author: Boggs, Judge.

text:
    A13A0195.
    DEAN v. THE STATE.
    (742 SE2d 758)
   Boggs, Judge.

Anthony Scott Dean appeals from his conviction for two counts of child molestation. He contends that the trial court erred by allowing the introduction of similar transaction evidence and by denying his request to impeach the victim with a specific prior bad act. For the reasons explained below, we affirm.

1. Dean contends that the trial court erred by admitting evidence of similar transactions. Under Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), the State must show that (1) it “seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility”; (2) “there is sufficient evidence to establish that the accused committed the independent offense or act”; and (3) “there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” (Citation, punctuation and footnotes omitted.) Id. at 642 (2) (b). “When considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question.” (Citations, punctuation and footnote omitted.) Ware v. State, 297 Ga. App. 400, 402 (2) (677 SE2d 423) (2009). And

[w]hen reviewing the trial court’s factual findings regarding whether the [S]tate satisfied the three-prong test mandated by Williams, we apply the “clearly erroneous” standard. The decision to admit similar transaction evidence which satisfies the three-prong test is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion.

(Citations and punctuation omitted.) Reed v. State, 291 Ga. 10, 14 (3) (727 SE2d 112) (2012).

In this case, the record shows that the victim and her four siblings were adopted from Guatemala by Dean and his wife when the victim was 13 years old. The victim testified that when she was fifteen years old, Dean came into her room one night when she and her younger sisters were sleeping, lay down beside her, and touched her between her legs and on her genitalia. According to the victim, this only happened one time. On another occasion, Dean came into the bathroom adjacent to the victim’s closet wearing nothing but a towel. The victim was in her closet and could see Dean’s penis because the towel was open, and he told her that he wanted to have sex with her.

Over Dean’s objection, the State presented evidence of similar transactions involving the victim’s older sister. A woman who attended church with the Deans testified that she was fluent in Spanish and spent time with the victim and her sisters after their adoption. She testified that in a visit with the girls at her home, the victim’s older sister told her that Dean was touching her inappropriately during the night. The victim testified that Dean treated her older sister “[l]ike she was his girlfriend or his wife.” She saw Dean kiss her sister on the mouth like a husband would kiss his wife, not as a father would kiss his daughter. The victim’s younger sister testified that the victim’s older sister would sometimes sleep with her in her bed instead of her own room. She saw Dean come into the room late at night after everyone else was asleep and get into the bed beside her older sister and kiss her on the mouth like a husband kisses his wife.

The older sister testified and denied any inappropriate conduct by Dean. She claimed that she told a sheriff in a telephone call that Dean “tried” to have sex with her only because she was tired of receiving repeated phone calls from authorities and wanted to be left alone. Dean also denied all allegations of molestation against him.

Over Dean’s objection, the State presented evidence of similar transactions involving 12-year-old twins that occurred in June 1984 when Dean was 14 years old. During an overnight birthday party at their home, one of the twins awoke late at night to find her hands behind her back and Dean manipulating her hands to massage his genitals. When she confronted Dean, he snapped his underpants back up and told her he must have fallen off the couch in his sleep. The other twin sister testified that she awoke the same night to find Dean beside her with his hands on her breasts. He took her hand and rubbed it around on his penis until she felt a liquid land on her. The sisters denied consenting to Dean’s conduct that evening. The twins’ brother later told their father what Dean had done, and their father had a discussion with Dean’s parents. The State presented no documentary evidence of Dean’s conduct that evening.

(a) Dean claims that the trial court erred by allowing evidence of the similar transaction involving the victim’s older sister. He asserts that it should not have been admitted because the State presented insufficient evidence that he committed the alleged acts because both he and the older sister denied the alleged conduct at trial. We find no merit in this assertion.

“Absolute proof is not required that a defendant committed the offense in a similar transaction.” (Citations and punctuation omitted.) Gunter v. State, 215 Ga. App. 517, 518 (1) (451 SE2d 108) (1994). Instead, the State is required to prove that Dean committed the prior act by a preponderance of the evidence. Freeman v. State, 268 Ga. 185, 187-188 (4) (486 SE2d 348) (1997); Jennings v. State, 277 Ga. App. 159, 162 (3) (626 SE2d 155) (2006). Aconviction for the prior act is not required, and it may be proven by circumstantial evidence. Lloyd v. State, 259 Ga. App. 636, 640 (2), n. 12 (577 SE2d 854) (2003) (conviction not required); Druitt v. State, 225 Ga. App. 150, 151 (1), (2) (483 SE2d 117) (1997) (circumstantial evidence will suffice). In this case, the State met its burden by presenting two witnesses who testified that they saw Dean commit similar acts with the victim’s older sister.

(b) Dean contends that the trial court erred by admitting evidence of his conduct with the twins in 1984 because it was too remote in time and took place when he was a minor only two years older than the twins. Dean correctly asserts that when a similar transaction is remote in time,

additional considerations are required. As a general rule, the lapse of time generally goes to the weight and credibility of the evidence, not to its admissibility. Nonetheless, where similar transactions are particularly remote because they were committed decades in the past, the passage of time is one of the more important factors to weigh in considering the admissibility of the evidence in question, although it is not wholly determinative. This factor takes on heightened significance when the similar transaction evidence is comprised of alleged acts for which there is no prior record of their occurrence. Although a similar transaction may have been committed many years in the past, any prejudice from its age may nonetheless be outweighed by its probative value, depending on the particular facts of each case and the purpose for which the similar transaction is being offered.

(Citations and punctuation omitted.) Pareja v. State, 286 Ga. 117, 119-120 (686 SE2d 232) (2009). Additionally, “a defendant’s youth at the time of the similar transaction should be considered when deciding if the testimony should be admitted to show lustful disposition and inclination, i.e., bent of mind.” (Citation and punctuation omitted.) Maynard v. State, 282 Ga. App. 598, 604 (3) (639 SE2d 389) (2006). But “[t]his rule is most liberally extended in cases involving sexual offenses because such evidence tends to establish that a defendant has such bent of mind as to initiate or continue a sexual encounter without a person’s consent.” (Citations and punctuation omitted.) Pareja, supra, 286 Ga. at 121. And “[a]s a general rule, the sexual molestation of young children or teenagers, regardless of the type of act, is sufficiently similar to be admissible as similar transaction evidence.” (Citations, punctuation and footnote omitted.) Jackson v. State, 309 Ga. App. 450, 451 (1) (710 SE2d 649) (2011).

Based upon all of these guiding principles, we conclude that the trial court did not err by admitting evidence of Dean’s similar conduct in sexually abusing minors in the middle of the night while the household was asleep. See Pareja, supra, 286 Ga. at 121 (allegation of child molestation 26 years in past admissible); Pendley v. State, 308 Ga. App. 821, 824 (2) (709 SE2d 18) (2011) (similar act of child molestation 30 years in past admissible). Compare Tyson v. State, 232 Ga. App. 732, 732-733 (1) (503 SE2d 640) (1998) (similar acts that were between 27 and 40 years before offenses at issue held inadmissible). Although there was no prior record of the events, the testimony of each twin corroborated that of the other. And while Dean was 14 years old at the time, he would have been old enough to be held criminally responsible for his conduct in this State. See OCGA § 16-3-1 (age 13); Ledford v. State, 313 Ga. App. 389, 394-395 (721 SE2d 585) (2011) (Judge Adams’ dissent observed that “it may be presumed that a child of 13 years or older is accountable for his actions” in a case in which the majority concluded that similar transaction committed when defendant was 11 years old could be admitted); Wright v. State, 314 Ga. App. 353, 355-356 (2) (723 SE2d 737) (2012) (prior sexual offense committed by defendant when he was 14 years old held admissible). Compare Maynard, supra, 282 Ga. App. at 602 (3) (sexual misconduct committed by defendant 20 years earlier at age 12 held inadmissible).

2. Dean contends that the trial court erred by ruling he could not impeach the victim with evidence that she had previously made a false accusation of murder against her biological father. The alleged prior false allegation was made by the victim when she was eight years old and living in Guatemala. The only evidence offered by Dean to prove that the allegation was made and that it was false was through the testimony of the victim’s older sister, who was nine or ten years old at the time of the victim’s alleged false allegation. The trial court excluded the evidence based upon its conclusion that it was a specific bad act that was not relevant to the charges against Dean.

“[A] victim’s character is rarely relevant for any purpose in a criminal trial.” (Citations omitted.) Allen v. State, 275 Ga. 64, 68 (3) (561 SE2d 397) (2002). Generally, avictim may not be impeached with instances of specific misconduct or prior bad acts. Id. See also Wise v. State, 321 Ga. App. 39, 42 (3) (740 SE2d 850) (2013). Instead, under the law in effect at the time this case was tried, a victim could generally be impeached “by disproving the facts testified to by him,” former OCGA § 24-9-82, “by contradictory statements previously made by him as to matters relevant to his testimony and to the case,” former OCGA § 24-9-83, “by offering evidence of the witness’s bad character in the form of reputation,” former OCGA § 24-9-84, and by certain prior criminal convictions, former OCGA § 24-9-84.1.

Decided May 7, 2013.

James P. Theodocion, for appellant.

R. Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

One exception to the general rule against impeachment with instances of specific misconduct or prior bad acts is that a victim’s prior false allegation of sexual misconduct is admissible in a sex offense case. See Smith v. State, 259 Ga. 135, 137 (1) (377 SE2d 158) (1989). The Supreme Court noted in Smith that “the evidentiary rule preventing evidence of specific acts of untruthfulness must yield to the defendant’s right of confrontation and right to present a full defense” in sex offense cases in which the victim has made prior false allegations of sexual misconduct. Id. This limited exception, however, applies only to previous false allegations of sexual misconduct, not false allegations generally. Id. Cf. Allen, supra, 275 Ga. at 68 (3) (affirming trial court’s prohibition of cross-examination into witness’s false report of kidnapping in felony murder case). Because the purported false allegation in this case does not fall within the scope of this exception, we affirm the trial court’s decision to exclude it.

