text:
    A11A1831.
    BIBB v. THE STATE.
    (726 SE2d 534)
   Blackwell, Judge.

Lewis Shane Bibb was tried by an Oconee County jury and convicted of four counts of aggravated child molestation and two counts of child molestation. Bibb now appeals, contending that the evidence is insufficient to sustain his convictions, that the court below erred when it admitted evidence of similar transactions, and that he was deprived at trial of the effective assistance of counsel. We find no merit in these claims of error and affirm.

1. We first consider whether the evidence is sufficient to sustain the convictions. To this end, we ask whether any rational jury could have found proof beyond a reasonable doubt of guilt in the evidence adduced at trial, viewing that evidence in the light most favorable to the verdict. Howard v. State, 310 Ga. App. 659, 659 (1) (714 SE2d 255) (2011). And as we consider this question, we must keep in mind that it is for the jury, not appellate judges, to assess the credibility of witnesses, weigh and draw reasonable inferences from the evidence, and resolve conflicts in the evidence. See Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010). So, if the record contains some competent evidence to prove beyond a reasonable doubt each element of the crimes of which the defendant was convicted, we must uphold the convictions, even if the evidence is controverted. Id.

Bibb was convicted of four counts of aggravated child molestation, each involving Bibb performing oral sex on his preteen, female victim, but the evidence, he says, is sufficient to sustain only two of these convictions. The victim testified at trial, and she explained that Bibb molested her repeatedly over a long period of time, including when she lived in Oconee County for several months. In her testimony, she recounted numerous occasions on which Bibb performed oral sex on her, but she was not always explicit about the county in which each occurred, and Bibb argues that this testimony, therefore, supports no more than two convictions for aggravated child molestation in Oconee County. But the victim also testified that Bibb had a routine, which involved him first kissing her on her lips, then kissing her neck, breasts, stomach, and legs, and finally performing oral sex on her, and she testified that Bibb did “bad things” two or three times a month during the time she lived in Oconee County. A jury reasonably could infer that these “bad things” involved his routine and, therefore, Bibb performing oral sex on the victim. Consequently, given the evidence of a routine and the frequency with which Bibb did “bad things” to the victim, the evidence is sufficient to sustain all four convictions for aggravated child molestation.

2. We next consider the admission of similar transaction evidence. At trial, the court below admitted evidence that Bibb inappropriately touched a young child, that Bibb had relationships with two teenaged girls, and that Bibb maintained a collection of photographs depicting preteen and teenaged girls. When the State seeks to admit evidence of the prior acts of the defendant as a similar transaction, it first must identify a proper purpose for the admission of such evidence, establish that the defendant, in fact, committed the prior acts, and show enough of a similarity or connection between the prior acts and the crimes charged that proof of the former tends to prove the latter. See Pareja v. State, 286 Ga. 117, 119 (686 SE2d 232) (2009); see also Kelley v. State, 308 Ga. App. 418, 421 (2) (707 SE2d 619) (2011). Upon such a showing, a trial court may admit evidence of a similar transaction, unless the probative value of the evidence is substantially outweighed by a risk that it would unfairly prejudice the defendant. Kelley, 308 Ga. App. at 421 (2). When we consider the admission of similar transaction evidence, we focus on the similarities, not the differences, between the prior acts and the crimes charged, and we must bear in mind that the standard for the admission of similar transaction evidence is most liberally construed in cases involving sexual offenses. Gresham v. State, 303 Ga. App. 682, 685-686 (2) (695 SE2d 73) (2010). Whether to admit evidence as a similar transaction is committed to the discretion of the trial court, and absent an abuse of that discretion, we will uphold the decision of a trial court to admit such evidence. See Avila v. State, 289 Ga. 409, 411 (2) (711 SE2d 706) (2011). We see no abuse of discretion here.

