispute — does not preclude a finding of good faith.

As explained by the Supreme Court,

[t]he clear purpose of [OCGA § 9-11-68] is to encourage litigants in tort cases to make and accept good faith settlement proposals in order to avoid unnecessary litigation . . . [, which] is certainly a legitimate legislative purpose, consistent with this State’s strong public policy of encouraging negotiations and settlements.

Under the facts of this case, the trial court did not abuse its discretion in concluding that the Academy made its settlement offer in good faith.

2. Cohen further argues that the trial court erred by failing to issue findings of fact and conclusions of law on the issues of bad faith and the amount of the fees. We disagree.

OCGA § 9-11-68 (d) (1) requires the trial court to award attorney fees and litigation expenses if the statutory requirements of subsection (a) (1). of the statute are met, unless the trial court concludes, “in an order setting forth the basis for such a determination,” that the offer was not made in good faith, in which case it may disallow an award of fees and costs. By its terms, OCGA § 9-11-68 does not require that the trial court make written findings of fact or conclusions of law unless the court concludes that an offer was not made in good faith, and we decline to impose a requirement not mandated by the statute. Cohen’s argument that we should require a trial court to support an order of attorney fees issued pursuant to OCGA § 9-11-68 with written findings of fact as required by OCGA § 9-15-14 (and the cases interpreting that Code section) is simply unavailing.

3. Cohen argues on appeal, for the first time, that the version of OCGA § 9-11-68 (2005) that was in effect at the time she filed her lawsuit did not allow for an award of fees and expenses unless the plaintiff obtained a verdict, and that retroactive application of the statute constituted error. Because she failed to assert this retroac-tivity claim to the trial court, Cohen has waived it.

4. In her final enumeration and for the first time on appeal, Cohen contends that the Academy’s motion was not timely filed. We need not address this issue, however, because it was not raised or ruled upon in the trial court.

Decided June 17, 2011

Reconsideration denied July 13, 2011

Charles M. Cork III, for appellant.

Gray, Rust, St. Amand, Moffett & Brieske, Matthew G. Moffett, Wayne S. Melnick, for appellee.

Judgment affirmed.

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

       Cohen appealed to the Supreme Court of Georgia, which transferred the case to this Court in an order concluding that it lacked subject matter jurisdiction.

       Bailaban is not a party to this appeal.

       In her complaint, Cohen alleged that she and her former husband were divorced and engaged in an ongoing custody dispute, during which time their daughter attended the Academy. Cohen’s claims against the Academy were based on conduct that allegedly occurred while her daughter was a student at the school.

       At the hearing on the motion, Cohen declined to cross-examine counsel for the Academy regarding the fees, and she stated that “I’m not contesting. . . that they spent $84,000. I’m sure they did spend $84,000 with the amount of motions they filed.”

        Smith v. Baptiste, 287 Ga. 23, 24 (1) (694 SE2d 83) (2010).

       OCGA § 9-11-68 (b) (1). The statute provides a similar provision for an offer of settlement made by a plaintiff and rejected by a defendant. See OCGA § 9-11-68 (b) (2).

       (Emphasis supplied.) OCGA § 9-11-68 (d) (1).

       (Emphasis supplied.) OCGA § 9-11-68 (d) (2).

       See generally OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff s case.’’) (emphasis omitted).

       (Punctuation omitted.) Smith, 287 Ga. at 29 (2).

       See, e.g., Tiara Condo. Assn., Inc. v. Marsh USA, Inc., 697 FSupp.2d 1349, 1353 (S.D. Fla. 2010) (trial court did not abuse its discretion in awarding attorney fees based on its determination that the offer of settlement was made in good faith because although the “offer of judgment was essentially nominal, so too was the prospect of an adverse judgment against it given its significant, and ultimately meritorious, defenses”); City of Neptune Beach v. Smith, 740 So.2d 25, 27 (Fla. 1st DCA 1999) (acknowledging the “widely accepted view that even a nominal offer may be made in good faith”).

       OCGA § 9-11-68 (d) (2).

       See OCGA § 9-11-68 (d) (2). Cf. Great West Cas. Co. v. Bloomfield, 303 Ga. App. 26, 30 (3) (693 SE2d 99) (2010) (vacating an order denying attorney fees under OCGA § 9-1Í-68 and remanding the case for the trial court to enter written findings of fact setting forth the basis for denying the request for fees).

       prior amendment on April 27, 2006, subsection (b) of OCGA § 9-11-68 provided: “When the complaint sets forth a tort claim for money, if the offeree rejects or does not accept the offer and the judgment finally obtained by the offeree was not at least 25 percent more favorable than the last offer, the offeree shall pay the offeror’s reasonable attorney’s fees and costs incurred after the rejection of the last offer.” (emphasis supplied). See O’Leary v. Whitehall Constr., 288 Ga. 790, n. 3 (708 SE2d 353) (2011).

       As of April 27, 2006, the amended subsection (b) of the statute provided:
      (1) If a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred by the defendant or on the defendant’s behalf from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.
      (emphasis supplied). See O’Leary, 288 Ga. at 792, n. 4.

       See Smith, 287 Ga. at 29-30 (3) (declining to consider appellant’s claim that retroactive application of OCGA § 9-11-68 was unconstitutional because the issue was not distinctly ruled upon by the trial court); Kromer v. Bechtel, 289 Ga. App. 306 (1) (656 SE2d 910) (2008) (same); Lowery v. Atlanta Heart Assoc., P.C., 266 Ga. App. 402, 404 (2) (597 SE2d 494) (2004) (“Our appellate courts are courts for the correction of errors of law committed in the trial court. Routinely, this Court refuses to review issues not raised in the trial court. . . . Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court.”) (punctuation omitted).

       The 2005 version of the offer of settlement statute provided that a motion for fees pursuant to that Code section had to be made “within 30 days of the entry of the judgment or after voluntary or involuntary dismissal. . . .” OCGA § 9-11-68 (d). The current statute does not contain a time limit.

       See Lowery, 266 Ga. App. at 404 (2).


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A10A0630.
    AMERICAN BENEFIT CORPORATION et al. v. PARKING COMPANY OF AMERICA, INC. et al.
    (714 SE2d 653)
   Smith, Presiding Judge.

In this dispute concerning title to a parcel of real property, the American Benefit Corporation (“ABC”), Potomac National Corporation (“Potomac”), and Adeola Oni appeal from a trial court order that, among other things, entered a default judgment against ABC and Potomac and declared that Parking Company of America and others (“the plaintiffs”) have legal title to the disputed property. For the reasons that follow, we affirm in part and reverse in part.

The record reveals that the parties are adjoining land owners and/or parties with an interest in the land. The portion of the parcel of property in dispute is a 748-square-foot tract (the “corner parcel”) in the northeast corner of a 10,876-square-foot tract. The parties do not dispute that the larger tract is owned by the plaintiffs and used as a parking lot. The plaintiffs alleged that they “may not have record title” to the corner parcel, but that they are “the rightful holders of title” to it. The plaintiffs alleged further that the property, including the corner parcel, was used for a furniture store from 1924 to 1993, and that in 1993 the store was demolished and the property has since been used as a parking lot.

The plaintiffs’ complaint claimed that in 2002, Oni removed a stone retaining wall which ran along the northern border of the plaintiffs’ property, destroyed landscaping, constructed a concrete berm on the property, and installed chain link fence cutting off the plaintiffs’ access to the corner parcel and main road by way of an alley. They also claimed that in 2004, Oni extended the chain link fence further blocking their access.

On March 28, 2008, the plaintiffs filed an “Action for Injunction, Declaratory Judgment and Damages.” Potomac and Oni acknowledged service of the complaint in August 2008. On September 4, 2008, the trial court issued a case management order requiring the parties to identify witnesses by “1/30/09” and to file dispositive motions and submit a proposed pretrial order by “3/3/09.” The order also set an April 3, 2009 date for the pretrial hearing and trial. Oni, Potomac and ABC filed an answer on September 12, 2008.

On January 8, 2009, the attorney representing Oni, ABC, and Potomac, filed a motion for withdrawal as “counsel for Defendant Adeola O. Oni.” The court granted that motion on February 10, 2009. The plaintiffs filed a list of proposed witnesses and their portion of the proposed pretrial order by the court’s deadlines, but Oni, ABC and Potomac did not. When neither Oni, nor ABC, nor Potomac appeared at the April 3 pretrial conference, and because they failed to file their portion of the pretrial order, the trial court ruled that only Oni would be allowed to testify at trial.

Oni submitted his “Amended Portion of the Pretrial Order” on April 7, 2009 in which he claimed to be the rightful owner of the corner parcel. Attached to this document was a copy of a quitclaim deed purporting to convey to Potomac the corner parcel in April 2004.

On April 7, when the case was called for trial, only Oni appeared. The trial court granted the plaintiffs’ motion to strike the answer of ABC and Potomac on the ground that “Oni is not a licensed attorney, and no attorney appeared” for ABC and Potomac. The trial court subsequently entered a default judgment against ABC and Potomac for their failure to appear and granted the plaintiffs’ motion for a declaratory judgment and injunctive relief. In doing so, the trial court ordered that the plaintiffs have full legal ownership and hold fee simple title to all of the property and directed the clerk of court to cancel Potomac’s quitclaim deed “said deed being fraudulent and false.” It is from this order that Oni, ABC, and Potomac appeal.