Judgment affirmed.

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

       Because this case was tried in 2011, we are not analyzing the trial court’s evidentiary ruling under Georgia’s new Evidence Code, effective January 1, 2013. See Slaughter v. State, 292 Ga. 573 (2), n. 3 (740 SE2d 119) (2013).

       Specific prior acts of violence by a victim may also be admissible in cases in which the defendant claims justification. See State v. Hodges, 291 Ga. 413, 415 (728 SE2d 582) (2012).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A13A0522.
    TAYLOR v. THE STATE.
    (738 SE2d 347)
   DOYLE, Presiding Judge.

Harry Brett Taylor filed a direct appeal from the trial court’s denial of his pre-trial plea in bar based upon an alleged violation of his constitutional right to a speedy trial. The Supreme Court of Georgia has ruled, however, that such a claim is not directly appealable and that a defendant must follow the interlocutory appeal procedures of OCGA § 5-6-34 (b). Taylor’s appeal is therefore dismissed.

Appeal dismissed.

McFadden and Boggs, JJ., concur.

Decided February 14, 2013

Reconsideration denied May 10, 2013

Chandler, Britt, Jay & Beck, Walter M. Britt, for appellant.

Daniel J. Porter, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.

       See Sosniak v. State, 292 Ga. 35, 40 (2) (734 SE2d 362) (2012); Stevens v. State, 292 Ga. 218 (734 SE2d 743) (2012).

       See id. See also Morris v. State, 319 Ga. App. 198 (734 SE2d 926) (2012).


author: Miller, Judge.

text:
    A13A0624.
    FUNK v. THE STATE.
    (742 SE2d 766)
   Miller, Judge.

Following his third indictment for the same charges, Adam Funk appeals from the trial court’s denial of his plea in abatement, contending that the trial court’s approval of two nolle prosequis by the State of his two previous indictments precluded subsequent prosecution for the same offenses pursuant to OCGA § 17-7-53.1. We disagree.

OCGA § 17-7-53.1 provides:

If, upon the return of two “true bills” of indictment or presentments by a grand jury on the same offense, charge, or allegation, the indictments or presentments are quashed for the second time, whether by ruling on a motion, demurrer, special plea or exception, or other pleading of the defendant or by the court’s own motion, such actions shall be a bar to any future prosecution of such defendant for the offense, charge, or allegation.

The following facts are not disputed. On November 15, 2011, the Decatur County grand jury returned Indictment No. 11CR00217 charging Funk with forgery in the first degree and criminal attempt to fraudulently obtain a controlled substance. Funk filed his demurrer on November 22, and the State filed its nolle prosequi prior to the trial court’s ruling on the demurrer. The trial court approved the nolle prosequi on December 5, 2011. On January 31, 2012, the grand jury returned Indictment No. 12CR0014 recharging these offenses. On March 15, Funk filed his demurrer to this indictment, which had not yet been ruled upon when the State filed its nolle prosequi, approved by the trial court on May 2, 2012. On July 21, 2012, the grand jury returned Indictment No. 12CR00189 recharging these offenses. Funk then filed his plea in abatement.

Decided May 10, 2013.

Ernie M. Sheffield, for appellant.

Joseph K. Mulholland, District Attorney, Heather H. Lanier, Assistant District Attorney, for appellee.

This case is factually similar to and controlled by Layman v. State, 280 Ga. 794 (631 SE2d 107) (2006). There, as here, the trial court approved entry of nolle prosequi on two indictments, to each of which Layman had demurred. Id. Layman argued that the State should not be allowed to use entry of nolle prosequi to avoid application of OCGA § 17-7-53.1. Id. at 795. As noted by the Supreme Court, OCGA § 17-8-3 provides that before a case is submitted to a jury, “the prosecuting attorney may enter a nolle prosequi with the consent of the court.” Id. at 795, n. 2. The Supreme Court concluded that the fact that Layman’s motion to quash was pending at the time of the entry of the nolle prosequi did not change its analysis. Layman, supra, 280 Ga. at 795. “As this court stated in State v. Lejeune, [276 Ga. 179, 184 (4) (576 SE2d 888) (2003),] the trial court has discretion to order the entry of a nolle prosequi, instead of quashing the indictment, to avoid application of OCGA § 17-7-53.1.” (Citation and punctuation omitted.) Layman, supra, 280 Ga. at 795. See also Shane v. State, 320 Ga. App. 1 (739 SE2d 9) (2013).

Therefore, there was no error in the trial court’s denial of Funk’s plea in abatement.

Judgment affirmed.

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


text:
    A13A0702.
    ST. PAUL FIRE AND MARINE INSURANCE COMPANY v. HUGHES.
    (742 SE2d 762)
   Miller, Judge.

St. Paul Fire and Marine Insurance Company appeals the trial court’s order granting partial summary judgment to Wallace Hughes in his suit to recover for the injuries he sustained in an accident that occurred while he was driving a vehicle that was covered under a St. Paul excess and umbrella insurance policy (hereinafter the “Policy”). St. Paul contends that Indiana law, rather than Georgia law, applies to the Policy, and as a matter of Indiana law, the Policy does not provide uninsured/underinsured motorist (“UM”) benefits. For the reasons set forth below, we affirm.

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

(Citation omitted.) O’Neal v. State Farm Mut. Auto. Ins. Co., 243 Ga. App. 756 (533 SE2d 781) (2000).

So viewed, the evidence shows that St. Paul issued a one-year $8 million Commercial Umbrella Liability Policy to Hughes’s employer, Townsend Tree Service Company, Inc., on July 1, 2005. The Policy was issued and delivered to Townsend in Indiana, and the Policy specifically excluded UM coverage. St. Paul is licensed in Georgia, however, and there was no written rejection of UM benefits for the Policy.

On August 18, 2005, Hughes, who lived in Enigma, Georgia, was involved in a two-vehicle accident in Alma, Georgia. Hughes was driving a Ford F-150 truck owned by Townsend. The truck was principally used and garaged in Georgia but was registered in the state of Indiana. Hughes filed suit against the other driver involved in the accident, and subsequently settled with the other driver’s insurance carrier for its $25,000 policy limits.

Hughes then sought UM benefits under an Ace American Insurance Company motor vehicle policy issued to Townsend. The trial court, however, granted summary judgment to Ace, finding that Ace’s policy did not provide UM coverage because it was a renewal policy and Townsend had rej ected UM coverage in the previous year’s policy. Hughes then sought UM benefits under the St. Paul Policy.

Hughes moved for partial summary judgment on his claim that the Policy provides UM coverage. St. Paul filed a cross-motion for summary judgment, contending that Indiana law applied, and Indiana law did not require UM coverage at the time the Policy was issued. The trial court granted Hughes’s motion for partial summary judgment, and denied St. Paul’s cross-motion, finding that St. Paul is licensed in Georgia, and the truck Hughes was driving at the time of the accident was principally garaged and used in Georgia. The trial court further found that OCGA § 33-7-11 applied, and in the absence of a written waiver of UM benefits, St. Paul must provide up to $8 million in UM benefits to Hughes. This appeal ensued.

In its sole enumeration of error, St. Paul contends that the trial court erred in granting Hughes’s motion for partial summary judgment and in denying St. Paul’s cross-motion for summary judgment because Indiana law, rather than Georgia law, applies to the Policy. We disagree.

At the time of Hughes’s accident, Georgia’s Uninsured Motorist Statute pertinently provided:

No automobile liability policy or motor vehicle liability policy shall be issued or delivered in this state to the owner of such vehicle or shall be issued or delivered by any insurer licensed in this state upon any motor vehicle then principally garaged or principally used in this state unless it contains an endorsement or provisions undertaking to pay the insured all sums which said insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits exclusive of interests and costs which at the option of the insured shall be:
(A) Not less than $25,000.00 because of bodily injury to or death of one person in any one accident, and, subject to such limit for one person, $50,000.00 because of bodily injury to or death of two or more persons in any one accident, and $25,000.00 because of injury to or destruction of property; or
(B) Equal to the limits of liability because of bodily injury to or death of one person in any one accident and of two or more persons in any one accident, and because of injury to or destruction of property of the insured which is contained in the insured’s personal coverage in the automobile liability policy or motor vehicle liability policy issued by the insurer to the insured if those limits of liability exceed the limits of liability set forth in subparagraph (A) of this paragraph of this Code section. In any event, the insured may affirmatively choose uninsured motorist limits in an amount less than the limits of liability.

(Emphasis supplied.) OCGA § 33-7-11 (a) (1) (2005). Moreover, at that time, the statute applied to umbrella and excess liability policies, in addition to primary insurance policies, unless the named insured rejected UM coverage in writing. See Abrohams v. Atlantic Mut. Ins. Agency, 282 Ga. App. 176, 180 (1) (638 SE2d 330) (2006); OCGA § 33-7-11 (a) (3) (2005).

Georgia courts have repeatedly emphasized the remedial nature and purpose of OCGA § 33-7-11. See Wagner v. Nationwide Mut. Fire Ins. Co., 288 Ga. App. 132 (653 SE2d 526) (2007).

The purpose of uninsured motorist or UM coverage is to place the injured insured in the same position as if the offending uninsured motorist were covered with liability insurance. Stated otherwise, the purpose of uninsured motorist legislation is to require some provision for first-party insurance coverage to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers. The Georgia uninsured motorist statute is designed to protect the insured as to his actual loss, within the limits of the policy or policies of which he is a beneficiary.