(a) One similar transaction involved Bibb touching the breasts and genitals of the younger sister of the victim. Bibb argues that the State failed to show that his touching of the sister was sexual, especially because it occurred while he was giving the sister a bath and might have been incidental to the bath. But the sister testified that Bibb touched her in a way that made her uncomfortable, and we have held before that a sexual intent can be inferred from such acts. See, e.g., Northern v. State, 285 Ga. App. 303, 306 (1) (b) (645 SE2d 701) (2007) (“[T]he testimony of the child molestation victim alone was sufficient to authorize the jury... to infer that he acted with the intent to arouse or satisfy his and her sexual desires”) (citation and punctuation omitted); Malone v. State, 277 Ga. App. 694, 696 (1) (627 SE2d 378) (2006) (same); Duvall v. State, 273 Ga. App. 143, 143 (1) (a) (614 SE2d 234) (2005) (“Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this.”); Cline v. State, 224 Ga. App. 235, 236 (1) (480 SE2d 269) (1997) (sexual intent may be inferred from actions). The admission of this evidence was no abuse of discretion.

(b) Other similar transaction evidence concerned the relationships between Bibb and two teenaged girls. One girl was 16 years of age when she met Bibb, and she testified that Bibb brought her letters, in which he said that he was “in love” with her, that Bibb kissed her on several occasions, and that Bibb tried to get her to spend the night with him. Bibb argues that the evidence of his relationship with this girl was inadmissible because their relationship did not involve sex and because she was, in any event, of the age of consent. We do not agree. As we have explained before, in cases like this one, even when the prior acts of the defendant do not amount to crimes, evidence of those acts may be admissible if it tends to show that the defendant had a lustful disposition with respect to preteen or teenaged girls. See, e.g., Butler v. State, 311 Ga. App. 873, 877 (1) (717 SE2d 649) (2011); Birkbeck v. State, 292 Ga. App. 424, 436 (9) (665 SE2d 354) (2008); Leaptrot v. State, 272 Ga. App. 587, 597 (3) (a) (612 SE2d 887) (2005); Mills v. State, 251 Ga. App. 39, 40 (1) (553 SE2d 353) (2001). Here, the relationship between Bibb and this 16-year-old tends to show that Bibb had such a lustful disposition, and evidence of the relationship was, therefore, admissible.

The second girl was 15 years of age when she met Bibb and married Bibb after her eighteenth birthday. She testified that, before they married, she and Bibb would have sex “every single time [she] was at his house,” but upon her twentieth birthday, Bibb told her that he no longer was interested in sex because she now was “too old for him.” She also corroborated the testimony of the victim about a “routine,” explaining that, when she was with Bibb, he would begin by kissing her, work his way down her body, and then perform oral sex on her. Bibb again argues that this evidence ought not have been admitted because his relationship with the second girl was consensual and not criminal. And again, we disagree, inasmuch as it properly was admissible to show his lustful disposition toward young girls. See, e.g., Butler, 311 Ga. App. at 877 (1); Birkbeck, 292 Ga. App. at 436 (9); Leaptrot, 272 Ga. App. at 597 (3) (a); Mills, 251 Ga. App. at 40 (1). The admission of similar transaction evidence concerning these two girls was no abuse of discretion.

(c) In addition, the court below admitted evidence that Bibb maintained a collection of photographs of preteen and teenaged girls, some of which were labeled with sexual innuendos or comments referring to his preference for preteen or teenaged girls. Bibb argues that his keeping these photographs was no crime and, in any event, that it is not sufficiently similar to his molestation of the victim to be admitted. But this evidence, like the other similar transaction evidence, shows a lustful disposition toward preteen and teenaged girls, and for that reason, it was properly admissible. See Johnson v. State, 222 Ga. App. 722, 724 (2) (475 SE2d 918) (1996) (photographs illustrated lustful disposition and propensity for sexual activity involving children). The admission of the photographs and the testimony about them also was no abuse of discretion.