1. The appellants argue that the trial court erred in striking the answers of ABC and Potomac and in entering default judgment against them. They complain that they were not informed of the trial court’s deadlines and hearing dates. They also maintain that their counsel had withdrawn only from the representation of Oni, not of the corporations, and therefore remained responsible for filing a witness list, preparing their portion of the proposed pretrial order, and appearing at the pretrial hearing and trial. The record reveals that counsel represented Oni, ABC, and Potomac, but the motion to withdraw requested that counsel be allowed to withdraw only from representing Oni, and the trial court’s order stated that it was permitting counsel to “withdraw as counsel for Defendant Adeola O. Oni.”

But whether or not ABC and Potomac remained represented by counsel, they failed to submit a pretrial order and failed to appear at either the pretrial conference or at trial. “Only a licensed attorney is authorized to represent a corporation in a proceeding in a court of record.” (Citations, punctuation and footnote omitted.) Columbus Transmission Co. v. Murry, 277 Ga. App. 243, 244 (1) (626 SE2d 202) (2006). And “[unquestionably a trial court may enter a default judgment against a party that does not appear for trial.” (Citation and footnote omitted.) Migmar, Inc. v. Williams, 281 Ga. App. 870 (637 SE2d 471) (2006). Because ABC and Potomac did not have counsel present at the call of trial and the record reveals that the trial calendar was published, the court did not abuse its discretion in entering a default judgment against them for their failure to appear. See id. at 872-873 (3).

2. The appellants complain that the trial court erred in prohibiting Oni from tendering any documents or offering the testimony at trial other than his own. The trial court ruled that because Oni, ABC, and Potomac failed to enter their portion of the pretrial order as required by the case management order, “no witnesses or documents” were to be allowed, with the exception of Oni who “shall be allowed to testify at trial.”

The pretrial order, when entered, “controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.” OCGA § 9-11-16 (b). And “[t]he trial court has the power to impose appropriate sanctions to make effective its pretrial orders and appellate courts review the action taken for abuse of discretion.” (Citation omitted.) Robinson v. Williams, 280 Ga. 877, 878 (1) (635 SE2d 120) (2006). But although “[cjontempt may at times be proper[,] and in an extreme case the plaintiffs action may be dismissed or the defendant precluded from introducing evidence relating to his defense . . . these remedies are too drastic if less harsh sanctions are appropriate.” (Citation and punctuation omitted.) Ambler v. Archer, 230 Ga. 281, 289 (1) (196 SE2d 858) (1973). See also Wilson v. McNeely, 302 Ga. App. 213, 214-215 (1) (690 SE2d 512) (2010).

Here, Oni’s counsel filed a motion to withdraw before Oni was required to identify witnesses, and the trial court granted that motion before the pretrial order was due. The record reveals that Oni was acting pro se at the time the pretrial order was due, that counsel’s motion to withdraw only informed Oni of his obligation to prepare for trial and did not inform him of the date the pretrial order was due or the scheduled trial date, and that Oni filed his portion of the pretrial order — although it was four days late and therefore untimely. Under these conditions, and in the absence of any aggravating circumstances noted in the trial court’s order or appearing in the record, we hold that the trial court abused its discretion by prohibiting Oni from tendering documents or presenting evidence as a sanction for Oni’s failure to appear at the pretrial conference and his failure to prepare his portion of the pretrial order. See Ambler, supra; Carder v. Racine Enterprises, 261 Ga. 142, 143 (2) (401 SE2d 688) (1991) (limitation on defendants’ presentation of case was too broad a sanction for failing to prepare a pretrial order).

We therefore reverse the judgment in this case with regard to Oni and any portion of the judgment that may affect Oni including the trial court’s order that the plaintiffs have “full legal ownership and hold[ ] fee simple title to all of the property.” The case against Oni returns to the position it was in prior to trial. See Carder, supra.

3. The appellants assert that the trial court erred in “entering the default judgment as to appellees’ equitable claims without holding an evidentiary hearing.” But as explained in Division 1, ABC and Potomac failed to appear at the pretrial hearing or at trial. The court therefore properly entered a default judgment against them. Lewis v. Carscallen, 274 Ga. App. 711, 714 (3) (618 SE2d 618) (2005). And the absence from the record of a transcript of the pretrial hearing or of the trial, or of a legally authorized substitute (see OCGA § 5-6-41 (g)), prevents us from considering this claim. See Sterling, Winchester & Long v. Loyd, 280 Ga. App. 416, 419 (4) (634 SE2d 188) (2006). “In the absence of a transcript we must assume the trial court’s action would be supported by the record.” (Citation and punctuation omitted.) City of Atlanta v. Paulk, 274 Ga. App. 10, 13 (1) (616 SE2d 210) (2005); see Sterling, Winchester & Long, supra.

The appellants complain that because the plaintiffs “did not present any evidence which would justify the award of the property,” the trial court was unauthorized to enter a default judgment. But this claim of error is moot in light of our holding in Division 2.

Decided July 13, 2011.

Perry A. Phillips, for appellants.

Smith, White, Sharma & Halpern, Furman Smith, Jr., Holt, Ney, Zatcoff & Wasserman, Melissa J. Perignat, for appellees.

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

Ellington, C. J., and Adams, J., concur.

       Steve Cohen, Phyllis Freeman, Ramona Freeman, and Joseph Jacobson.

       These parties raised no issue of defective service in their answer.

       The record reveals that Oni was the principal for both ABC and Potomac.

       The amended notice of appeal states: “Defendants have contacted all of the Court Reporters who could have transcribed the hearings and none of the Court Reporters have any record of having recorded the proceedings concerning Defendants’ case on April 3, 2009 or April 7, 2009. Accordingly, no transcript will be included.”


text:
    A11A0038.
    MILLSAPS v. THE STATE.
    (714 SE2d 661)
   Doyle, Judge.

After a jury trial, Travis R. Millsaps was convicted of one count of violating the Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007 by utilizing the internet to seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit an illegal sex act; attempted aggravated child molestation; and attempted child molestation. Millsaps appeals, arguing that the trial court erred by (1) denying his motion to exclude custodial statements based on improper hope of benefit in violation of OCGA § 24-3-50; (2) denying his request to instruct the jury on the definition of incitement in the context of entrapment; and (3) denying his motion for a directed verdict of acquittal based on entrapment. Millsaps also argues that he received ineffective assistance of counsel because (4) he requested that the jury be instructed to consider a witness’ intelligence when determining credibility; and (5) he failed to object to the trial court’s instruction on excluding statements based on an illegal detention. We affirm for the reasons that follow.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant ... no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

So viewed, the evidence presented at trial established that on July 31, 2008, an officer with the Internet Crimes Against Children Task Force operating in north Georgia posted an advertisement in the “Casual Encounters” section of craigslist.org, a website that functions similarly to a newspaper classified advertisement section. The advertisement appeared to be from an 18-year-old female, “Hannah,” looking for a man with whom to “end . . . Summer Vacation with a Bang.” On August 5, 2008, Millsaps e-mailed a response to the ad. The officer posing as “Hannah” responded to Millsaps’s e-mail, telling him “like [I] said[, I’m] very mature an[d] interested. [J]ust wanted to let you know up front [I’m] not quite 18” and sending pictures of a 13-year-old female from an FBI database. The two began corresponding via instant messenger, where “Hannah” explained that she was actually 14 years old. Although Millsaps expressed hesitation at “Hannah’s” young age, they continued to communicate, discussed meeting in person, and discussed having sexual intercourse and oral sex.

On August 8, Millsaps had a telephone conversation with another task force agent, with whom he discussed plans to meet in person.

Upon arriving at the location, Millsaps was apprehended and interviewed by officers, to whom he admitted he had intended to meet with “Hannah,” had brought condoms with him, and might have had sex with her, as they had previously discussed.

The jury returned a guilty verdict against Millsaps, and he thereafter filed a motion for new trial, which the court denied. Millsaps now appeals.

1. First, Millsaps argues that the trial court erred by denying his motion to exclude custodial statements based on an improper hope of benefit in violation of OCGA § 24-3-50, which Millsaps contends was the officers’ promises to avoid reporting his arrest to his wife. We disagree.

At a Jackson-Denno hearing, the trial court examines the totality of the circumstances to determine whether a preponderance of the evidence shows that the confession was voluntary. Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.

“The promise of a hope or benefit that will render a confession involuntary under OCGA § 24-3-50 must relate to the charge or sentence facing the suspect.”

Here, the trial court’s determination that Millsaps’s statement to officers was not predicated on a hope of benefit is not clearly erroneous. The trial court correctly concluded that the officer did not make a promise or offer of a special benefit or a lighter sentence in exchange for Millsaps’s testimony, but rather addressed Millsaps’s concerns that the officers would contact his wife. “[T]he phrase ‘hope of benefit’ generally means the reward of a lighter sentence. Thus, confessions made under a promise of collateral benefit are not for that reason excludable.” Protecting Millsaps’s relationship with his wife was a collateral benefit. “Furthermore, [Millsaps] signed a form which acknowledged that he had not been promised anything” in exchange for his cooperation with law enforcement. Accordingly, this claim is without merit.