(Citations and punctuation omitted.) State Farm Mut. Auto. Ins. Co. v. Adams, 288 Ga. 315, 316-317 (702 SE2d 898) (2010). Moreover, the mandatory language of the UM statute plainly and without exception provides for the payment of all sums which the insured is legally entitled to recover as damages from the uninsured motorist. See Wagner, supra, 288 Ga. App. at 133. Accordingly, Georgia courts have consistently struck down UM exclusions where they conflict with the remedial purpose of UM coverage. See, e.g., Doe v. Rampley, 256 Ga. 575, 577 (1) (351 SE2d 205) (1987) (exclusion which would avoid coverage if insured occupied noncovered motor vehicle furnished for his regular use conflicted with UM coverage requirement); Abrohams, supra, 282 Ga. App. at 182 (3) (UM exclusion in umbrella policy conflicted with plain terms of Georgia’s insurance statutes).

St. Paul argues that Indiana law controls the question of UM coverage in this case, because the Policy was delivered in Indiana. St. Paul cites several Georgia cases holding that insurance contracts are governed by the law of the place where the policy was delivered. None of these cases, however, addressed a situation in which a Georgia resident was injured in an accident while driving a vehicle that was principally garaged and used in Georgia. Moreover, in interpreting the “principally garaged and principally used” language in OCGA § 33-7-11 (a) (1), the Supreme Court of Georgia has held that

the validity of and rights created by a liability insurance contract are to be determined by the law of the state which the parties understood to be the principal location of the insured risk during the term of the policy... because, in the case of an automobile liability policy, the parties will usually know beforehand where the automobile will be garaged during most of the period in question.

(Citations and punctuation omitted.) Arnica Mut. Ins. Co. v. Bourgault, 263 Ga. 157, 160 (2) (429 SE2d 908) (1993).

Here, the undisputed evidence showed that the truck Hughes was driving at the time of the accident was principally used and garaged in Georgia. Therefore it was reasonable for the parties to assume that Georgia was the principal location of risk and to expect that Georgia law, rather than Indiana law, would be determinative on the issue of whether the Policy provides UM coverage. See Arnica, supra, 263 Ga. at 160 (2). Moreover, to the extent that the choice of law rules in prior Georgia cases, including those relied upon by St. Paul, conflict with the plain language of OCGA § 33-7-11 (2005), the statute controls. See Douglas County v. Abercrombie, 226 Ga. 39, 41 (172 SE2d 419) (1970).

Since St. Paul is licensed in Georgia, Hughes was driving a truck that was principally used and garaged in Georgia and there was no written rejection of UM benefits for the Policy, the Policy’s UM exclusion conflicts with the plain terms of OCGA § 33-7-11 and was therefore void. See Abrohams, supra, 282 Ga. App. at 181-182 (3). Accordingly, the trial court properly denied St. Paul’s cross-motion for summary judgment and properly granted Hughes’s motion for partial summary judgment on the limited issue of whether the Policy provides UM coverage.

Decided May 10, 2013.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Stephen J. Rapp, for appellant.

Dillard, Bower & Crowley, Terry A. Dillard, Swift, Currie, McGhee & Hiers, Bradley S. Wolff, Alicia A. Timm, Francis L. Morris, Jr., Norman M. Sawyer, Jr., R. Stephen Sims, for appellee.

Judgment affirmed.

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

       The legislature amended OCGA § 33-7-11 (a) (3) in 2008 to exclude umbrella or excess liability policies unless such policies or a policy endorsement affirmatively provided for UM coverage. See Ga. L. 2008, p. 1192, § 1. The 2008 amendment expressly applies to policies issued, delivered or renewed in this state on and after January 1, 2009. See id. at § 5 (a). Accordingly, the amendment does not apply to the Policy, which was issued on July 1, 2005.

       See O’Neal, supra, 243 Ga. App. at 757 (1) (trial court correctly applied Tennessee law in determining effect of Tennessee insured’s failure to comply with notice requirements for making UM claim under Tennessee insurance contract executed and delivered in Tennessee); Dacosta v. Allstate Ins. Co., 188 Ga. App. 10-11 (372 SE2d 7) (1988) (applying Tennessee law in case involving insured residing in Tennessee and policy issued there and holding that application of Tennessee statute allowing offset of workers’ compensation benefits against UM benefits did not frustrate purpose of Georgia’s UM statute); Howard v. Doe, 174 Ga. App. 415, 415-416 (330 SE2d 370) (1985) (holding that Tennessee law governed availability of UM benefits to Tennessee resident under policy executed and delivered in Tennessee and that insured failed to show prejudice to public interest from application of Tennessee statute excluding UM coverage of accident allegedly involving an unknown driver); Belk v. Doe, 191 Ga. App. 475, 475-476 (382 SE2d 195) (1989) (applying Tennessee law to case in which Tennessee resident insured under Tennessee policy was involved in accident with unknown driver).


text:
    A13A0083.
    SIMMONS v. THE STATE.
    (743 SE2d 434)
   DOYLE, Presiding Judge.

Following a bench trial, Robert Lee Simmons was convicted of driving under the influence to the extent it was less safe for him to drive (“DUI less safe”), failure to report an accident resulting in injury or property damage of $500 or more, aggressive driving, possessing an open container of an alcoholic beverage in the passenger area of a vehicle, and operating a motor vehicle without registration or a valid license plate. Simmons appeals, arguing that he did not intelligently waive his right to a jury trial. He also contends that the trial court erred by admitting a particular witness statement, and he challenges the sufficiency of the evidence with regard to his convictions for DUI less safe, aggressive driving, and possessing an open container. We affirm, for the reasons that follow.

“ ‘On appeal from a criminal conviction that follows a bench trial, the defendant no longer enjoys a presumption of innocence, and we view the evidence in a light favorable to the trial court’s finding of guilt.’ ” So viewed, the evidence shows that on January 11, 2011, at approximately 9:30 p.m., Bradley Faircloth was traveling on 1-20 in Cobb County. The roads were icy and slushy, with only one traveling lane open; cars were lined up in the emergency lane to exit the highway. Faircloth was in the stop and go line of traffic in the emergency lane when his vehicle was struck from behind by a tow truck four times, in rapid succession, with such force that the towing hitch on the back of Faircloth’s truck broke. Faircloth approached the truck that hit him to exchange information with the driver, Simmons, who was sitting in the driver’s seat. Simmons had slurred speech, and when he opened the door of his truck, Faircloth noticed that “it reeked of alcohol.” Simmons said that “somebody must have put something in [his] drink,” and then repeatedly stated that he needed to leave. While Faircloth called 911, Simmons closed the door and drove off quickly, sideswiping Faircloth’s truck and almost striking him.

Officer Brian Scurr responded to the scene and spoke to Fair-cloth, who was complaining of back pain and had “significant damage to the rear of [his] vehicle.” Faircloth indicated that the tow truck had the word “Simmons” on the side. Officer Scurr then received notice from dispatch that there had been another accident nearby.

When Officer Scurr arrived at the scene of the second accident approximately 20 minutes later, he observed Simmons’s tow truck and a 24-ounce “can of Crunk juice malt liquor laying just outside of the driver’s cabin of the tow truck on the road in the snow.” Officer Scurr asked Simmons to exit the vehicle, which did not have a license plate, and Simmons stepped out, lost his balance, and almost fell into the road. Simmons had bloodshot, glassy eyes and a strong odor of alcohol emanating from his breath, and he could not walk without assistance. Officer Scurr elected not to conduct field sobriety tests on Simmons because he was concerned that Simmons’s lack of balance and the proximity to a major road posed a safety hazard. Based on his experience, training, and observations of Simmons, Officer Scurr placed Simmons under arrest for DUI less safe.

Following a bench trial, Simmons was found guilty of DUI less safe, failure to report an accident resulting in injury or property damage of $500 or more, aggressive driving, possessing an open container of an alcoholic beverage in the passenger area of a vehicle, and operating a motor vehicle without registration or a valid license plate. This appeal followed.

1. Simmons contends that he did not intelligently waive his constitutional right to a jury trial because the trial court did not advise him of the specific consequences that the waiver would have with regard to the trial court’s factual findings. This argument is without merit.

A defendant’s right to trial by jury is one of those fundamental constitutional rights that the defendant must personally, knowingly, voluntarily, and intelligently choose to waive. A trial court should ask the defendant sufficient questions on the record so that the court can ensure the defendant’s waiver is knowing, voluntary, and intelligent.

“The waiver, however, need not follow any particular form. The only real issue is whether the defendant intelligently agreed to a trial without jury.”

When a defendant questions the validity of such a waiver, the State bears the burden of showing the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.

“We will affirm a trial court’s determination that a defendant validly waived the right to a jury trial unless that determination is clearly erroneous.”

Here, immediately before the trial began, the trial court asked Simmons if he understood that he had a right to a jury trial and asked whether Simmons was “voluntarily and knowingly waiving” his right to a trial by jury, and Simmons responded affirmatively to both questions. “Only after receiving [Simmons’s] oral assurance that he wished to waive trial by jury and proceed to trial before the court did the trial court accept [Simmons’s] waiver.” Under these circumstances, the record shows that Simmons knowingly and intelligently waived his constitutional right to a trial by jury.

2. Simmons argues that the trial court erred by admitting Faircloth’s testimony regarding Simmons’s statement that someone had put something into his drink because the State failed to provide the statement to the defense before trial. This argument is unavailing.

OCGA § 17-16-7 provides, in relevant part:

No later than ten days prior to trial or at such time as the court permits, . . . the prosecution . . . shall produce for the opposing party any statement of any witness that is in the possession, custody, or control of the state or prosecution . . . that relates to the subject matter concerning the testimony of the witness that [it] intends to call as a witness at trial. . . .