3. Finally, we turn to the question of the effective assistance of counsel. Bibb contends that his trial lawyer was ineffective and that, at the hearing on his motion for new trial, his original appellate lawyer “negligently waived” his claim of ineffective assistance of trial counsel. We are unconvinced that either amounts to ineffective assistance. The record shows, quite clearly, that after his original appellate lawyer withdrew his claim of ineffective assistance of trial counsel, Bibb acquiesced in the withdrawal of that claim:

[ORIGINALAPPELLATE COUNSEL]:... And I would say, Your Honor, for purposes of the record that after conferring with . . . Bibb’s trial counsel, reviewing the record and talking to Mr. Bibb, we would withdraw the claim of ineffective assistance on the part of trial counsel and proceed today on the general grounds.
THE COURT: Okay, All right, Mr. Bibb, do you understand what [your appellate counsel] has just said?
[BIBB]: Yes, sir.
THE COURT: You understand that this is — you have the opportunity, if you wish, to raise the issue of ineffectiveness of your attorney who represented you at trial. Do you understand that?
[BIBB]: Yes, sir.
THE COURT: And you understand that today would be a day to develop that record and hear evidence, if appropriate, so that the Court could consider and rule on that?
[BIBB]: Yes, sir. . . .
THE COURT: Your counsel said that you wish to withdraw that ground; is that correct?
[BIBB]: Yes, sir.
THE COURT: Has anybody forced you or threatened you to get you to do that?
[BIBB]: No, sir.
THE COURT: [You’re] doing this of your own free will?
[BIBB]: Yes, sir.
THE COURT: And you’ve had enough time to talk to [your appellate counsel] about it?
[BIBB]: Yes, sir.
THE COURT: I’m satisfied then that you’ve made that choice and you understand that this may preclude you at some later time from raising the issue of ineffective assistance —
[BIBB]: Yes, sir.
THE COURT: — assistance of counsel?
[BIBB]: Yes, sir.

Decided March 21, 2012.

W. McCall Calhoun, Jr., for appellant.

Kenneth W. Mauldin, District Attorney, Jon R. Forwood, Brian V. Patterson, Assistant District Attorneys, for appellee.

Bibb does not contend that his original appellate lawyer failed to adequately consult with him or advise him about the withdrawal of his ineffective assistance claim. Accordingly, having acquiesced in that withdrawal, Bibb has waived any claim that his trial lawyer was ineffective. See London v. State, 260 Ga. App. 780, 783 (3) (580 SE2d 686) (2003).

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.

       OCGA§ 16-6-4 (c).

       OCGA§ 16-6-4 (a)(1).

       Bibb appears to concede that the evidence is sufficient to sustain two of his convictions for aggravated child molestation, as well as his convictions for child molestation.

       In the section of his brief that is addressed to the sufficiency of the evidence, Bibb also argues that his indictment was defective because it insufficiently identified, and insufficiently differentiated among, the various occasions that formed the basis for the aggravated child molestation counts. Some of us doubt that this issue is properly raised by the enumerations of error and that we ought to even address the merits of these arguments. See Coweta County v. Simmons, 269 Ga. 694, 694-695 (507 SE2d 440) (1998) (Court of Appeals “has jurisdiction to decide only those issues fairly raised by an enumeration of error”). We all agree, however, that even if Bibb has properly raised the issue, his arguments have no merit because Bibb failed to file a general or special demurrer or timely motion in arrest of judgment, and the failure to file such things waives any claim that could have been raised in a general or special demurrer. See Kirt v. State, 309 Ga. App. 227, 232-233 (3) (709 SE2d 840) (2011); see also OCGA§§ 17-7-110, 17-9-61 (b).

       Bibb was 31 or 32 years old at that time.

       In addition, this girl testified that Bihb told her about the victim, admitting that he had a relationship with the victim that included oral sex and that he “frequently was “intimate” with the victim. This testimony, of course, goes directly to the crimes charged and was admissible without regard to whether the similar transaction evidence concerning this girl was admissible.

       One photograph depicted a 14-year-old girl lying on a bed, and on the photograph, Bibb had written: “Hey... I’m gonna do that thing you like.” Another depicted a 14-year-old girl and was labeled “Coleman Bate [sic],” apparently a play on the term “jail bait” and a reference to Judge Coleman, who previously had chastised Bibb for entering into a relationship with a 16-year-old girl. Yet another photograph depicted several teenaged girls pretending to spank Bibb, on which was written “The Coleman girls.”