2. Millsaps also contends that the trial court erred by denying his request to instruct the jury on the definition of “incitement” in the context of entrapment. We disagree.

Millsaps did not object to the trial court’s decision not to charge the jury on his requested definition of incitement; however, Millsaps also enumerates this error under the auspice of ineffective assistance of counsel, and we review the contention under that standard. After a hearing on Millsaps’s motion for new trial, the court denied this claim of ineffective assistance of counsel.

To show ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. More specifically, a defendant must show that trial counsel’s deficient performance created a reasonable probability of a different outcome.

OCGA § 16-3-25 states in pertinent part that “[e]ntrapment exists where ... a government officer or employee, ... by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.” The trial court’s charge to the jury included the language of the statute.

The rule is that when the charge embraces a section of the Code which contains technical words or expressions, the meaning of which is probably not understood by a person unlearned in the law, the court should so define them as to convey to the jury a correct idea of their meaning, but it is unnecessary for the court, even upon request, to explain words and expressions which are of ordinary understanding and self-explanatory.

The term “incitement” as used in the statute to define entrapment is a term of common knowledge, and therefore, the trial court’s determination that trial counsel did not provide ineffective assistance by failing to object to the trial court’s denial of Millsaps’s request to charge the jury as to the definition of “incitement” was not clearly erroneous.

3. Millsaps also contends that the trial court erred by denying his motion for a directed verdict of acquittal based on entrapment. We disagree.

Entrapment is an affirmative defense that is established by showing that (1) the idea for the crime originated with the State agent; (2) the defendant was induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant was not predisposed to commit the crime.

As a general rule, in order to raise the defense of entrapment, the defendant must first admit the commission of the crime and then show that he did so because of the unlawful solicitation or inducement of a law enforcement officer. The rationale for this rule is that it is thought to be factually inconsistent and confusing for a defendant to deny that he committed a criminal act and simultaneously to complain that he was entrapped into its commission. But, if a reasonable inference of entrapment may be drawn by a rational jury from the State’s evidence, the defendant is entitled to a jury charge on entrapment unless he has presented evidence of entrapment inconsistent with his denial of the commission of the crime.

“If the defendant establishes a prima facie case of entrapment, the burden is then upon the [SJtate to disprove entrapment beyond a reasonable doubt. The determination of whether the defendant was entrapped is for the jury unless the uncontroverted evidence demands a finding of entrapment.”

Here, as testified to by a task force officer, Millsaps’s statement to the officers after his arrest was that he intended to have sex with “Hannah” even though he was aware that she purported to be 14 years old. Even without such admission, however, the trial court charged the jury on entrapment (correctly as we determined in Division 2), and the jury’s conclusion that entrapment did not occur is supported by the record evidence, including the facts that (1) Millsaps continued communicating with “Hannah”, including having sexually explicit conversations with her in which he stated he wanted “a lot of oral,” after he learned that she was 14 years old; (2) Millsaps discussed with “Hannah” how she could meet him if she could not drive, inquired whether she had ever snuck away from home before, and stated that he believed the union would be legal if he was 16 years old, instead of his actual age; (3) Millsaps left his home of Tennessee to meet a purportedly 14-year-old girl in order to have sex with her, which he admitted in his statements to officers; and (4) Millsaps brought condoms with him, which he stated were to prevent any “accidents” in the event he was able to have sex with “Hannah.”

4. Millsaps claims that trial counsel was ineffective for requesting inclusion of the pattern jury charge on witness credibility, which stated that a juror could consider, among other factors, a witness’ intelligence when making a credibility determination.

Analyzing the recitation of this charge under both the reversible and plain error standards of review, the Supreme Court of Georgia has held that “even assuming that the better practice is to omit intelligence as one of the factors in the credibility charge, its inclusion is not reversible error.” Thus, “because no reversible error occurred with respect to the jury instruction on credibility, [the trial court did not clearly err by determining that Millsaps] cannot succeed on his . . . claim that trial counsel rendered ineffective assistance in failing to object to that instruction.”

5. Finally, Millsaps argues that he received ineffective assistance of counsel because his trial counsel requested that the trial court include a pattern jury instruction concerning the voluntariness of a statement made during an illegal detention because it amounted to improper comment on the evidence by the trial court. Specifically, the portion of the charge at issue states that “under the law in order for a statement to be excluded because of illegal detention, it must be shown that the statement was, in fact, induced by such illegal detention.” In conjunction with the trial court’s preliminary instructions to the jury, which included the statement that the court “will admit or exclude evidence according to th[e] rules [of evidence],” Millsaps contends that the trial court improperly charged the jury that any statements made by Millsaps while in custody were voluntary. We disagree.

The remainder of the trial court’s instruction states, “[t]he second question that you must answer is whether the Defendant’s statement was clearly voluntary, that is freely and willingly given” and “[i]f you fail to find any one of the conditions that I have just described, you must disregard the statement entirely and give it no consideration in reaching your verdict.” The instructions taken as a whole unambiguously describe to the jury its role in determining whether any statements made by Millsaps were voluntarily given.

Decided July 13, 2011

Garland, Samuel & Loeb, Donald F. Samuel, William C. Lea, McNeill Stokes, for appellant.

Kermit N. McManus, District Attorney, Mark P. Higgins, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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

       OCGA § 16-12-100.2 (d) (1).

       OCGA §§ 16-4-1; 16-6-4 (c).

       OCGA §§ 16-4-1; 16-6-4 (a).

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

       (Punctuation omitted.) McKay v. State, 234 Ga. App. 556, 556-557 (1) (507 SE2d 484) (1998).

       378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       (Citation and punctuation omitted.) Clark v. State, 309 Ga. App. 749, 751-752 (3) (711 SE2d 339) (2011).

       (Citation and punctuation omitted; emphasis supplied.) Id. at 753 (3) (a).

       (Punctuation omitted.) Robbins v. State, 290 Ga. App. 323, 328 (3) (659 SE2d 628) (2008) (concluding that the defendant’s “wife’s promise not to divorce her husband, which did not bear on the question of punishment, was a promise of collateral benefit” and therefore was not an offer or hope of benefit).

       (Citation and punctuation omitted.) Clark, 309 Ga. App. at 753 (3) (a).

       (Citations and punctuation omitted.) Robinson v. State, 308 Ga. App. 45, 46 (2) (706 SE2d 577) (2011). See also Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       (Emphasis supplied.)

       (Punctuation omitted.) Baird v. State, 201 Ga. App. 378 (411 SE2d 332) (1991) (holding that “dangerous weapon” was an expression of ordinary understanding), citing Ricks v. State, 156 Ga. App. 647, 648 (3) (275 SE2d 730) (1980) (“offensive weapon”); Anderson v. State, 226 Ga. 35, 36 (2) (172 SE2d 424) (1970) (“assault”). See also Hollis v. State, 295 Ga. App. 529, 533 (2) (672 SE2d 487) (2009) (holding “that the words ‘harassing and intimidating,’ as used in OCGA § 16-5-91, are not words of art but rather are words of common understanding and meaning”) (punctuation omitted); McCallister v. Doe, 181 Ga. App. 602, 604 (1) (353 SE2d 89) (1987) (“courts of this state have declined to find error when the trial court failed to define such terms as ‘reasonable doubt,’ ‘accident,’ ‘spirituous liquors,’ ‘possession,’ and ‘maliciously’ ”) (citations omitted).

       See Robinson, 308 Ga. App. at 46 (2).

       See St. Jean v. State, 255 Ga. App. 129, 130 (564 SE2d 534) (2002).

       (Citations and punctuation omitted.) Id.

       (Citation omitted.) Jackson v. State, 305 Ga. App. 591, 593 (699 SE2d 884) (2010).

       See St. Jean, 255 Ga. App. at 130-131 (although the idea for the crime originated with the State, if the defendant offered no evidence of undue persuasion, incitement, or deceit, or that defendant was not predisposed to commit the crime, then there is no entrapment).

        Howard v. State, 288 Ga. 741, 747 (6) (707 SE2d 80) (2011). See also Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.31.10 (4th ed. 2007).

       Id. See also Robinson, 308 Ga. App. at 46 (2).

       (Emphasis supplied.) See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, §§ 1.32.31, 1.32.32 (4th ed. 2007).

       See Ford v. State, 281 Ga. App. 114, 116 (2) (635 SE2d 391) (2006).


author: Phipps, Presiding Judge.

text:
    A11A0082.
    A11A0083.
    WASHINGTON v. THE STATE. HURST v. THE STATE.
    (714 SE2d 364)
   Phipps, Presiding Judge.