“The statutory obligation of OCGA § 17-16-7 is not triggered when a witness merely makes an oral statement. There can be no ‘possession, custody, or control’ of a witness’ statement which has neither been recorded nor committed to writing.” Moreover, even assuming that admission of the statement was erroneous, it was harmless in light of the other evidence in the case, including witnesses’ observations of Simmons’ slurred speech, bloodshot eyes, lack of balance, odor of alcohol, and repeated collisions with Faircloth’s truck.

3. Next, Simmons contends that the evidence was insufficient to support his conviction for DUI less safe “based exclusively on the insufficient and inadmissible testimony of witness . . . Faircloth.”

Simmons does not indicate why Faircloth’s testimony was inadmissible. Assuming that he is referring to Faircloth’s testimony regarding Simmons’s statement to him, we resolved that issue against him in Division 2. Further, Faircloth’s testimony was not the only evidence of DUI less safe. In addition to Faircloth’s testimony that Simmons hit his truck four times, had slurred speech, smelled of alcohol, and sideswiped Faircloth’s truck as he fled the scene, Officer Scurr testified that Simmons smelled of alcohol, could not maintain his balance, and had bloodshot, glassy eyes. This evidence is sufficient to support Simmons’s conviction for DUI less safe.

Decided May 13, 2013.

J. Alfred Johnson, for appellant.

4. Simmons also challenges the sufficiency of the evidence with regard to his conviction for aggressive driving, pointing out that Faircloth conceded on cross-examination that he “[could not] say” if the rear-end collisions were caused by the icy conditions. This argument is without merit. After reviewing the evidence — that Simmons struck Faircloth’s truck four times in rapid succession and then struck it again as he fled the scene — in the light most favorable to the verdict, “we conclude that a rational trier of fact could have found [Simmons] guilty of violating OCGA § 40-6-397 (a) beyond a reasonable doubt.”

5. Finally, Simmons challenges the sufficiency of the evidence with regard to his conviction for possessing an open container, arguing that Officer Scurr’s testimony that he observed the open container of malt liquor sitting in the snow directly outside the driver’s door of Simmons’s vehicle was insufficient because “the malt beverage can in the street could have belonged to anyone.” We disagree.

“A person violates OCGA § 40-6-253 (b) by either consuming an alcoholic beverage or by possessing an open alcoholic-beverage container in the passenger area of a vehicle on a roadway or shoulder of a public highway.” When reviewing the sufficiency of the evidence,

we do not determine the credibility of witnesses or weigh evidence; this is within the province of the jury. Our sole consideration on appeal is whether a rational trier of fact could have found [Simmons] guilty of violating Georgia’s open-container law beyond a reasonable doubt. And because there is some competent evidence ... to support a finding that [Simmons] committed the charged offense, we will not overturn the [conviction].

Judgment affirmed.

McFadden and Boggs, JJ., concur.

Barry E. Morgan, Solicitor-General, Rachel B. Plevak, Assistant Solicitor-General, for appellee.

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-273.

       OCGA § 40-6-397 (a).

       OCGA § 40-6-253 (b) (1).

       OCGA § 40-2-8.

       (Punctuation omitted.) Hinton v. State, 319 Ga. App. 673 (738 SE2d 120) (2013).

       Simmons was also charged with striking an unattended vehicle and aggressive driving with regard to the second accident (not involving Faircloth), but the State withdrew those charges at trial.

       (Punctuation and footnote omitted.) Watson v. State, 274 Ga. 689, 691 (2) (558 SE2d 704) (2002), citing Boykin v. Alabama, 395 U. S. 238, 243, n. 5 (89 SCt 1709, 23 LE2d 274) (1969).

       (Citation and punctuation omitted.) Edwards v. State, 285 Ga. App. 227, 229 (2) (645 SE2d 699) (2007).

       (Punctuation omitted.) Allison v. State, 288 Ga. App. 482, 485-486 (2) (654 SE2d 628) (2007).

        Edwards, 285 Ga. App. at 229 (2).

        Watson, 274 Ga. at 691 (2).

       See id.; Ray v. State, 292 Ga. App. 575, 577 (2) (665 SE2d 345) (2008).

       Simmons objected to the admission of the statement during trial.

       (Punctuation omitted; emphasis supplied.) Winfrey v. State, 286 Ga. App. 718, 721 (3) (650 SE2d 262) (2007), quoting Forehand v. State, 267 Ga. 254, 255-256 (3) (477 SE2d 560) (1996). See also OCGA § 17-16-1.

       See Winfrey, 286 Ga. App. at 722 (4).

       See Gregoire v. State, 285 Ga. App. 111, 113-114 (2) (645 SE2d 611) (2007) (erratic driving behavior, odor of alcohol, bloodshot eyes, and slurred speech sufficient to support conviction for DUI less safe); Shockley v. State, 256 Ga. App. 892, 893-894 (1) (570 SE2d 67) (2002).

        Frasard v. State, 278 Ga. App. 352, 354 (1) (629 SE2d 53) (2006) (physical precedent only). See also Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979); OCGA § 40-6-397 (a) (“A person commits the offense of aggressive driving when he or she operates any motor vehicle with the intent to annoy, harass, molest, intimidate, injure, or obstruct another person. . . .”).

        Davenport v. State, 308 Ga. App. 140, 151 (1) (d) (706 SE2d 757) (2011).

       (Punctuation and footnote omitted.) Id. at 152 (1) (d).


text:
    A13A0241.
    DANIELS v. THE STATE.
    (743 SE2d 440)
   Boggs, Judge.

A jury found Lawrence Daniels guilty of DUI per se and driving with a suspended license. Following the denial of his amended motion for new trial, Daniels appeals, asserting the general grounds, and contending that he was subjected to an illegal search and seizure and that the trial court erred in denying his motion for a continuance. For the following reasons, we affirm.

1. Daniels argues that the evidence was insufficient to sustain his convictions.

On appeal from a criminal conviction, this court views the evidence in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence. Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004). An appellate court does not weigh the evidence or determine witness credibility; instead, it decides whether, under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Id.

Heard v. State, 317 Ga. App. 663, 663-664 (731 SE2d 124) (2012).

Construed in favor of the verdict, the evidence showed that officers were conducting a roadblock at about 10:30 p.m. They observed a red Pontiac approach within 75 yards of the roadblock before suddenly turning off of the road and into the parking lot of a closed motel. Believing the driver’s sudden turn into the parking lot to be suspicious, an officer drove to the parking lot to investigate. As he entered the parking lot, the officer observed Daniels get out of the vehicle from the driver’s side door and walk toward the door of the motel. The officer approached Daniels and asked what he was doing. Daniels responded that “he had come to get a room.” The officer told Daniels that the “motel had been shut down for some time.” He noticed that Daniels “appeared nervous,” had glassy, bloodshot eyes, and had a “very strong” odor of alcohol about him.

A second officer arrived on the scene, made the same observations of Daniels as the first officer, and had Daniels perform a breath test which registered positive for the presence of alcohol. Daniels was arrested for DUI and for driving with a suspended license. He consented to a state-administered breath test which revealed a blood-alcohol level of 0.196. During his encounter with the officers, Daniels did not deny that he was driving the vehicle and at no time claimed that his former girlfriend, who was riding in the front passenger seat, was driving.

Daniels’ former girlfriend testified that she and Daniels had been at a birthday party earlier in the evening and that both of them were “drunk” after consuming several alcoholic beverages. She stated that they left the party around 10:30 p.m. and that Daniels was driving her Pontiac. She explained that when Daniels saw the roadblock, he pulled into the motel parking lot. Daniels then got out of the driver’s side of her vehicle, walked around to the passenger side and told her to get over in the driver’s seat. She refused to move, and soon after, the officer approached Daniels.

Daniels testified in his own defense that after he and his former girlfriend left the party, they “headed to the motel.” He stated that she was driving and that he did not know that the motel had been closed. Daniels explained that he got out of the passenger side of the vehicle, walked to the door of the motel, saw that it was closed, and was approached by the officer as he was about to get back in the passenger side of the vehicle. Daniels claimed that the officer’s testimony that he was driving was a “blatant lie.” He testified that he admitted to the officer that he had been drinking but “wasn’t drunk,” and that he gave the officer an identification card explaining: “because that’s all I’ve got in my wallet... I ain’t had no license since 1992.1 know I ain’t got no business driving and so I ain’t been driving.” Daniels testified further that his license had been suspended in 2003, specifically: “when I got them other suspended license, and the last one I got in ’03, I learned my lesson because I know they was going to send my butt to prison.”

Another officer testified that he had served Daniels with a notice that his driver’s license had been suspended in October 2001. He testified further that as of the day of trial, Daniels had not obtained a valid driver’s license and that he was still under “active suspension.” The officer explained that he was given this information through the “911 center; they have capability to run GCIC information, which is a collection of all the drivers’ histories.”

The evidence outlined above was sufficient to sustain Daniels’ conviction for driving with an unlawful alcohol concentration. See OCGA § 40-6-391 (a) (5) (no person shall be in physical control of any moving vehicle while the person’s alcohol concentration is 0.08 grams or more); see Howell v. State, 179 Ga. App. 632, 633-634 (1) (347 SE2d 358) (1986) (evidence sufficient that defendant was operating vehicle while under the influence of alcohol where officer observed defendant exit the driver’s side of car); see also Mueller v. State, 257 Ga. App. 830, 833 (3) (572 SE2d 627) (2002). And while Daniels argues that the officer’s testimony that his license was suspended was hearsay because the officer obtained the information from an unidentified person at the 911 call center, his own testimony established he had “no license,” had knowledge that his license was suspended, and that his license was suspended on the day of the incident. Daniels essentially claimed that he was not driving the vehicle because his license was suspended. This evidence was sufficient, albeit circumstantial, to sustain his conviction for driving with a suspended license. See OCGA § 40-5-121 (a); Heard v. State, 257 Ga. App. 505, 507-508 (3) (571 SE2d 524) (2002) (evidence sufficient to sustain conviction for driving with a suspended license where defendant responded affirmatively when officer asked him on the scene if his license was suspended).