       Bibb also contends that he did not have enough time to fully investigate these photographs and develop a strategy for dealing with them, inasmuch as they were identified as evidence only just before trial. But the record shows that the prosecuting attorney did not know of these photographs until Bibb’s wife brought them to the trial, so there was no violation of OCGA§ 17-16-1 et seq. See Taylor v. State, 269 Ga. App. 74, 76 (2) (603 SE2d 504) (2004). And even if there were such a violation, Bibb failed to ask for a continuance to deal with the photographs, which precludes him from arguing on appeal that he was prejudiced by the late production of these photographs. See Gabriel v. State, 280 Ga. 237, 239 (3) (626 SE2d 491) (2006).


source: Caselaw Access Project

author: PHIPPS, Presiding Judge. McFadden, Judge,

license: Public Domain

text:
    A11A2323, A11A2324.
    WHITE v. THE STATE (two cases).
    (726 SE2d 548)
   PHIPPS, Presiding Judge.

After a joint jury trial, Lloyd White and his sister Capucine White were convicted of armed robbery. In Case No. A11A2323, Lloyd White contends that the trial court erred by admitting evidence and by making certain remarks in the jury’s presence. In Case No. A11A2324, Capucine White challenges the admission of evidence, the sufficiency of the evidence, and the denial of her motion to sever her trial. Because neither appellant has demonstrated reversible error, their convictions are affirmed.

The state’s evidence showed that around midnight on September 25,2007, a masked gunman and two unmasked women — all dressed in black clothing — broke into an apartment and demanded money from the occupants. The occupants complied with the intruders’ demands, and within five minutes after bursting through the door, the three intruders fled the apartment with money and a money order that belonged to the occupants.

During the heist, one of the apartment occupants had heard the gunman refer to one of his cohorts as “Davisha”; two of the occupants had recognized one of the intruders as an individual named “Davisha”; and one of those two knew further where Davisha worked and thus reported Davisha’s identification and participation in the heist to police.

Within weeks of the robbery, police had arrested and interviewed the person named Davisha. Although Davisha gave varying accounts of the evening in question, in one account she identified Lloyd White as the masked gunman, and she stated that Capucine White had traveled to the apartment with them, but had waited outside. Davisha was thereafter co-indicted for armed robbery with Lloyd White and Capucine White, but entered a guilty plea to a reduced charge of robbery. As part of her plea deal, as she would later recount at trial, Davisha agreed to appear at her co-indictees’ joint trial as a state’s witness and “[t]o testify truthfully.”

Davisha’s trial testimony continued as follows. At the time of the underlying criminal incident, Capucine White was her girlfriend, and Lloyd White was her close friend. Earlier on the night in question, at the townhouse in which she (Davisha) lived, she, Lloyd White, Capucine White, and two other individuals plotted to go to a specific apartment and rob the occupants. The five discussed wearing black clothing and using a handgun. Accordingly, the five of them then rode to the identified apartment. And while Capucine White and another individual stayed in the car, she, Lloyd White (as the masked gunman) and a third person went inside. After robbing the occupants at gunpoint, the five of them returned to her (Davisha’s) townhouse.

The state also presented as a trial witness Davisha’s younger sister, who was 15 years old at the time of the trial. At the time of the criminal incident, she was 13 years old and living in the same residence as Davisha. The sister had been interviewed by police shortly after Davisha was interviewed. And at trial, Davisha’s younger sister gave testimony that, consistent with Davisha’s trial testimony, implicated Lloyd White and Capucine White in committing armed robbery at the apartment.

In particular, Davisha’s younger sister testified that on the night in question, she was at their townhouse, along with Davisha, Lloyd White, Capucine White, and two others. At about 9:30 p.m., those five individuals discussed money, planned a robbery, and designated an apartment. The five thereafter left the townhouse in a car together; they were wearing black clothing; and Lloyd was carrying a face mask and a handgun. At about midnight, the five returned together to the townhouse, and money was divided amongst three of the five: Lloyd White, Capucine White, and another individual. Davisha, however, had not taken any of the money being divided.

As a similar transaction to show Lloyd White’s bent of mind and course of conduct, the state presented evidence that, in September 2006, Lloyd White was one of two individuals, both dressed in black clothing, who snatched a woman’s purse out of a shopping buggy the woman was pushing in a store. The two individuals ran out of the store. Within about ten minutes, police had apprehended a fleeing suspect, Lloyd White, whom the shopper identified at the scene as one of the two individuals who had accosted her.