Kenneth Washington and Kendrick Hurst were tried jointly and both were convicted of robbery, kidnapping, aggravated assault, and possession of marijuana with intent to distribute. In Case No. A11A0082, we find no merit in Washington’s claims that the state violated Batson v. Kentucky during jury selection; that the court erred in admitting as substantive evidence a written statement from the victim; and that the court improperly charged the jury. In Case No. A11A0083, we find no merit in Hurst’s claims that the state violated Batson v. Kentucky and that the evidence was insufficient to support the verdicts. In both cases, however, the court erred, as Washington claims, in failing to merge the aggravated assault conviction into the robbery conviction; accordingly, we affirm in part and vacate in part, and we remand the cases for resentencing.

The events at issue occurred on the night of July 27, 2007. The robbery victim, Michael Chitwood, testified that he saw a gold SUV with two occupants pull into the parking lot of a store. He had seen the passenger there before. He approached the SUV and began to talk to the passenger about purchasing some marijuana; he then got into the back seat of the SUV and took approximately $460 from his wallet. At that point, the driver of the SUV pointed a gun at Chitwood and demanded his money. Although he was afraid, Chit-wood refused to hand over the money.

The driver then instructed the passenger to lock the doors and close the windows of the SUV Chitwood yelled for help and tried to prevent the window from closing. The passenger put his arm around Chitwood’s neck and held him in a choke hold, and the driver drove out of the parking lot. The passenger and Chitwood struggled, and Chitwood pushed his feet against one of the SUV’s doors. The passenger then obtained the gun, placed it against Chitwood’s head, asked him whether he wanted to die, and demanded the money.

Chitwood lost his cell phone during the struggle. He also briefly lost consciousness, at which point he dropped the money that he had been holding in his hand. When he regained consciousness, the men in the SUV ordered him out of the vehicle, and he complied. As the SUV was being driven away, Chitwood memorized its license tag number, which he provided to the police shortly thereafter. He later was shown a photographic array, from which he identified Hurst as the passenger in the SUV At trial, he again identified Hurst as the passenger.

A police investigator testified that police found, parked on the side of a nearby road, an unoccupied vehicle that matched the SUV’s description (including the license tag number). This led the investigator to interview Washington, who admitted the SUV belonged to him and consented to its search. Therein, the investigator found Chitwood’s cell phone, and another officer found on the back seat a small baggie of a substance later determined to be marijuana. The investigator testified that there were fingerprints and palm prints on the window of one of the rear doors and a footprint on that door.

The investigator testified that, in his interview, Washington stated that he had driven to the store with a passenger to sell drugs, that Chitwood had gotten into the SUV and that a fight had erupted between Chitwood and the passenger over the marijuana sale. Washington further stated that he got scared and drove to a convenience store, that the fight concluded, and that he and the passenger then left Chitwood at the convenience store. He denied that a gun was involved. Washington’s girlfriend testified to telling the police investigator that, on the evening of July 27, she had seen Washington leave with someone named Kendrick.

Case No. A11A0082

1. Washington argues that the trial court erred in denying his Batson challenge to several of the state’s peremptory jury strikes.

The evaluation of a Batson challenge involves a three-step process: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven discriminatory intent.

The trial court’s findings are entitled to great deference, and should not be disturbed unless clearly erroneous.

The court found that Washington had made a prima facie showing of racial discrimination because the state had used some of its peremptory strikes to eliminate seven out of ten African-American prospective jurors. The state offered explanations for the strikes. The prosecutor explained that she struck the first prospective juror because he was close in age to the defendants and did not have a stable work history. She struck the second prospective juror because she had a criminal history, had been involved in a dispute involving allegations of fraud, and knew the public defender. She struck the third prospective juror because he had a criminal history, knew the state’s investigator, and was related to someone who, in the prosecutor’s opinion, was not an “upstanding citizen.” She struck the fourth prospective juror because she had a criminal history and had fewer ties to the community due to working outside the county. She struck the fifth prospective juror because he had a criminal history, his wife was a social worker, he had previously been stricken from jury panels, and he was distantly related to one of the defendants and had remarked that he “didn’t have to say anything” about this relationship. She struck the sixth prospective juror because she had a criminal history, had the same address as another person with a criminal history, and appeared disinterested during jury selection. She struck the seventh prospective juror because he had a criminal conviction, had the same address as a “druggie,” and his employment status was unclear.

“Unless a discriminatory intent is inherent in the proponent’s explanation, the reason offered will be deemed race[-]neutral.” As a discriminatory intent was not inherent in the explanations offered by the state for its peremptory strikes, we do not find that the court clearly erred in concluding that those explanations were race-neutral.

Moreover, we find no clear abuse of discretion in the court’s conclusion that Washington failed to prove discriminatory intent. The record on voir dire does not support Washington’s contention that the state’s proffered explanations for the strikes lacked a factual basis. And although Washington argues that the state should have more fully developed the record during voir dire to support the explanations, it is clear under Georgia law that Washington, as the opponent of the strikes, bore the burden of demonstrating to the trial court that an improper discriminatory motive underlay the exercise of the strikes, and of making a record to support his contentions in that regard.

* Washington argues that the state had a discriminatory motive because it did not strike two similarly-situated white prospective jurors — one who was unemployed and the other who had a prior conviction. But where, as here, the state provides multiple reasons for striking a prospective juror, “it cannot be presumed that a reason applied to one juror, of one race, but not applied to another juror, of another race, is racially motivated.” Moreover, the prosecutor argued, and the court agreed, that the white prospective jurors were in fact not similarly situated, on account of other information that those prospective jurors provided during voir dire. The unemployed white prospective juror, after stating that he was not working, stated that he had an ongoing health condition. The other white prospective juror’s criminal history was not revealed during his recorded voir dire. That prospective juror, however, asked to approach the bench to discuss a response to a different question, and an unrecorded bench conference occurred. Subsequently, during the arguments on the Batson motion, the prosecutor referred to information apparently revealed during that unrecorded bench conference regarding the prospective juror’s criminal history in support of her position that the prospective juror was not similarly situated to prospective jurors who were struck. The trial judge also referred to the unrecorded bench conference in ruling on the Batson motion. Absent a transcript of that bench conference, we cannot conclude that the trial court clearly erred in finding that the white prospective juror with the criminal history was not similarly situated to the prospective jurors with criminal histories who were struck.

In determining whether Washington demonstrated a discriminatory intent in making the strikes, it was for the trial court to “ultimately decide the credibility of [the state’s] explanation.” Under these circumstances, we cannot conclude that the trial court clearly erred in denying Washington’s Batson challenge.

2. While examining Chitwood, the state questioned him about a statement he had written shortly before trial, and the court allowed him to read the statement to the jury. Washington contends that this constituted error. Although Washington’s counsel initially objected on hearsay grounds, Chitwood’s testimony about a statement he made himself did not constitute hearsay. And Washington did not preserve any other claim of error based on the admission of the statement because, after a colloquy between the court and counsel for the state and for both defendants, his counsel acquiesced to the statement’s admission and to Chitwood reading the statement to the jury. “[A] defendant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. The defendant must stand his or her ground. Acquiescence deprives the defendant of the right to complain further.”

3. Washington argues that the court should have merged his aggravated assault conviction into his robbery conviction. Whether offenses merge is a legal question, which we review de novo.

Under OCGA § 16-1-7 (a) (1), “[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if. . . [o]ne crime is included in the other.” OCGA § 16-1-6 (1) provides, in pertinent part, that a crime is “included in” the other where “[i]t is established by proof of the same or less than all the facts.” Georgia has adopted the “required evidence” test for determining when convictions merge. “[T]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

The offense of robbery required proof that property was taken from another, a fact not required to establish aggravated assault. But the offense of aggravated assault in this case was established by ♦proof of the same or less than all the facts required to establish the commission of the robbery. The indictment charged Washington with committing aggravated assault when he, “with intent to rob, ma[de] an assault upon the person of [the victim], by pointing a pistol at him, in violation of OCGA § 16-5-21 (a) (1).” A person commits assault “when he or she either . . . [attempts to commit a violent injury to the person of another; or . . . [cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” And, pertinently, a person commits robbery

when, with intent to commit theft, he takes property of another from the person or the immediate presence of another . . . [b]y use of force; . . . [b]y intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or another; or . . . [b]y sudden snatching.

The assault forming the basis of the aggravated assault with intent to rob in this case — pointing a pistol — was “contained within” the element of robbery requiring Washington to have used force, intimidation, threat or coercion, or placed the employee in fear of immediate serious bodily injury. It follows that the offense of aggravated assault merged into the offense of robbery. We therefore vacate Washington’s conviction and sentence for aggravated assault, and we remand the case for resentencing.

4. Washington contends that the court erred in instructing the jury that it could find him guilty of committing aggravated assault in a manner not alleged in the indictment. In light of our holding in Division 3, supra, this claim of error is moot.

Case No. A11A0083

5. Hurst contends that the court erred in denying his Batson motion asserting the same arguments as Washington. We find no error in the trial court’s ruling.

6. Hurst argues that the evidence was insufficient to establish his identity as the passenger in Washington’s vehicle. When an appellant challenges the sufficiency of the evidence to support the conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Evidence was presented that Chit-wood identified Hurst as the vehicle passenger who negotiated a drug sale with him, held a gun to his head, demanded his money, and struggled with him in the back seat of the SUV (where the marijuana was later found) as that vehicle was driven away. This evidence was sufficient to authorize the jury to find that Hurst was the perpetrator of the alleged offenses. Although Hurst does not challenge the sufficiency of the evidence as to any other specific element of the offenses for which he was convicted, we find that sufficient evidence was presented at trial as to the other required elements of the offenses, as well.