2. Daniels challenges what he claims was an “illegal search and seizure.” Daniels filed a motion to suppress but failed to appear for the hearing on the matter, and the trial court deemed the motion abandoned. During trial, however, the court nonetheless allowed Daniels to make his objection that the officers did not have probable cause to stop him. Following the arguments by both counsel, the trial court denied the motion.

Daniels argues on appeal that because the officer pulled into the hotel parking lot behind him, allowing no way for him to leave, he was not free to go and the officer’s questioning therefore was unlawful. But the officer testified that he pulled into the parking lot behind Daniels after Daniels had stopped, and that he approached Daniels at the door of the motel. “It is well established that an officer’s approach to a stopped vehicle and inquiry into the situation is not a ‘stop’ or ‘seizure’ but rather clearly falls within the realm of the first type of police-citizen encounter.” (Citation, punctuation and footnote omitted.) Bacallao v. State, 307 Ga. App. 539, 541 (705 SE2d 307) (2011). Here, the officer’s approach to Daniels was nothing more than a first-tier encounter, and once the officer observed that Daniels smelled strongly of alcohol, had bloodshot eyes, and had just exited the driver’s side of the vehicle, after observing Daniels pulling into the parking lot of a closed motel within 75 yards of the roadblock, the officer had sufficient articulable suspicion to continue investigating. Id.; see also Stokes v. State, 238 Ga. App. 230, 232 (518 SE2d 447) (1999). This claim of error is therefore without merit.

3. Daniels argues that the trial court erred in denying his motion for a continuance. At the start of trial, Daniels announced that he was not ready to begin trial because of the absence of a witness critical to his defense. Daniels explained that testimony from his mother was needed to establish the bias of his former girlfriend. He argued that the two women had had an altercation the day before trial which caused his mother to have a stroke. Daniels asserted that his mother was in intensive care and could not appear for trial. The State explained in rebuttal that the day before trial, Daniels andhis mother attempted to dissuade the former girlfriend from testifying that Daniels was driving. The trial court denied Daniels’ motion for a continuance, explaining: “I’m not going to continue it. If she’s not under subpoena — I mean he was here in court and I told him his case would be coming up today.... He knew about this alleged bias before that... he knew that he was contending that she was driving.”

OCGA § 17-8-25 provides:

In all applications for continuances upon the ground of the absence of a witness, it shall be shown to the court that the witness is absent; that he has been subpoenaed; that he does not reside more than 100 miles from the place of trial by the nearest practical route; that his testimony is material; that the witness is not absent by the permission, directly or indirectly, of the applicant; that the applicant expects he will be able to procure the testimony of the witness at the next term of the court; that the application is not made for the purpose of delay but to enable the applicant to procure the testimony of the absent witness; and the application must state the facts expected to be proved by the absent witness.

A motion for continuance is addressed to the sound discretion of the trial court, and this court will not interfere with the ruling on such a motion unless it is clearly shown that the trial court abused its discretion. Anthony v. State, 276 Ga. App. 107, 109 (2) (622 SE2d 450) (2005). “Furthermore, the trial court has discretion in determining whether to grant a continuance for absence of a witness, and that discretion is not abused unless all of the requisites of OCGA § 17-8-25 are shown and the trial court still denied a continuance.” (Citation, punctuation and footnote omitted.) Id.

Daniels admittedly did not meet the requirements of OCGA § 17-8-25 because he did not subpoena his mother. And he presented nothing to show that she was in fact hospitalized and unable to appear in court. He argued below, and now here on appeal, that he was unable to comply with the requirements of the statute because the alleged bias did not arise until the day before trial. Although the trial court denied Daniels’ motion for a continuance, it allowed Daniels’ counsel to question the former girlfriend regarding the altercation. She stated that Daniels and his mother “kept following [her],” and admitted that she and Daniels’ mother “got into an argument” the day before trial. When asked whether the argument was the “reason[ ] that you are now testifying the way you are today about what happened,” the former girlfriend stated, “No, sir, it’s not,” and asserted that she was telling the truth about what had occurred the night Daniels was arrested.

Decided May 14, 2013.

Timothy L. Eidson, Rashawn D. Clark, for appellant.

Denise D. Fachini, District Attorney, for appellee.

“It is . . . axiomatic that harm must be shown from the denial of a motion for a continuance to secure the witness.” (Citations and footnote omitted.) Theophile v. State, 295 Ga. App. 517, 521 (2) (672 SE2d 479) (2009). Under the circumstances here, Daniels has failed to show any harm from the absence of his mother’s testimony. He was allowed to question the former girlfriend regarding whether the altercation involving Daniels’ mother affected her testimony. Moreover, while Daniels argued that the trial court erred in denying his motion for a continuance at the hearing on the motion for new trial, held nearly three years after trial, Daniels failed to present his mother as a witness or proffer her testimony to show how it would have aided his defense. In the absence of any ensuing harm from the denial of his motion for a continuance, Daniels has failed to meet his burden of presenting this court with grounds for reversal. See Gay v. State, 220 Ga. App. 78, 79-80 (467 SE2d 383) (1996) (no showing of harm in denial of continuance); Theophile, supra (where no transcript of alibi witness testimony during motion for new trial, defendant failed to show harm from denial of motion for continuance due to absence of that witness).

Judgment affirmed.

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


author: ANDREWS, Presiding Judge.

text:
    A13A0380.
    TAYLOR et al. v. MARSHALL.
    (743 SE2d 444)
   ANDREWS, Presiding Judge.

Joshua Taylor and Lauren Thomas (plaintiffs below) appeal after the trial court granted Anne Marshall’s motion for sanctions and struck their complaint. For reasons that follow, we reverse the order dismissing the action with prejudice and remand for a hearing on whether plaintiffs’ failure to comply with discovery was wilful.

This case arose following an automobile accident. Taylor and Thomas sued Marshall, claiming that her negligence caused both property damage and personal injuries. Marshall answered and served interrogatories and requests for production of documents on both Taylor and Thomas on October 10, 2011. On the same date, Marshall also noticed both their depositions for January 11, 2012.

Plaintiffs’ counsel cancelled the depositions for January, and both were rescheduled for February 20, 2012. On February 17, counsel again stated that he could not attend the depositions and they would have to be rescheduled.

On February 20, 2012, Marshall’s counsel notified plaintiffs that she had received no response to discovery from Thomas and no response to the request for production of documents from Taylor. Taylor had responded to the interrogatories, but the responses were incomplete and referred to attachments that were not included. The memo went on to state that plaintiffs had twice cancelled depositions and this was the last good faith attempt to resolve the disputes without court intervention.

Marshall filed a motion for sanctions on April 5, 2012. The court issued its order granting the motion and dismissing the case with prejudice on June 26, 2012. Plaintiffs did not submit any response to the motion.

After the court issued its order, plaintiffs filed a motion to set aside, contending that they did not wilfully fail to comply with discovery, pointing out that the court did not hold a hearing on the issue, and the trial court’s order did not find that their failure to comply with discovery was wilful. Plaintiffs’ counsel attached an affidavit to the motion explaining that he and his wife were the only two members of the firm and her father had been ill. As a result, plaintiffs’ counsel had added child care and caseload burdens to handle. The trial court denied the motion to set aside, and this appeal followed.

Taylor and Thomas argue that the trial court erred in striking their complaint without first conducting a hearing and without determining that their failure to respond to discovery was wilful. We agree.

The law authorizing the imposition of sanctions for discovery-related abuses is not ambiguous, uncertain, or arcane. OCGA § 9-11-37 (d) (1). Provided proper discovery procedures are followed, when a party fails to appear for a properly noticed deposition, or fails to answer or object to interrogatories properly submitted under OCGA § 9-11-33, or after appropriate service fails to respond to document requests, a trial court may take any action delineated under OCGA § 9-11-37 (b) (2) (A)-(C). Id.; see Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 439 (2) (254 SE2d 825) (1979). Among several other options, subsection (b) (2) (C) authorizes a court to enter an order “dismissing the action or proceeding or any part thereof.” OCGA § 9-11-37 (b) (2) (C). Moreover, an order compelling discovery is not a condition precedent for the imposition of sanctions under subsection (d). Cook v. Lassiter, 159 Ga. App. 24, 25 (282 SE2d 680) (1981). All that is required is a motion, notice, and a hearing.

Rivers v. Almand, 241 Ga. App. 565, 566 (527 SE2d 572) (1999). See also McConnell v. Wright, 281 Ga. 868, 869 (644 SE2d 111) (2007) (trial court may apply sanctions after giving the obstinate party an opportunity to be heard and determining that the obstinate party’s failure to obey was wilful).

It is true that, in some exceptional cases, a hearing is not absolutely necessary. For example, in McConnell, the Court stated that “where a trial court has already conducted a hearing on a prior motion to compel, the record may already contain enough evidence of the obstinate party’s willful behavior to support the conclusion that any hearing on the issue of willfulness would simply be duplicative.” Id. at 870. The Court held that McConnell was

not the type of exceptional case where a hearing on willfulness is not necessary. No motion to compel was filed against the McConnells, no hearing of any type was held, and the record would support (though not demand) a finding that [the McConnells’] failure to [attend their depositions] resulted from negligence rather than wilfulness. Given these facts, a hearing on willfulness was required in this case.