Neither Capucine White nor Lloyd White testified. Capucine White presented no witnesses; Lloyd White called two. His mother testified that, from about 7:00 until 9:00 on the night in question, she and Lloyd White were at a Bible study class. And a former co-worker of Lloyd White testified that, at about 10:00 on the night in question, Lloyd White briefly stopped by their place of employment. Neither of Lloyd White’s witnesses, however, accounted for his whereabouts thereafter.

Case No. A11A2323

1. Lloyd White contends that the trial court erred by allowing Davisha to testify, asserting, “It was well known to all parties, including the court itself, that Davisha... had credibility problems.” Lloyd White points out that, during Davisha’s guilty plea hearing held before the same trial judge about six months prior to his trial, both the judge and prosecuting attorney expressed concern that portions of Davisha’s account appeared untruthful and crafted to protect Capucine White. Moreover, Lloyd White points out that at his trial, Davisha testified that she had given false accounts about the night of the robbery — during her guilty plea proceeding and during her police interviews. He argues that the trial court therefore allowed the state to knowingly use false testimony to convict him, and his conviction should be reversed because his constitutional rights were violated.

Lloyd White cites Cammon v. State for the principle: “Conviction of a crime following a trial in which perjured testimony on a material point is knowingly used by the prosecution is an infringement of the accused’s Fifth and Fourteenth Amendment rights to due process of law.” That principle, however, does not provide for a reversal in this case. Lloyd White has not shown that the prosecution knowingly used perjured testimony on a material point. While he has shown that Davisha gave inconsistent accounts of the night in question, as Cammon further recognized, “[t]here is no constitutional requirement that the witnesses upon whom the State relies to prove its case must give consistent evidence.” The fact that a witness’s trial testimony and that witness’s prior account(s) “may have been inconsistent does not render her incompetent to testify, but goes to her credibility as a witness.”

At trial, Davisha acknowledged that she had previously given varying accounts of that evening, testifying that the prior accounts had been false so as to protect Capucine White and Lloyd White. In particular, she acknowledged the following with respect to her police interviews. First, she said in a police interview that two strangers had approached her in the apartment parking lot and asked her to knock on the apartment door so that they (the strangers) could go inside the apartment to rob the occupants. Next, she said during a police interview that she and two of her friends went inside the apartment — but that neither friend was Lloyd White. Also, during a police interview, she said that she, Lloyd White, and another woman had gone to the apartment and robbed the occupants. At trial, Davisha acknowledged the following with respect to her plea hearing. She testified that, during that hearing, she had told the truth “somewhat.” Although she had said that Capucine White had been one of the five who traveled to the apartment parking lot and that she (Davisha), Lloyd White, and a third person had gone into the apartment to rob the occupants, she had stated, untruthfully, that Capucine White had not participated in their prior planning to rob the apartment occupants.

Hence, the jury had the benefit of Davisha’s trial testimony and her prior inconsistent accounts. And the jury was aptly instructed to decide for itself which version, if any, was the truth, and which ones were fabrications. Given these circumstances,

[t]he applicable constitutional guarantee is the Sixth Amendment right to a trial before an impartial jury for a determination of the credibility of the State’s case and defendant’s defense. Here, the convictions are not based upon the State’s knowing use of perjured testimony, but upon that version of the events most unfavorable to [Lloyd White], which version the jury accepted after hearing all the evidence and resolving the credibility of all of the witnesses.

Lloyd White has thus failed to show that the trial court erred by allowing Davisha to testify.

2. Lloyd White contends that the trial judge violated OCGA § 17-8-57, which provides in pertinent part, “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.”

Lloyd White claims that a violation occurred when Capucine White’s attorney was cross-examining Davisha about whether even her trial account was false in an attempt to curry favor with the state. The attorney asked:

Q: And you know that one way to get a light sentence here is to help —.
A: Tell the — .

The prosecutor interrupted Davisha’s answer with an objection that defense counsel was “mischaracterizing the deal with [Davisha].... It’s that she testify truthfully.” The trial court remarked to defense counsel, “She’s supposed to tell the truth, not to help — she’s not — she’s just supposed to tell the truth. You want to characterize it in a different way.” The lawyer thus resumed the inquiry:

Q: Do you want to help the prosecution?
A: Tell the truth, yes.