7. For the reasons set forth in Division 3, supra, Hurst’s conviction for aggravated assault must be vacated because it merged into his conviction for robbery, the sentence imposed thereon must be vacated, and the case must be remanded to the trial court for resentencing. Pursuant to the Supreme Court of Georgia’s decision in Mikell v. State, “[t]his disposition is required even though [Hurst] failed to raise the claim in the trial court, or to challenge the sentence for aggravated assault on appeal.” To the extent our decisions in Sanders v. State and Lewis v. State conflict with Mikell, they are hereby overruled.

Decided July 13, 2011.

Jimmonique R. S. Rodgers, for appellant (case no. A11A0082).

Teresa L. Smith, for appellant (case no. A11A0083).

W. Kendafl Wynne, Jr., District Attorney, Layla H. Zon, Assistant District Attorney, for appellee.

Judgments affirmed in part and vacated in part, and cases remanded.

Ellington, C. J., Smith, E J., Barnes, P. J., Miller, P. J., and Andrews, Mikell, Adams, Doyle, Blackwell, Dillard and McFadden, JJ., concur.

       OCGA § 16-8-40.

       OCGA § 16-5-40.

       OCGA § 16-5-21.

       OCGA § 16-13-30 (j).

       476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       Id.

        Flanders v. State, 279 Ga. 35, 37 (2) (609 SE2d 346) (2005) (citation omitted).

        Jackson v. State, 265 Ga. 897, 900 (2) (463 SE2d 699) (1995).

       Id. at 898 (2) (citation and punctuation omitted).

       See, e.g., Guzman v. State, 287 Ga. 759, 762 (2) (700 SE2d 340) (2010) (regarding prior conviction or involvement in criminal activity); Roberts v. State, 282 Ga. 548, 550 (5) (651 SE2d 689) (2007) (regarding unemployment); Trigger v. State, 275 Ga. 512, 514 (3) (570 SE2d 323) (2002) (regarding prospective juror’s inattentiveness and disinterest in process); Lyons v. State, 271 Ga. 639, 641-642 (5) (522 SE2d 225) (1999) (regarding relationship to defendant’s family); Barnes v. State, 269 Ga. 345, 350 (6) (496 SE2d 674) (1998) (regarding perception that prospective juror behaved irrationally during voir dire); Minor v. State, 264 Ga. 195, 198 (5) (442 SE2d 754) (1994) (regarding perceived lack of connections to community); White v. State, 301 Ga. App. 837-838 (689 SE2d 120) (2010) (regarding proximity in age to defendant); Askew v. State, 254 Ga. App. 137, 143 (9) (564 SE2d 720) (2002) (regarding familiarity with one of the attorneys in the case); Byron v. State, 229 Ga. App. 795, 797-798 (5) (495 SE2d 123) (1997) (regarding familial or other relationships with individuals who had criminal histories); Price v. State, 223 Ga. App. 807, 809 (3) (478 SE2d 915) (1996) (regarding bad reputation of prospective juror’s family).

       See Turner v. State, 267 Ga. 149, 152-153 (2) (476 SE2d 252) (1996); Bell v. State, 306 Ga. App. 853, 856 (703 SE2d 680) (2010); Hood v. State, 245 Ga. App. 391, 393 (4) (537 SE2d 788) (2000); Byron, supra at 798 (5). The cases cited by Washington in support of his contrary position are not binding precedent. See Ridley v. State, 235 Ga. App. 591 (510 SE2d 113) (1998) (physical precedent only); Parker v. State, 219 Ga. App. 361 (464 SE2d 910) (1995) (physical precedent only). See also Court of Appeals Rule 33 (a).

        Lingo v. State, 263 Ga. 664, 668-669 (1) (c) (437 SE2d 463) (1993) (emphasis omitted); see Roberts, supra.

       See LeMon v. State, 290 Ga. App. 527, 530 (1) (b) (660 SE2d 11) (2008).

        Rose v. State, 287 Ga. 238, 241 (2) (695 SE2d 261) (2010) (citation, punctuation and emphasis omitted).

       See Jackson, supra at 900 (2).

       See Bowers v. State, 241 Ga. App. 122, 124 (3) (526 SE2d 163) (1999) (where witness was the declarant, testifying to her own statements, the statements were not dependent upon the competency and veracity of other persons and thus were not hearsay).

        Zipperer v. State, 299 Ga. App. 792, 793 (1) (683 SE2d 865) (2009) (citation and punctuation omitted).

        Louisyr v. State, 307 Ga. App. 724, 730 (2) (706 SE2d 114) (2011).

        Drinkard v. Walker, 281 Ga. 211, 217 (636 SE2d 530) (2006).

       Id. at 215 (punctuation and footnote omitted).

       See Herrera v. State, 306 Ga. App. 432, 435 (3) (702 SE2d 731) (2010); see also OCGA §§ 16-5-21 (a), 16-8-40 (a).

       OCGA § 16-5-20 (a).

       OCGA § 16-8-40 (a).

       See Herrera, supra.

       Id.

       Id. at 435-436 (3).

       See Division 1, supra.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       See Craig v. State, 276 Ga. App. 329-330 (1) (623 SE2d 518) (2005).

       See Jackson v. Virginia, supra.

       286 Ga. 722 (690 SE2d 858) (2010).

       Id. at 725 (3) (citations omitted); see Muckle v. State, 307 Ga. App. 634, 639 (2), n. 3 (705 SE2d 721) (2011). See also Curtis v. State, 275 Ga. 576, 577 (1) (571 SE2d 376) (2002) (“Since one may not be convicted legally of a crime which is included as a matter of law or fact in another crime for which the defendant stands convicted, the conviction and sentence for the included crime must be vacated by the appellate court, even if not enumerated as error.”) (citations omitted), overruled in part on other grounds, Williams v. State, 287 Ga. 192, 193-194 (695 SE2d 244) (2010).

       308 Ga. App. 303, 305-306 (2) (707 SE2d 538) (2011).

       263 Ga. App. 98, 99 (1) (587 SE2d 245) (2003).


author: Dillard, Judge.

text:
    A11A0186.
    CURTIS v. THE STATE.
    (714 SE2d 666)
   Dillard, Judge.

Following a jury trial, Korey Bernard Curtis was convicted of aggravated assault with intent to murder; kidnapping with bodily injury; aggravated battery; and hindering a person making an emergency telephone call. Curtis argues on appeal that the evidence was insufficient to support his convictions and that the trial court erred in denying his request to charge the jury on false imprisonment as a lesser-included offense of kidnapping. We find the evidence sufficient to sustain Curtis’s convictions, but are nonetheless constrained to hold that the trial court erred in failing to charge the jury on the lesser-included offense of false imprisonment. Because we cannot say that this error was harmless as a matter of law, we must reverse Curtis’s kidnapping conviction.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence shows that on the morning of March 7, 2008, the victim, Curtis’s girlfriend, was ill and had been directed by her supervisor to stay home from work. As she retreated to her bedroom to take some medicine, Curtis, apparently suspicious of her motives for remaining home, followed her into the bedroom and stated, “You’re going to die today, you don’t need your medicine.” Curtis then balled up his fist and punched the victim in the face. After the victim hit Curtis back, Curtis struck her on the head with a heavy metal ashtray, breaking the skin on her scalp. Curtis, who was wearing boots, then unleashed on the victim a brutally violent attack, during which he repeatedly punched and kicked her face, head, and body. Curtis also choked the victim while saying, “I should kill you.”

The victim eventually managed to break free from Curtis and ran out of the bedroom, through the house, and out the front door, screaming for someone to help her. Curtis caught the victim as she was attempting to escape, however, and dragged her back inside of the house by her hair. In the process of dragging her, Curtis scraped the skin off the victim’s knees.

Once inside, Curtis broke the wooden handle off of a broom and menacingly stated, “I’m fixing to torture your ass now.” He then proceeded to beat the victim about her face, head, and body with the splintered broomstick and the trunk of an artificial tree. Curtis also hit the victim in the face with metal picture frames taken from the living room table, cutting her with the frames’ glass as it shattered upon impact. At some point during the beating, the victim’s front tooth was knocked out.

The victim made her way back to the bedroom in search of a cell phone to call 911, but Curtis located the phone first and broke it in half. He then smashed the house phone with the broomstick. As they returned to the living room, the victim picked up the pictures of her children that had fallen from the picture frames and told them, “I love y’all because I’m fixing to die.” Curtis responded “[d]amn right,” as he continued his violent assault on the victim.

The victim, an epileptic, eventually feigned a seizure, prompting Curtis to cease the attack. Curtis moved her from the floor to the sofa, gave her a towel, and told her to shower. He then went outside of the house and flagged down a passing public works employee, who he asked to call 911 because “somebody beat his girlfriend.” After doing so, Curtis returned to the house, changed his bloody clothes, and began staging a break-in by opening one of the windows and pushing in the screen. He ordered the victim to tell the police that someone had broken into the house, and he threatened to kill both her and her children if she reported what actually transpired.