Id. at 870.

Likewise, in the case before us, there was no motion to compel prior to filing the motion for sanctions, there was no hearing on the motion for sanctions, and there is nothing in the record before us that demands a finding that plaintiffs’ re-scheduling of their depositions and failure to respond to certain discovery was wilful. Accordingly, the judgment of the trial court should be reversed and the case remanded for further proceedings not inconsistent with this opinion. See McConnell, supra at 870; Rouse v. Arrington, 283 Ga. App. 204, 207 (641 SE2d 214) (2007) (“Because the record does not establish without dispute that Rouse’s failure to comply with the court order was wilful, we reverse the order of the trial court dismissing the complaint with prejudice and remand for a hearing on the issue of wilfulness.”).

Decided May 14, 2013.

Jeffery L. Dickerson, for appellants.

Bridges, Ormand & Nash, April Rich, for appellee.

Judgment reversed and case remanded.

Dillard and McMillian, JJ., concur.


author: BARNES, Presiding Judge.

text:
    A13A0485.
    DUBARTON ENTERPRISES, LLC et al. v. APPALACHIAN COMMUNITY BANK.
    (750 SE2d 682)
   BARNES, Presiding Judge.

Dubarton Enterprises, LLC and Richard Dubarton (collectively, “Dubarton”) appeal from the trial court’s order denying their motion for modification of the supersedeas bond entered after the trial court granted Appalachian Community Bank’s (the “Bank”) motion for summary judgment and awarded a judgment in the amount of $835,592.28. The Bank had filed an emergency motion for supersedeas bond for the full amount of the judgment, but the trial court ordered that the bond amount would be $200,000, based, in part, on a 2009 appraisal of the collateral property. The 2009 appraisals established that the value of the property was approximately $29,000 more than the judgment amount. The trial court took judicial notice, based on “common knowledge,” that it was unlikely that property values in Gilmer County had increased or maintained their 2009 value. The court further found that the bond amount should cover “costs, interest, and damages for delay if the appeal is found to be frivolous” and set the amount of the bond at $200,000. Following a hearing on Dubarton’s motion for reconsideration, which the trial court denied, this appeal ensued.

Subsequent to Dubarton’s appeal of the bond amount, this Court affirmed the trial court’s grant of summary judgment to the Bank in an unpublished opinion pursuant to Court of Appeals Rule 36. See Dubarton Enterprises v. Appalachian Community Bank, Case No. A12A2054 (decided March 11, 2013). Thus, as the appeal is no longer pending in this Court, the issue as to the supersedeas is moot. OCGA § 5-6-48 (b) (3); Muhammad v. Power Lending, 311 Ga. App. 347, 349-350 (5) (715 SE2d 734) (2011) (holding that because appeal of underlying order had been resolved “all issues regarding the propriety of a supersedeas bond [were] moot”). Cf. Hubert v. State, 244 Ga. 374 (260 SE2d 83) (1979) (the “court having affirmed the judgment denying the appellant’s petition for writ of habeas corpus... the present appeal from that same judgment... is hereby [ ] dismissed as moot”).

Decided May 14, 2013.

Kaufman, Miller & Forman, Robert J. Kaufman, for appellants.

Thompson, O’Brien, Kemp &Nasuti, Bret T. Thrasher, Jeremy B. Ross, for appellee.

Appeal dismissed.

Miller and Ray, JJ., concur.


text:
    A13A0756.
    THOMPSON v. THE STATE.
    (743 SE2d 446)
   BARNES, Presiding Judge.

Following a jury trial, Anthony Thompson was found guilty of aggravated child molestation and two counts of child molestation. He filed a motion for new trial, which, following a hearing, the trial court denied. Thompson appeals from that order and contends as his sole claim of error that the trial court erred in overruling his objection to improper bolstering by the prosecutor during closing argument. Upon our review, we affirm.

Construed in the light most favorable to support the jury’s verdict, Drammeh v. State, 285 Ga. App. 545, 546 (1) (646 SE2d 742) (2007), the evidence shows that when the victim was approximately 12 years old, Thompson, her mother’s boyfriend and whom the victim referred to as her “Daddy,” would wake her up after her mother left for work and take the victim to her mother’s room. Once there, he would touch her vagina with his mouth and tongue. The victim wrote about the acts in her diary, and later made an outcry to her best friend and to her mother.

On appeal, Thompson does not challenge the sufficiency of the evidence. He only contends that the trial court erred in overruling his objection to comments made by the prosecutor during closing argument that he alleges improperly bolstered testimony from the psychologist who conducted the forensic examination of the victim. He asserts that the prosecutor’s comment impermissibly inferred that the psychologist believed the victim, and that the trial court should have instructed the jury pursuant to OCGA § 17-8-75. We do not agree.

During closing arguments, the prosecutor made the following remarks:

What about [the psychologist]? You suppose she lied? Because, again, [Thompson] is saying either she lied or she is a fool. Did she lie? Would it make sense for [the psychologist], who left the Georgia Center when that got shut down and now has a pretty good practice going in Cobb County, who has made a career out of helping children who have been victims of sexual and physical abuse, does it make sense she’s going to come in here and lie? She doesn’t get money for a conviction. She doesn’t get money for referrals.... Why would she lie? Maybe she’s just a fool then, because that’s the only other alternative is this 12-year-old girl . . . maybe she’s such a clever, such a smart, such a shifty, maybe she’s got such an encyclopedic knowledge from watching Law and Order, maybe she’s seen so much Law and Order that she can fool a Ph.D. After those 600 evaluations, [the psychologist] just blew it on this one.

Thompson objected, arguing that the psychologist “never gave an opinion as to the truth of the testimony.” The State responded that it had not

asked [the psychologist] whether or not she was going to pass on the truthfulness of [the victim]. However, she did testify to a number of specific things she found — that she would find to be reasonable or that she would expect to see, and, incidentally, those are the things we see in [the victim]. I’m asking the jury to make that leap, not [the psychologist].

The trial court overruled the objection. In its order denying Thompson’s motion for new trial, the trial court found that Thompson’s improper bolstering argument was waived because he did not argue the same grounds at trial. The court held that Thompson had objected to the State’s argument on the basis that “the prosecutor incorrectly argued that [the psychologist] gave an opinion as to the truthfulness of the victim’s testimony.” The trial court also found that as a matter of fact and law, the comment was not improper bolstering.

Pretermitting whether the trial court correctly found that Thompson waived the claim of improper bolstering, we conclude that it did not err in overruling the objection.

As a general rule, prosecutors are granted wide latitude in conducting closing argument, and defining the bounds of such argument is within the trial court’s discretion. This wide latitude encompasses the prosecutor’s ability to argue reasonable inferences raised by the evidence. Accordingly, it is proper for a prosecutor to urge the jury to draw inferences from the evidence regarding the credibility of witnesses.

(Citations and punctuation omitted.) Brown v. State, 293 Ga. App. 633, 637-638 (1) (d) (ii) (667 SE2d 899) (2008).

As the State noted, the psychologist had testified about certain reactions that were common in sexually abused children, including the reluctance to verbalize about the sexual abuse, that it was common for victims to tell a friend, and also common for them to not make an outcry at the time of the abuse. The State’s references in closing argument were to the psychologist’s forensic findings and the inferences thereto, not to any opinion as to the veracity of the victim. Thompson had argued in his closing argument that the victim’s reactions — including that she had not made an outcry for two years — did not “make sense.”

Despite Thompson’s contention,

there is absolutely nothing wrong with expert opinion testimony that bolsters the credibility of the indicted allegations of sexual abuse, e.g., “the victim’s physical examination showed injury consistent with sexual abuse,” or “the victim’s psychological evaluation was consistent with sexual abuse.” Establishing the credibility of the indicted acts of sexual abuse is what the State’s case is all about and is the purpose for such expert testimony in the first place; the fact that such testimony may also indirectly, though necessarily, involve the child’s credibility does not render it inadmissible.

Decided May 14, 2013.

Thomas S. Robinson III, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

(Punctuation and footnote omitted.) Odom v. State, 243 Ga. App. 227, 227-228 (1) (531 SE2d 207) (2000); see generally Pearce v. State, 300 Ga. App. 777, 785 (6) (686 SE2d 392) (2009) (holding that a nurse practitioner’s general testimony about behavior associated with child sexual abuse accommodation syndrome, including secrecy, fear, and confusion, did not constitute improper bolstering).

Accordingly, as the State’s remarks did not improperly bolster the psychologist’s testimony but instead reinforced the inferences that could be made from the forensic findings, the trial court did not err in overruling Thompson’s objection.

Judgment affirmed.

Miller and Ray, JJ., concur.

       OCGA § 17-8-75 provides:
      Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.


author: McMlLLIAN, Judge.

text:
    A13A0799.
    THE STATE v. HILL.
    (743 SE2d 448)
   McMlLLIAN, Judge.

The State appeals the trial court’s order vacating Patricia Hill’s plea of guilty to one count of misdemeanor battery and one count of simple battery and entering a plea of no contest in its stead. Because this is not an order from which the State can appeal under OCGA § 5-7-1, the appeal is dismissed.

Hill originally pled guilty to these counts on October 18, 2012, as part of a negotiated plea. In exchange, the State requested, and the trial court entered, an order to nolle prosequi four additional counts of simple battery and one count of simple assault against her. The record shows that the State and Hill initially negotiated the plea to include first offender status with 24 months probation and 48 hours to serve, among other conditions. But after hearing the factual basis from the State and Hill and holding an unrecorded bench conference with counsel, the trial court sentenced Hill to serve 13 hours, with credit for time served, and closed the case. The State raised no objection at that time.