On appeal, Lloyd White complains that the trial court’s remarks violated OCGA § 17-8-57 because they “appeared both to endorse the State’s characterization of its agreement with the witness and to bolster her credibility.” Unquestionably, “we strongly discourage the giving of direction or the use of language that could create the appearance of alignment between the trial court and either the prosecution or defense.” But we disagree with Lloyd White that the cited remarks violated OCGA § 17-8-57. The complained-of remarks did not “express or intimate [the trial judge’s] opinion as to what has or has not been proved or as to the guilt of the accused”; rather, when considered in context, they amounted to a proper exercise of the trial court’s duty to manage the trial proceedings.

3. Lloyd White contends that the trial court erred by allowing the jury to hear an audiorecording, admitted as State’s Exhibit 25, that contained the police interview of Davisha’s younger sister. The trial court overruled defense objections, accepting the state’s claim that the recording was admissible to show that the sister had made both prior inconsistent statements and prior consistent statements. Lloyd White argues on appeal that playing the recording was error because the state failed to provide an appropriate foundation for any statement thereon to be considered as either a prior inconsistent statement or a prior consistent statement.

(a) With regard to the requisite foundation for prior inconsistent statements, Lloyd White points out that our Supreme Court has set forth three foundational requirements:

First, the prior statement must contradict or be inconsistent with the witness’s in-court testimony; second, the prior statement must be relevant to the case; and, third, the examining attorney must lay the proper foundation with the witness. The purpose of the foundation requirement is to give the witness an opportunity to admit, explain, or deny the prior contradictory statement.

Lloyd White complains that the third requirement was not met, pointing out that the recording was played after Davisha’s younger sister testified and after she was released from subpoena.

It is axiomatic, however, that “[h]arm as well as error must be shown to authorize a reversal by this court.” “[Lloyd White] has failed to satisfy his burden to show harmful error affirmatively by the record.” He has neither cited any statement, nor shown the extent to which any prior statement presented to the jury was inconsistent with any aspect of Davisha’s younger sister’s trial testimony. While the recording of the entire interview was made a part of the appellate record, Lloyd White acknowledges that the recording of “[Davisha’s younger sister’s] interview, State’s Exhibit 25, was not played for the jury in its entirety.” What is more, the appellate record contains no transcription of whatever portion was played for the jury. “[W]here the transcript does not fully disclose what transpired in the trial court, the burden is on the complaining party to have the record completed pursuant to OCGA§ 5-6-41.” Lloyd White has failed to do so; consequently, with regard to what the jury heard, there is “nothing to review.” We will not speculate whether, and to what extent, the jury heard any prior inconsistent statement(s) so prejudicial that Lloyd White’s conviction must be reversed. “Where the appellants have failed to show harm or prejudice, we find no reversible error.”

(b) Lloyd White contends also that the state failed to establish the requisite foundation for introducing a prior consistent statement, and that therefore, the trial court erred by allowing the jury to hear the recording on the ground that it contained prior consistent statements. Lloyd White asserts that any prior consistent statement impermissibly bolstered the credibility of the witness.

Again, Lloyd White has demonstrated no reversible error. He has not cited this court to any statement; nor has he shown the extent to which any prior statement presented to the jury was consistent with any aspect of Davisha’s younger sister’s trial testimony and thereby impermissibly bolstered it. Under the analysis set forth in Division 3 (a), we will not speculate whether, and to what extent, the jury heard any prior consistent statement(s) so prejudicial that reversal of Lloyd White’s conviction is warranted.

Case No. A11A2324

4. Capucine White also contests the admissibility of State’s Exhibit 25, the audiorecording containing Davisha’s younger sister’s police interview; she asserts the same foundational arguments as Lloyd White.

Capucine White also acknowledges that the recording of “[Davisha’s younger sister’s] interview, State’s Exhibit 25, was not played for the jury in its entirety.” Yet, she has not cited any statement, nor shown the extent to which any prior statement presented to the jury, was prejudicial. As stated above, the appellate record of the j oint trial contains no transcription of what was played for the jury. And Capucine White did not compile a record demonstrating what transpired in the trial court with regard to this alleged error; consequently, there is “nothing to review.” We will not speculate whether, and to what extent, the jury heard any prior statement(s) so prejudicial that reversal of Capucine White’s conviction is warranted.