As they waited for the police, Curtis’s co-workers arrived to give him a ride to work. He went out to their vehicle and, although he originally told them about a break-in, he ultimately explained that he would not be going to work because he had “beat [the victim’s] ass” and was waiting on the police.

The police and paramedics finally arrived, but not before Curtis again struck the victim in the head with the artificial tree trunk. As the paramedics entered the house to treat the victim, Curtis met the police officers outside and reported that an intruder had assaulted his girlfriend.

One of the officers then entered the house and described the “horrific” sight of the victim as she lay on the couch struggling to breathe because her airway was full of blood. The officer observed blood and broken glass throughout the house. When he asked the victim who had injured her, she identified Curtis as her attacker.

Curtis was arrested and, as he was being booked into the jail, commented that he “wish[ed] he’d have went ahead and killed [the victim].” In an interview with the investigating detective, Curtis disparaged the victim’s character but maintained that someone else had perpetrated the attack. The detective later retrieved Curtis’s bloody clothes from the trash can at the house.

The victim was taken to the emergency room, where her entire body was x-rayed and she underwent surgery to repair her lips and mouth. Several months later, she received an artificial tooth implant to replace the tooth Curtis knocked out during his violent assault of her. The jury was shown pictures of her injuries and of the condition of the home following the incident.

Curtis was subsequently convicted of aggravated assault with intent to murder; kidnapping with bodily injury; aggravated battery; and hindering a person making an emergency telephone call. This appeal follows.

1. The evidence set forth supra was sufficient to sustain Curtis’s convictions of aggravated assault with intent to murder; kidnapping with bodily injury; aggravated battery; and hindering a person making an emergency telephone call.

Nevertheless, Curtis specifically challenges the evidence supporting his kidnapping conviction, asserting that the State failed to prove the essential element of asportation. We disagree.

Georgia law provides that a person commits the crime of kidnapping if he or she “abducts or steals away [i.e., asports] another person without lawful authority or warrant and holds such other person against his or her will.” At the time of Curtis’s crime in March 2008 and his subsequent conviction in August 2008, the law of this state permitted the necessary element of asportation to be proven by any evidence that the victim had been moved, however slight. In November 2008, however, slight evidence was deemed by our Supreme Court to be insufficient proof of asportation. In Garza v. State, the Supreme Court overruled prior case law and set forth a new four-part test to aid in the determination of whether the asportation element was met:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

The Court in Garza explained that its purpose in adopting the test was to assess

whether the movement in question is in the nature of the evil the kidnapping statute was originally intended to address —i.e., movement serving to substantially isolate the victim from protection or rescue — or merely a criminologically insignificant circumstance attendant to some other crime.

Here, we conclude that Curtis’s act of dragging the victim by her hair inside the house to begin his attack anew, after she temporarily managed to escape and was screaming for help, was sufficient evidence of asportation to support his conviction. Although the movement was arguably of minimal duration, this act was not an inherent part of the violent attack that the victim had just endured. Instead, and significantly, it allowed Curtis to reassert his control over the victim and to reinitiate his savage beating without interference, further isolating her from rescue and increasing her risk of harm. Consequently, the movement was not “merely a crirftinologi-cally insignificant circumstance attendant to some other crime,” but rather was representative of the “evil” that the kidnapping statute was designed to address.

2. Curtis further argues that the trial court erred in denying his request to charge the jury on false imprisonment as a lesser-included offense of kidnapping. We are constrained to agree.

Georgia law requires that a written request to charge a lesser-included offense be given “if there is any evidence that the defendant is guilty of the lesser included offense.” The crime of false imprisonment is committed “when, in violation of the personal liberty of another, [a defendant] arrests, confines, or detains such person without legal authority.” Significantly, the only difference between the crime of kidnapping and the crime of false imprisonment is the element of asportation.

Decided July 13, 2011.

Timothy L. Eidson, for appellant.

Denise D. Fachini, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.

Here, in light of the new standard set forth in Garza, there is some evidence from which the jury could have convicted Curtis on the lesser-included offense of false imprisonment. Moreover, we cannot say that the evidence of kidnapping in this case was so overwhelming so as to render the trial court’s failure to give the charge harmless. It follows that we must reverse Curtis’s kidnapping conviction. We note, however, that our holding in Division 1 that the evidence was sufficient to sustain Curtis’s conviction authorizes the State to retry Curtis without violating the Double Jeopardy Clause.

3. Our holding in Division 2 renders it unnecessary to reach Curtis’s remaining enumeration of error.

Judgment affirmed in part and reversed in part.

Smith, P. J., and Mikell, J., concur.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 16-5-21 (a) (1) (“A person commits the offense of aggravated assault when he or she assaults . . . [wlith intent to murder!.]”); see OCGA § 16-5-20 (a) (defining assault).

       OCGA § 16-5-40 (a) (“A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.”). Subsection (d) of the statute enhances a defendant’s sentence if the person kidnapped receives bodily injury.

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

       OCGA § 16-10-24.3 (“Any person who verbally or physically obstructs, prevents, or hinders another person with intent to cause or allow physical harm or injury to another person from making or completing a 9-1-1 telephone call or a call to any law enforcement agency to request police protection or to report the commission of a crime is guilty of a misdemeanorf. j”).

       OCGA § 16-5-40 (a).

         See generally Lyons v. State, 282 Ga. 588, 591 (1) (652 SE2d 525) (2007) (“The requirement of asportation to prove kidnapping is satisfied if there is movement of the victim, however slight that movement is.” (citation omitted)), overruled by Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008).

       284 Ga. at 701-02 (1).

        Garza, 284 Ga. at 702 (1) (citation and footnote omitted). Garza was decided after Curtis was convicted but while his case was pending appeal. Thus, according to the “pipeline” rule, Garza applies to this case. See, e.g., Hammond v. State, 289 Ga. 142, 143-44 (1) (710 SE2d 124) (2011) (holding that Garza applies retroactively); Taylor v. State, 262 Ga. 584, 586 (3) (422 SE2d 430) (1992). Following our Supreme Court’s decision in Garza, the Georgia General Assembly amended the kidnapping statute “to provide that slight movement is sufficient to prove kidnapping as long as the movement was not incidental to another offense,” and then further defined what actions would not be incidental to another offense. Wright v. State, 300 Ga. App. 32, 34 (1) n. 1 (684 SE2d 102) (2009) (citation and punctuation omitted); see Ga. L. 2009, p. 331, § 1. The amended statute applies only to crimes committed on or after the revised statute’s effective date, July 1, 2009. See OCGA § 1-3-4; Hammond, 289 Ga. at 143-44 (1). Because the crime in the case sub judice occurred in March 2008, the amended statute is not applicable.

        Garza, 284 Ga. at 702 (1) (citation and punctuation omitted).

        See, e.g., Henderson v. State, 285 Ga. 240, 245 (5) (675 SE2d 28) (2009) (finding evidence of asportation sufficient despite concluding that the movement of the victims was of minimal duration); Abernathy v. State, 299 Ga. App. 897, 900 (1) (685 SE2d 734) (2009) (“Not all of the elements under the [Garza] test must favor the State in order to prove asportation.” (citation and footnote omitted)).

        See generally Hall v. State, 308 Ga. App. 858, 862 (1) (709 SE2d 348) (2011) (actively preventing the victims from reaching rescue was movement that occurred independently of the aggravated assaults); Henderson, 285 Ga. at 245 (5) (moving victims into a different room after demanding at gunpoint that they empty their pockets was movement after and not incidental to the armed robbery); Williams v. State, 307 Ga. App. 675, 678 (1) (705 SE2d 906) (2011) (aggravated assault was completed when defendant pointed gun at victim and grabbed her, rendering his subsequent movement of her into the bathroom independent of that crime); Humphries v. State, 305 Ga. App. 69, 72 (1) (699 SE2d 62) (2010) (dragging victim down a hill was not an inherent part of the aggravated assault or other crimes that followed); Bryant v. State, 304 Ga. App. 755, 757 (1) (697 SE2d 860) (2010) (forcing victim into the house was done after the aggravated assault of sticking a gun into his neck had been completed); Dixon v. State, 303 Ga. App. 517, 519 (1) (693 SE2d 900) (2010) (forcing victim into hotel room occurred before aggravated assault and was not inherent part of that offense).

        See generally Hall, 308 Ga. App. at 862 (1) (blocking the door from would-be rescuers substantially isolated the victims and heightened their risk of harm); Williams, 307 Ga. App. at 678 (1) (forcing victim into the bathroom created additional danger to her by enhancing defendant’s control over her); Humphries, 305 Ga. App. at 72 (1) (movement down hill enhanced the danger to the victim and reduced the possibility of her obtaining help from others); Bryant, 304 Ga. App. at 757 (1) (moving victim from outside to inside house placed him in additional danger by isolating him from rescue); Dixon, 303 Ga. App. at 519 (1) (moving victim into defendant’s hotel room enhanced his control over her and isolated her from contact with the other guests).