However, approximately one week later, on October 26,2012, the trial court held another hearing in which it invited Hill to change her plea from guilty to no contest. The trial judge, acknowledging that she failed to provide Hill first offender treatment in the original sentence, said that she regularly allowed defendants in similar circumstances to enter a no contest plea. The trial judge recognized that Hill was concerned about her record and stated that a no contest plea did not “look quite as bad” and could not “be used for certain other purposes.”

The prosecution objected to the trial court’s initiating such a procedure, noting that the defendant had made no request to withdraw her plea and had been willing to enter a guilty plea after the trial court rejected the parties’ negotiated plea. The prosecutor then stated, “If Your Honor is wishing to reopen the case to allow the entry of a nolo plea, the State would withdraw its motion for a nolle [prosequi] as this is no longer a negotiated plea on the remaining counts, and would ask that Ms. Hill have to enter the plea to the entirety of the accusation as a non-negotiated plea.” The trial judge responded by stating that she was allowing the guilty plea to be vacated and replaced with a no contest plea, noting that she is not bound by the terms of the parties’ negotiated plea. The trial court, however, did not expressly address the issue of the State’s nolle prosequi, and the State did not pursue the issue further.

As its sole argument on appeal, the State asserts the trial court erred by dismissing five counts of Hill’s accusation without legal authority. Although the State concedes the trial court had the authority to vacate Hill’s guilty plea, it argues that the trial court could not substitute a no contest plea for Hill without re-opening her entire case. The State asserts that it withdrew its motion for nolle prosequi when the trial court changed the plea, and thus, the trial court erred when it did not address those counts of the accusation.

But the order from which the State appeals does not dismiss any counts of the accusation. Rather, those counts had already been dismissed pursuant to the State’s request at the original guilty plea hearing on October 18, 2012. See Buice v. State, 272 Ga. 323, 324 (528 SE2d 788) (2000) (“[n]olle prosequi is the State’s formal action on its decision not to further prosecute”). When the trial court entered an order granting the nolle prosequi that day, the prosecution for those counts of the accusation came to an end. See State v. Davis, 196 Ga. App. 785 (397 SE2d 58) (1990).

The order at issue in this appeal merely vacates Hill’s guilty plea and substitutes a no contest plea in its place, and the State has no right to appeal from such an order. “In OCGA § 5-7-1 (a), the General Assembly has set forth only a limited right of appeal for the State in criminal cases. If the State attempts an appeal outside the ambit of OCGA § 5-7-1 (a), the appellate courts do not have jurisdiction to entertain it.” (Citations and punctuation omitted.) State v. Outen, 289 Ga. 579, 580 (714 SE2d 581) (2011). Nothing in that statute allows the State to appeal directly from an order entering, vacating or substituting a plea. Accordingly, we have no jurisdiction to consider the State’s appeal.

Decided May 14, 2013.

Sherry Boston, Solicitor-General, WystanB. Getz, Assistant Solicitor - General, for appellant.

Borquaye A. Thomas, Cerrone G. Coker, for appellee.

Although the State argues that the trial court’s failure to reinstate the previously dismissed counts at the time it accepted Hill’s no contest plea somehow constituted a dismissal of those counts, thus allowing the State to appeal, the record contains nothing for us to review in that regard. The State made only a conditional motion to withdraw its prior nolle prosequi at the October 26 hearing, stating that it would withdraw the motion if the trial court re-opened the case. Even if we were to interpret the prosecutor’s statement as a motion to withdraw, however, the State failed to obtain any ruling on such a motion. Thus, pretermitting whether an order denying a motion to withdraw a nolle prosequi could ever constitute an order appealable by the State, the State’s failure to obtain a ruling on its motionleaves nothing for this Court to review. See Glover v. State, 291 Ga. 152, 153 (2) (728 SE2d 221) (2012) (in Georgia, “counsel must obtain rulings on his motions or objections, and the failure to do so ordinarily results in a waiver”) (citations and punctuation omitted).

Appeal dismissed.

Andrews, P. J., and Dillard, J., concur.

       OCGA § 5-7-1 (a) (1) authorizes the State to appeal from an order dismissing an accusation or indictment.


author: Ray, Judge.

text:
    A13A0137.
    LEDFORD v. MOBLEY.
    (743 SE2d 461)
   Ray, Judge.

John W. Ledford appeals the trial court’s award of attorney fees pursuant to OCGA § 9-15-14to Dennis L. Mobley and R&D Trucking and Transport Services, Inc. Because we lack jurisdiction, this case is dismissed.

“It is incumbent upon this Court to inquire into its own jurisdiction.” (Citation and punctuation omitted.) American Mgmt. Svcs. East v. Fort Benning Family Communities, 318 Ga. App. 827, 828 (1) (734 SE2d 833) (2012). Here, Ledford filed a direct appeal, where he should have filed a discretionary appeal.

Decided May 16, 2013.

Thomas F. Jones, for appellant.

Fryer, Shuster & Lester, William R. Lester, for appellee.

OCGA § 5-6-35 (a) (10) provides that “[a]ppeals from awards of attorney’s fees or expenses of litigation under Code Section 9-15-14” shall, pursuant to OCGA § 5-6-35 (b), “be by application in the nature of a petition enumerating the errors to be urged on appeal and stating why the appellate court has jurisdiction.”

It is well settled that the underlying subject matter of an appeal generally controls in determining the proper appellate procedure. Rebich v. Miles, 264 Ga. 467, 467-468 (448 SE2d 192) (1994). Here, an examination of the appellate brief shows enumerations of error addressing only the trial court’s award of attorney fees, which were uncontested below. No enumerations of error relate to other portions of the judgment. “[A]n application for appeal is required when ‘the underlying subject matter’ of the appeal is listed in OCGA § 5-6-35 (a), even though the party may be appealing a judgment or order that is procedurally subject to a direct appeal under OCGA § 5-6-34 (a).” (Citation omitted.) Avren v. Garten, 289 Ga. 186, 192 (7) (710 SE2d 130) (2011), citing Rebich, supra. Because the underlying subject matter of this appeal — the award of attorney fees pursuant to OCGA § 9-15-14 •— is listed in OCGA § 5-6-35 (a) (10), Ledford was required to follow the discretionary appeal procedures. Capricorn Systems v. Godavarthy, 253 Ga. App. 840, 841 (560 SE2d 730) (2002) (discretionary appeal procedure applied where appellant claimed error as to attorney fees award and made no claims of error as to other, directly appealable issues). Although this Court has found an award of attorney fees under OCGA § 9-15-14 directly appealable, it has done so only in instances where, unlike in the instant case, the attorney fees were appealed along with other, directly appealable matters. See Murray v. DeKalb Farmers Market, 305 Ga. App. 523, 524 (699 SE2d 842) (2010); Stancil v. Gwinnett County, 259 Ga. 507, 508 (384 SE2d 666) (1989); Haggard v. Bd. of Regents of the Univ. System of Ga., 257 Ga. 524, 526 (4) (a) (360 SE2d 566) (1987). These cases do not control here, and we lack jurisdiction.

Appeal dismissed.

Barnes, P. J., and Miller, J., concur.


text:
    A13A0183.
    NUMANOVIC v. JONES et al.
    (743 SE2d 450)
   Ray, Judge.

Appellees Joseph and Kara Jones filed a petition to adopt a minor child, J. J., in the Superior Court of Hart County. Appellant Adis Numanovic filed a petition for legitimation in that same action, which the trial court denied as untimely. Several months later, the trial court entered a final order granting the Joneses’ petition to adopt. Numanovic filed a direct appeal from that final adoption order, seeking review of the order denying his petition for legitimation and the termination of his parental rights. The Joneses filed a motion to dismiss Numanovic’s appeal, arguing that the notice of appeal was untimely as to the order denying legitimation and that a discretionary application was required. Because we lack jurisdiction, this appeal is dismissed.

The record shows that J. J. was born on July 6, 2011. The biological mother executed documents surrendering her parental rights to the Joneses, the prospective adoptive family. The mother also executed an affidavit identifying the biological father of the child as Numanovic. On July 18, 2011, the Joneses initiated a proceeding to adopt J. J. and served appellant with notice of the petition via a certified process server on July 19, 2011. On August 15, 2011, Numanovic, pro se, filed a responsive pleading that did not include a petition for legitimation or a notice of filing such petition, but instead stated that he “would proceed” to file a petition for legitimation and that he objected to the adoption of J. J. Appellant then obtained counsel and, on October 5, 2011, filed a petition for legitimation within the same civil action proceeding as the Joneses’ adoption petition. The trial court then denied appellant’s petition for legitimation and further ordered that appellant was “denied from objecting] to [the Joneses’] [p]etition for [a]doption of the child.” The trial court further denied appellant’s motion for reconsideration of that ruling. The trial court then entered a final order of adoption on January 13, 2012. Appellant filed the instant notice of appeal on January 18, 2012.

The Joneses moved to dismiss this direct appeal, contending that this Court lacks jurisdiction because Numanovic failed to file a discretionary application as required by OCGA § 5-6-35 (a) (12) and because his appeal was untimely.

Two Code sections determine the method for pursuing appeals to this Court and to the Supreme Court of Georgia. OCGA § 5-6-34 describes the trial court judgments and orders that may be appealed directly, including “[a]ll final judgments[,]” such as the trial court’s final adoption order in the present case. OCGA § 5-6-34 (a) (1). OCGA § 5-6-35 lists cases in which an application for appeal is required and includes “[ajppeals from orders terminating parental rights.” OCGA § 5-6-35 (a) (2), (a) (12). See also In the Interest of A. C., 285 Ga. 829, 834 (2) (686 SE2d 635) (2009).