5. Capucine White contends that the trial court erred by allowing Davisha to testify, asserting the same arguments as Lloyd White. Under the analysis set forth above, no such error has been shown.

6. Capucine White challenges the sufficiency of the evidence to support her armed robbery conviction on the ground that it rested solely on the testimony of an accomplice, Davisha, in violation of OCGA § 24-4-8. In light of Davisha’s younger sister’s testimony — concerning Capucine White’s participation with others in planning a robbery at a certain apartment, preparing for the robbery, leaving and returning with the others, then receiving a share of money being divided, there is no merit in this contention.

7. Capucine White contends that the trial court erred by not granting her motion to sever her trial from that of her co-defendant. She claims that her armed robbery conviction was a result of the prejudicial spillover effect of evidence against her co-defendant, citing the similar transaction evidence admitted only against the co-defendant and evidence that only the co-defendant was holding a gun during the robbery.

The following three factors must be considered by a trial court when exercising its discretion in regard to a motion to sever in a case in which the death penalty is not sought:

(1) Will the number of defendants create confusion as to the law and evidence applicable to each? (2) Is there a danger that admissible evidence against one defendant will be considered against the other despite the court’s instructions? (3) Are the defenses antagonistic to each other or to each other’s rights?

In this case, there was no showing that any confusion was engendered by the number of defendants or by the applicable law. The record reflects that the trial court properly instructed the jury that the similar transaction evidence could be “considered for the limited purpose of showing, if it does, the bent of mind and course of conduct of a defendant----[T]his evidence is offered as to Lloyd White and not Capucine White. Such evidence, if any, may not be considered by you for any other purpose.” The trial court provided ample instructions on principles of parties to a crime. The defenses of Capucine White and her brother have not been shown as antagonistic; “neither attempted to point the blame at the other. They simply argued that the prosecution had failed to meet its burden of proof.” And although Capucine White asserts that the joint trial harmed her because the evidence against her brother was stronger than the evidence against her, “it is not enough for the defendant to show that [s]he would have a better chance of acquittal at a separate trial or that the evidence against a co-defendant is stronger. The defendant must show clearly that a joint trial prejudiced [her] defense, resulting in a denial of due process.” Capucine White has made no such showing. Accordingly, she has not demonstrated that the trial court abused its discretion in denying her motion for a separate trial.

Decided March 21, 2012.

Stephen R. Scarborough, for appellant (case no. A11A2323).

Raina J. Nadler, for appellant (case no. A11A2324).

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

Judgments affirmed.

Andrews, J., concurs. McFadden, J., concurs fully and specially.

McFadden, Judge,

concurring fully and specially.

I concur fully in the majority opinion. I write separately to point out the General Assembly’s direction that, “It shall be the court reporter’s duty ... when directed by the judge, to record exactly and truly or take stenographic notes of the testimony and proceedings in the case tried, except the arguments of counsel.” OCGA § 15-14-1 (emphasis supplied). Of course there may be a variety of ways to discharge that duty. See Robertson v. State, 268 Ga. 772, 778 (15) (493 SE2d 697) (1997); State v. Knowles, 247 Ga. 218 (274 SE2d 468) (1981). And the parties have a related responsibility to preserve error. But the playback of recorded material during a trial constitutes a part of the “proceedings in the case.” Consequently a court reporter’s statutory duty to create a transcript which, in conjunction with the rest of the record, is “complete and accurate enough to afford a full and fair review by the [appellate courts]” extends to the playback of recorded material. See Knowles, supra.

       269 Ga. 470 (500 SE2d 329) (1998).

       Id. at 471 (2) (citation and punctuation omitted).

       Id.

        Hayes v. State, 152 Ga. App. 858 (2) (264 SE2d 307) (1980).

       See Griffin v. State, 262 Ga. App. 87, 88 (1) (585 SE2d 145) (2003) (even though a witness may recant on the stand, her prior inconsistent statements constitute substantive evidence on which the jury may rely).