        Garza, 284 Ga. at 702 (1) (citation and punctuation omitted).

        Edwards v. State, 264 Ga. 131, 132-33 (442 SE2d 444) (1994) (citation and punctuation omitted) (further holding that, “[w]here a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense”); Stovall v. State, 216 Ga. App. 138, 141 (5) (453 SE2d 110) (1995).

       OCGA § 16-5-41 (a).

        See Ellis v. State, 181 Ga. App. 630, 634 (5) (353 SE2d 822) (1987).

       We note that this case was tried consistent with the common and settled understanding of asportation that prevailed at the time of trial and, under the law as it then existed, our conclusion with respect to the trial court’s failure to give the charge may have differed. See Division 1, supra.

        Compare generally Braley v. State, 276 Ga. 47, 53 (30) (572 SE2d 583) (2002) (any error in failing to give charge on the lesser-included offense was rendered harmless by overwhelming evidence of defendant’s guilt on the crime charged); Edwards, 264 Ga. at 133 (same); Stephens v. State, 232 Ga. App. 738, 740 (4) (503 SE2d 643) (1998) (same); Mitchell v. State, 221 Ga. App. 183, 184 (3) (470 SE2d 771) (1996) (same).

        See, e.g., Hall, 308 Ga. App. at 862 (2); see also Gibson v. State, 265 Ga. App. 325, 328 (593 SE2d 861) (2004); Shaw v. State, 238 Ga. App. 757, 759 (1) (519 SE2d 486) (1999).

        See generally Hall, 308 Ga. App. at 862 (2); In the Interest of B. R., 289 Ga. App. 6, 9 (2) (656 SE2d 172) (2007); In the Interest of D. D., 287 Ga. App. 512, 515 (2) (b) (651 SE2d 817) (2007); see also U. S. Const. amend. V


text:
    A11A0190.
    KOLDEWEY v. THE STATE.
    (714 SE2d 371)
   Doyle, Judge.

Matthew B. Koldewey appeals from a four-count conviction for making terroristic threats, contending that the trial court erred by (1) denying his motion for a directed verdict because the evidence was insufficient to support a finding of guilt, and (2) shifting the burden of proof by incorrectly charging the jury on involuntary intoxication. For the reasons that follow, we affirm in part and reverse in part.

Construed in favor of the verdict, the evidence shows that in January 2008, Koldewey, who was on probation and had been participating in a drug court rehabilitation program, told his mother that he had been having violent thoughts. His mother took him to Gateway Behavioral Health Services, a state-run facility that treats clients for mental health disorders and drug and alcohol addiction and where Koldewey had been evaluated previously. The mother explained to the intake nurse, Jo Miller, that Koldewey had been having suicidal and homicidal thoughts. Miller arranged for Julie Spores, a registered nurse, to conduct the intake interview. The intake interview was a diagnostic assessment done with walk-in patients such as Koldewey for the purpose of evaluating appropriate treatment.

During the intake interview with Spores, Koldewey grew angry and stated that he was going to choke Judge A. W (wringing his hands), and then he said, “no ... he had a deer rifle with Judge [A. W.’s] name on it, and he was gonna kill her.” Spores then approached Dale Tushman, a licensed clinical social worker acting as backup officer for the day, and asked her to sit in on the interview. When Tushman invited Koldewey to talk to her, he repeated that he “had strong hands” and was going to choke Judge A. W, and that “I have a rifle with a scope, and I can get in the bushes beside [Judge A. W.’s] house.” Koldewey further stated that he “was going to set fire to Alpha House [a residential therapeutic community to which he was assigned by the drug court], and I’m going to burn down Alpha house and take out all the 40 men in it. . . . And I’m going to slit the throat of [C. W.],” an Alpha House counselor. Tushman explained that she needed to take Koldewey to Gateway’s crisis unit, a secure unit designed for the protection of homicidal and suicidal clients. Koldewey went with her to the crisis unit, where Koldewey was given oral medication, which he took with some hesitation, and was prepared for transfer to a state regional mental health hospital.

While in the crisis unit, Koldewey asked to use the telephone and called C. W, saying, “hey [C. W], this is Matthew Koldewey. I’m on my way to Georgia Regional, but when I get out, whatever happens, happens.” Koldewey then threatened to “beat up somebody” if police, instead of his mother, took him to the regional mental health hospital. Koldewey remained hostile, was further medicated, and eventually was transported by police to the hospital.

Koldewey was accused in a six-count indictment of making terroristic threats against Judge A. W. generally (Counts 1 and 2) and as involving a judicial proceeding (Counts 5 and 6), against C. W. (Count 3), and against Alpha House (Count 4). Following a jury trial, Koldewey was found guilty on all counts and, due to the merger of Counts 1 and 2, sentenced only on Counts 3 through 6 to a probated term of 15 years (with credit for 18 months already served in confinement). He now appeals.

1. Koldewey first challenges the sufficiency of the evidence to support the guilty verdict. When an appellate court reviews the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

To prove the crime of terroristic threats as alleged in Counts 1 through 4, the State’s burden was to show that Koldewey “threaten [ed] to commit any crime of violence ... or to burn or damage property with the purpose of terrorizing another or of causing the evacuation of a building ... or in reckless disregard of the risk of causing such terror or inconvenience.”

The crime of making terroristic threats focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize. That the message was not directly communicated to the victim does not alone preclude a conviction where the threat is submitted in such a way as to support the inference that the speaker intended or expected it to be conveyed to the victim.

On appeal, Koldewey contends that the evidence failed to show that he intended to terrorize the victims because his threatening statements were made for diagnostic purposes to a licensed nurse and mental health social worker at a behavioral health center. With respect to the threats made against Judge A. W as alleged in Counts 1 and 2 of the indictment, we agree. There is no evidence that Koldewey made the threatening statements to anyone other than the mental health staff during an intake interview done for diagnostic purposes. He was taken to the center specifically because of his violent thoughts, which he had generally complained of to his parents, but he had avoided articulating any threat until speaking to staff. The intake nurse testified that during the intake interview, Koldewey stated that he did not want to hurt himself or others. While it is true that intent to terrorize need not be proven by direct evidence and may be inferred from the circumstances, the circumstances here demand a finding that the purpose of Koldewey’s threats against Judge A. W. was for diagnosis and treatment at a mental health facility and not for the purpose of terrorizing Judge A. W

Similarly, with respect to Counts 5 and 6, the State’s burden was to show that Koldewey made the threats against Judge A. W “with the intent to hinder, delay, prevent, or dissuade [her] from” attending a judicial proceeding or assisting in a prosecution or probation revocation, or participating in certain similar law enforcement proceedings. For the same reasons outlined above, in light of the uncontroverted evidence showing that Koldewey’s purpose in communicating the threat was to seek mental health evaluation and treatment, we conclude that the evidence failed to support the findings of guilt as to Counts 5 and 6.

With respect to the threat made against C. W. and Alpha House in Counts 3 and 4, our conclusion is different because Koldewey telephoned C. W, the director of Alpha House, and told him that after his release from the mental health hospital, “whatever happens, happens.” This language, coupled with Koldewey’s earlier specific articulation of how he would kill C. W., burn down Alpha House, and “take out” the men in it, are circumstances sufficient to support an inference that the telephone call was made with the intent to terrorize C. W. and Alpha House, or at least in reckless disregard of the risk of causing such terror.

In light of these conclusions, the trial court did not err by denying Koldewey’s motion for a directed verdict as to the threats to C. W (Count 3) and Alpha House (Count 4). As to the remaining counts (Counts 1, 2, 5 and 6), we reverse those convictions based on insufficient evidence.

2. We now address the remaining enumerated error pertinent to Counts 3 and 4.

At the conclusion of the evidence, the trial court gave the jury the following instruction, over Koldewey’s timely objections:

Now, ladies and gentlemen, a person shall not be found guilty of a crime when, at the time of the conduct constituting the crime, the person did not have sufficient mental capacity to distinguish between right and wrong in relation to the criminal act because of involuntary intoxication. Involuntary intoxication means intoxication caused by a consumption of a substance through excusable ignorance. A defendant asserting this defense bears the burden of proving it by a preponderance of the evidence that he was mentally not responsible at the time of the crime. If the defendant meets this burden, the State would then have the burden to disprove or negate that defense.

Koldewey, relying on the 1976 case of State v. Moore, argues that giving the emphasized portion of this instruction improperly shifted the burden of proof to him. In Moore, the defendant argued that he was coerced into aiding an accomplice to armed robbery. At trial, the court instructed the jury that the burden of persuasion was on the defendant to prove his affirmative defense of coercion. On appeal, the Supreme Court of Georgia noted that “ [historically, the defendant carried this burden in asserting an affirmative defense,” and it found no error in the Moore case. Nevertheless, due to the law in the area having become unsettled and lacking uniformity, the Supreme Court held that, “henceforth charges which place any burden of persuasion upon the defendant in criminal cases shall not be given and such charges will be deemed erroneous and subject to reversal, absent harmless error and invited error.” This holding would seemingly end our inquiry and demand a reversal. However, the Supreme Court of Georgia has also approved trial courts’ charges on insanity, a virtually identical affirmative defense, that explicitly place the burden of proof as to that issue on the defendant.