Both OCGA §§ 5-6-34 (a) and 5-6-35 (a) are involved when, as here, a trial court issues a judgment in a case covered by the direct appeal statute, but where the subject matter may also be covered under the discretionary appeal statute. “Where both the direct and discretionary appeal statutes are implicated, it is always the underlying subject matter that will control whether the appeal must be brought pursuant to OCGA § 5-6-34 or [OCGA] § 5-6-35.” Ferguson v. Composite State Bd. of Medical Examiners, 275 Ga. 255, 256-257 (1) (564 SE2d 715) (2002). Accord Avren v. Garten, 289 Ga. 186, 192 (7) (710 SE2d 130) (2011). Here, an examination of Numanovic’s appellate brief shows enumerations of error addressing only the trial court’s order denying his petition for legitimation and terminating his parental rights. Because the underlying subject matter of this appeal — the denial of Numanovic’s petition for legitimation and the termination of his parental rights — is listed in OCGA § 5-6-35 (a), Numanovic was required to follow discretionary appeal procedures. See Cloud v. Norwood, 321 Ga. App. 218 (739 SE2d 93) (2013).

We further note that Georgia law requires that a petition for legitimation be filed in a new civil proceeding with a separate civil action number, and not within the same civil action number as the underlying adoption proceeding. See Brewton v. Poss, 316 Ga. App. 704, 704-706 (728 SE2d 837) (2012). Had Numanovic correctly filed his petition for legitimation in a separate civil action, he clearly would have been required to follow the discretionary review procedure set forth in OCGA § 5-6-35 in order to appeal the trial court’s denial of his petition. OCGA § 5-6-35 (a) (2). He cannot escape that requirement in this case because he incorrectly filed his petition for legitimation in the same civil action as the Joneses’ petition for adoption.

Because the review of the trial court’s denial of Numanovic’s petition for legitimation must come by discretionary application and Numanovic failed to file an application, we are without jurisdiction to hear the merits of his appeal.

Appeal dismissed.

Barnes, P. J., and Miller, J., concur.

Decided May 16, 2013.

Adis Numanovic, pro se.

Justin K. Berelc, Chad A. Hunt, for appellees.

       Because our finding that Numanovic’s appeal is dismissed for failure to follow discretionary appeal procedures, we need not reach the issue of whether his appeal was timely filed.


text:
    A13A0218.
    BROWN v. THE STATE.
    (743 SE2d 452)
   Ray, Judge.

After a jury trial, Shajarvis Brown was convicted of attempted armed robbery. He appeals from the denial of his motion for new trial, arguing that he received ineffective assistance of counsel. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence shows that a few days prior to January 15, 2007, Brown and three co-defendants, Willie Boddie, Trimario McCoy, and Ashley Williams, discussed robbing the Daniel Street Food Mart, a convenience store located in LaGrange, because the store’s clerk owed Brown “some money and he was going to get it back.” On January 15, 2007, Brown, Boddie, McCoy, and Williams drove to the convenience store and let Brown out of the car so that he could walk into the store and be the “look out.” The clerk at the Daniel Street Food Mart testified that Brown came into the store, borrowed the store’s phone for a few minutes, and then suddenly ran out of the store. Brown used the store’s phone to call Boddie and McCoy to inform them that the coast was clear to come into the store.

The remaining passengers of the car drove to a nearby street and parked the car. Williams remained in the car while Boddie and McCoy retrieved two assault rifles from the car’s trunk and began to walk toward the store. The two men put on face masks and, holding their weapons, began to creep around the side of the store. The LaGrange Police Department received a phone call from a bystander who noticed “two subjects . . . crouched down besides the Daniel Street Store wearing ski masks, carrying... rifles.” Officers worked quickly to secure a perimeter around the store, and as soon as Boddie and McCoy noticed an officer approaching them, they ran toward the back of the store where they were apprehended and arrested by other officers.

One of the officers then noticed Williams waiting in the car nearby, and she consented to the officer’s search of the car, which revealed a handgun and a canvas bag containing ammunition consistent with assault rifles carried by Boddie and McCoy.

At the conclusion of the trial, the jury found Brown guilty of attempted armed robbery. Subsequently, Brown obtained new counsel and filed an amended motion for new trial, alleging, in part, that his trial counsel provided ineffective assistance. After a hearing at which Brown’s trial counsel testified, the trial court denied Brown’s motion for new trial on all grounds. This appeal follows.

In his sole enumeration of error, Brown contends that he received ineffective assistance of counsel because his trial counsel failed to object to three instances of testimony indicating that Brown was facing charges for “other robberies” at the time of this case.

“In order to establish ineffectiveness of trial counsel, appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense.” (Footnote omitted.) Smith v. State, 309 Ga. App. 889, 892 (2) (714 SE2d 593) (2011). Failure to satisfy either prong of this test “is sufficient to defeat a claim of ineffective assistance, and it is not incumbent upon this Court to examine the other prong.” (Citation omitted.) Hargrove v. State, 291 Ga. 879, 881 (2) (734 SE2d 34) (2012).

There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, we give deference to the trial court’s factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court’s legal conclusions de novo.

(Footnote omitted.) Smith, supra.

1. Brown contends that his trial counsel should have objected to an exchange between the State and his co-defendant, Boddie, about a statement Boddie made to the police following the robbery because Boddie mentioned that he had “talk[ed] about two different robberies” with the police prior to trial. At the evidentiary hearing on Brown’s amended motion for new trial, trial counsel explained that he did not object to that statement because there was no indication that the other robberies mentioned by Boddie were committed by Brown and that his decision not to object was a matter of trial strategy because “clearly you don’t want to bring the jury’s attention to something like that.”

Brown cannot succeed on his ineffective assistance of counsel claim because he cannot overcome the strong presumption that his trial counsel’s decision not to object was a matter of reasonable trial strategy and, thus, cannot show that his counsel was deficient. “Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Punctuation and footnote omitted.) Gray v. State, 291 Ga. App. 573, 579 (2) (662 SE2d 339) (2008). Accord Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). We agree with the trial court that trial counsel’s strategic decision not to object to this testimony does not constitute deficient performance. The denial of Brown’s amended motion for new trial on this ground was not in error.

2. Brown contends that trial counsel should have objected to two exchanges between the State and his girlfriend, Shantressa Swindle. At trial, Swindle testified that Brown was with her at her house on the night of the robbery. When the State asked Swindle why she failed to tell someone that Brown was with her on the night of the robbery, Swindle responded that “I didn’t know he was locked in jail for just that robbery. I thought it was for others too.” Swindle further testified that she did not contact the district attorney’s office to explain that Brown was with her on the night of the Daniel Street Food Mart robbery “[b]ecause the other robberies he’s charged with[,] I knew that if the one came up they would probably come and get me if they knew I had an alibi.” Brown contends that an objection to this testimony was warranted and would have been sustained because Swindle’s testimony improperly impugned his character and had the highly prejudicial effect of suggesting a pattern of menacing behavior.

At the evidentiary hearing on Brown’s amended motion for new trial, trial counsel’s testimony represents some evidence that his decision not to object to these statements was a matter of reasonable trial strategy. Specifically, trial counsel explained that he did not object to Swindle’s statements or request a limiting instruction because “I really wouldn’t want to put more emphasis with the jury on this other robbery issue.” Brown argues on appeal that it made “no strategic sense for defense counsel not to object... because it did not advance Brown’s case in any favorable way.” However, Georgia appellate courts have held that a decision not to object to certain testimony at trial to avoid drawing attention to it is a “legitimate trial strategy that falls within the range of reasonable professional conduct.” (Citation omitted.) Durham v. State, 292 Ga. 239, 241-242 (4) (a) (734 SE2d 377) (2012). Accord Greenwood v. State, 309 Ga. App. 893, 895 (1) (a) (714 SE2d 602) (2011) (“A decision on whether to object when a defendant’s character is placed in issue is a matter of trial tactics and does not equate with ineffective assistance of counsel.”) (punctuation and footnote omitted).

Decided May 16, 2013.

Long D. Vo, for appellant.

Peter J. Skandalakis, District Attorney, Monique L. Fouque, C. Jephson Bendinger, Assistant District Attorneys, for appellee.

Given the strategic nature of counsel’s decision with respect to this evidence, it “can provide no grounds for reversal unless it was so patently unreasonable that no competent attorney would have chosen it.” (Citation, punctuation and footnote omitted.) Mantooth v. State, 303 Ga. App. 330, 336 (1) (b) (693 SE2d 587) (2010). Brown bears the burden of rebutting the strong presumption that this strategy was a reasonable one, made in the exercise of reasonable judgment. Thornton v. State, 301 Ga. App. 784, 793 (4) (689 SE2d 361) (2009). Brown did not carry this burden, and accordingly, the denial of Brown’s amended motion for new trial was not in error.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

        Goolsby v. State, 299 Ga. App. 330, 330-331 (682 SE2d 671) (2009).

       Brown’s three co-defendants pled guilty to attempted armed robbery prior to trial.

       Swindle was called as a defense alibi witness. Her testimony at trial indicating that defendant was involved with other robberies was not responsive to the State’s questioning. See Cochran v. State, 177 Ga. App. 471, 473 (3) (339 SE2d 749) (1986) (witness’s statement that he hadbeen in jail with defendant did not impermissibly place defendant’s character into evidence when the answer of witness was not responsive to the question asked). Further, Swindle’s statements regarding Brown’s involvement with other robberies was fleeting, and the State did not pursue the questioning further. See Hensley v. State, 300 Ga. App. 136, 138 (684 SE2d 673) (2009) (fleeting reference to possible criminal history is harmless).