In doing so, the Supreme Court has noted that in Georgia, every person is rebuttably presumed to be “of sound mind and discretion.” Therefore, “criminal trials begin with the rebuttable presumption that the defendant is sane and this presumption is evidence.” Thus, unless there is a prior adjudication of insanity that gives rise to a presumption of insanity, it is proper for the trial court to place on a defendant raising an insanity defense “the burden of showing, by [a] preponderance of the evidence, that he was not mentally responsible at the time of the alleged crime.”

Like an insanity defense, the involuntary intoxication defense asserts that the defendant “did not have sufficient mental capacity to distinguish between right and wrong.” OCGA § 16-3-4 defines the involuntary intoxication defense as follows:

(a) A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of involuntary intoxication, did not have sufficient mental capacity to distinguish between right and wrong[ ] in relation to such act.
(b) Involuntary intoxication means intoxication caused by:
(1) Consumption of a substance through excusable ignorance;[] or
(2) The coercion, fraud, artifice, or contrivance of another person. . . .

And Georgia cases have held that “a defendant asserting involuntary intoxication bears the burden of showing by a preponderance of the evidence [ ] that he was not mentally responsible at the time of the alleged crime.” Therefore, it is a correct statement of law that when raising a defense that one lacked sufficient mental capacity to distinguish between right and wrong in relation to such act, the defendant bears the burden of proof.

Decided July 13, 2011

Robert L. Crowe, for appellant.

Jacquelyn L. Johnson, District Attorney, David A. Peterson, Assistant District Attorney, for appellee.

Despite any apparent conflict with the bright-line rule in State v. Moore, the Supreme Court of Georgia has approved of jury instructions placing the burden of proof on the defendant to prove that he lacked the capacity to distinguish between right and wrong. We decline to depart from this line of reasoning here. And thus, we discern no reversible error.

3. Koldewey’s remaining enumerations Eire moot. Because we reverse his conviction as to Counts 1, 2, 5, and 6 based on a failure of the evidence, double jeopardy bars retrial on those Counts. The convictions on Counts 3 and 4 are affirmed.

Judgment affirmed in part and reversed in part.

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

       He was found guilty of six counts, two of which merged.

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

       Judge A. W. was Koldewey’s sentencing judge during his prior appearance in drug court.

       See OCGA § 16-11-37 (a).

       See OCGA § 16-10-32 (b).

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       (Emphasis supplied.) OCGA § 16-11-37 (a).

       (Punctuation omitted; emphasis supplied and omitted.) Stephens v. State, 271 Ga. App. 509, 510 (610 SE2d 143) (2005).

       See Jordan v. State, 214 Ga. App. 346, 347 (447 SE2d 341) (1994) (“Direct evidence that the threats were made for the purpose of terrorizing another is not necessary if the circumstances surrounding the threats are sufficient for a jury to find the threats were made for such a purpose.”) (punctuation omitted).

       See Sidner v. State, 304 Ga. App. 373, 375 (1) (696 SE2d 398) (2010) (threats made for purpose of securing help from police did not constitute offense of terroristic threats); Jordan, 214 Ga. App. at 347 (threats against supervisor made only to human resources staff for purposes of seeking a transfer were not made for purpose of terrorizing supervisor). Compare Brown v. State, 298 Ga. App. 545, 547-549 (680 SE2d 579) (2009) (defendant’s threats against his wife and her mother were communicated to his lawyer with the intent that the lawyer communicate them to the victims in light of defendant’s legal knowledge and inquiries as to the attorney-client privilege).

       (Emphasis supplied.) OCGA § 16-10-32 (b).

       See Reeves v. State, 288 Ga. App. 544, 545 (654 SE2d 449) (2007) (a threat of future violence, even over the telephone, against an absent third party is sufficient to support a conviction of terroristic threats). See also In the Interest of K. J., 294 Ga. App. 155, 156 (668 SE2d 775) (2008) (“direct evidence that the threats were made for the purpose of terrorizing another is not necessary if the circumstances surrounding the threats are sufficient for a trier of fact to find the threats were made for such a purpose”) (punctuation omitted); Stephens, 271 Ga. App. at 510 (“The crime of making terroristic threats focuses solely on the conduct of the accused. . . .”).

       At trial, Koldewey presented expert testimony supporting a defense that due to his involuntary intoxication from a toxic combination of drugs that he had been prescribed by a treating physician, he lacked sufficient mental capacity to distinguish between right and wrong in relation to his conduct.

       237 Ga. 269 (227 SE2d 241) (1976).

       Id. at 269-270 (1).

       Id. at 270 (1).

       A comparison of the two statutes shows that the only distinction is the cause of the lack of mental capacity. Compare OCGA § 16-3-2 with OCGA § 16-3-4 (a).

       See, e.g., Durrence v. State, 287 Ga. 213, 218 (2) (b) (695 SE2d 227) (2010) (stating, in the context of analyzing a claim of ineffective assistance of counsel, “[t]he trial court [properly] instructed the jury that appellant had entered a plea of not guilty by reason of insanity and that he bore the burden of proving this defense by a preponderance of the evidence”); Hicks v. State, 256 Ga. 715, 727 (18) (352 SE2d 762) (1987) (holding that the trial court did not err by charging the jury on insanity and placing the burden of proof as to that issue on the defendant). See also Brannan v. State, 275 Ga. 70, 83 (18) (561 SE2d 414) (2002) (jury instruction on the rebuttable presumption of sanity “is not unconstitutionally burden-shifting”); Longshore v. State, 242 Ga. 689, 691 (1) (251 SE2d 280) (1978) (“To overcome [the] presumption [of sanity] a defendant must show by the preponderance of the evidence that he was not criminally responsible at the time of the commission of the act.”); May v. State, 287 Ga. App. 407, 409 (3) (651 SE2d 510) (2007) (approving recitation of pattern charge on presumption of sanity). Likewise, the pattern jury charge on the insanity defense includes language to the same effect: “The defendant has the burden of proving insanity by a preponderance of evidence.” Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 3.80.20 (4th ed. 2007).

       OCGA § 16-2-3.

       Durrence, 287 Ga. at 215 (1) (a).

       (Citations omitted.) Durham v. State, 239 Ga. 697, 698 (1) (238 SE2d 334) (1977). The constitutional validity of placing upon the defendant the burden of proving his insanity has been recognized by the United States Supreme Court. See Patterson v. New York, 432 U. S. 197, 210 (III) (97 SC 2319, 53 LE2d 281) (1977) (“[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the non-existence of all affirmative defenses has never been constitutionally required.”). It has also been recognized by Georgia courts. See Durrence, 287 Ga. at 216 (1) (a); Boswell v. State, 275 Ga. 689, 691 (2) (572 SE2d 565) (2002); Lawrence v. State, 265 Ga. 310, 312-313 (2) (454 SE2d 446) (1995); Brown v. State, 250 Ga. 66, 70 (2) (c) (295 SE2d 727) (1982).

       OCGA § 16-3-4 (a). Compare OCGA § 16-3-2 (defining the insanity defense as follows: “A person shall not be found guilty of a crime if, at the time of the act . . . constituting the crime, the person did not have mental capacity to distinguish between right and wrong in relation to such act”) (emphasis supplied).

       (Emphasis supplied.)

       “ ‘Excusable ignorance’ may include reliance upon a physician’s prescription, at least where the defendant was ingesting the prescription in the quantity and manner directed by the physician.” Coats v. State, 303 Ga. App. 818, 823, n. 3 (695 SE2d 285) (2010).

       (Punctuation omitted.) Stewart v. State, 291 Ga. App. 846, 847 (663 SE2d 278) (2008). See Rauschenberg v. State, 161 Ga. App. 331, 332 (1) (291 SE2d 58) (1982).

       See Stewart, 291 Ga. App. at 847.

       See Durrence, 287 Ga. at 218 (2) (b); Longshore, 242 Ga. at 691 (1).

       We note that unlike the pattern jury charge on insanity, the pattern jury charge on voluntary intoxication merely tracks the language of the Code section and omits language referring to a burden of proof.

       See generally State v. Johnson, 280 Ga. 511, 513 (630 SE2d 377) (2006) (“A requested charge should be delivered if it is a correct statement of law that is pertinent and material to an issue in the case and not substantially covered by the charge actually given.”) (punctuation omitted).

       We note that Koldewey did enumerate as error the admission of testimony from Van Merrell, a licensed practical nurse, about his mental health treatment. He argues that this violated OCGA § 24-9-21, which protects, inter alia, communications to certain specified mental health professionals (not including licensed practical nurses). However, that testimony went to Koldewey’s alleged threat against Judge Á. W. and it was essentially cumulative of other testimony from mental health workers not challenged on appeal. Therefore, we need not address that enumeration.

       See Jones v. State, 272 Ga. 900, 904 (4) (537 SE2d 80) (2000) (when a conviction is reversed due to insufficient evidence to support the verdict, the defendant cannot be retried without violating the Double Jeopardy Clause of the United States Constitution).