        Gammon, supra; see Harrison v. State, 257 Ga. 528, 529-530 (1) (361 SE2d 149) (1987) (rejecting claim that state obtained death sentence by use of perjured testimony, where, inter alia, prosecutor had reason to believe that witness’s prior testimony was true, jury had benefit of witness’s present testimony and previous inconsistent testimony, and jury was properly given opportunity to decide which version was the truth); Ward v. State, 205 Ga. App. 504, 507 (3) (423 SE2d 288) (1992) (witness’s prior inconsistent statements related to witness’s credibility, but did not require suppression of witness’s testimony because it was not proved that witness’s trial testimony was false, and witness’s credibility was properly left to jury under proper instructions from court).

        Cammon, supra; Harrison, supra; Ward, supra; see also Hayes, supra (trial court’s determination of witness competency will not be disturbed on appeal in the absence of an abuse of discretion).

       See Patel v. State, 282 Ga. 412, 413 (2), n. 2 (651 SE2d 55) (2007) (“any alleged violation of OCGA § 17-8-57 must be reviewed in accordance with the ‘plain error’ rule”) (citation and punctuation omitted); see further Ledford v. State, 289 Ga. 70, 85 (14) (709 SE2d 239) (2011) (a violation of OCGA § 17-8-57 constitutes “plain error,” and “on appeal, the issue is simply whether there was such a violation”) (citation and punctuation omitted).

        State v. Gardner, 286 Ga. 633, 635 (690 SE2d 164) (2010).

       OCGA§ 17-8-57.

       See Ledford, supra (statement was not an improper comment, but a proper exercise of the trial court’s duty to manage the trial proceedings and to ensure the well-being of jury); Walker v. State, 282 Ga. 774, 777 (4) (653 SE2d 439) (2007) (comments made in the course of ruling on objections are generally not the type of comments prohibited by OCGA § 17-8-57), disapproved on other grounds, Ledford, supra; Appling v. State, 281 Ga. 590, 592 (4) (642 SE2d 37) (2007) (mere explanation of trial court’s ruling upon an objection did not constitute the type of judicial comment prohibited by OCGA § 17-8-57); Whitner v. State, 276 Ga. 742, 744-745 (3) (584 SE2d 247) (2003) (comments made in an “attempt to regulate the proceedings” generally are not impermissible comments on the evidence) (cited by Ledford, supra), disapproved on other grounds, Ledford, supra; Hufstetler v. State, 274 Ga. 343, 345 (2) (553 SE2d 801) (2001) (‘Under these circumstances, no reasonable juror would have interpreted the trial court’s remark as the expression of an opinion on any issue to be decided in the case.”).

        Duckworth v. State, 268 Ga. 566, 567 (1) (492 SE2d 201) (1997) (footnotes omitted; emphasis supplied).

        Robinson v. State, 229 Ga. 14, 15 (1) (189 SE2d 53) (1972) (citation and punctuation omitted); O’Neal v. State, 237 Ga. App. 51, 54 (2) (513 SE2d 50) (1999).

        Smith v. State, 266 Ga. 827, 829 (3) (470 SE2d 674) (1996).

        Glass v. State, 289 Ga. 542, 545 (2) (712 SE2d 851) (2011) (citations omitted) (when a portion of the transcript is lost or destroyed, OCGA § 5-6-41 allows parties to re-create the transcript from memory and allows for the trial court to do so when the parties cannot agree).

       This case was docketed in this court on August 10, 2011.

        Glass, supra (citations and punctuation omitted); see Crawford v. State, 288 Ga. 425, 426-427 (2) (a) (704 SE2d 772) (2011).

       See Westmoreland v. State, 287 Ga. 688, 696-697 (10) (699 SE2d 13) (2010) (appellant failed to show reversible error affirmatively by the record, where appellant contended that trial court erred in admitting photographs, but appellant failed to identify to the appellate court which of the hundreds of photographs admitted were allegedly objectionable ones so as to allow the appellate court to isolate them for review of appellant’s claim; court was without information as to the content of the allegedly objectionable photographs; it is not appellate court’s job to cull the record on behalf of a party).

        Marshall v. State, 239 Ga. 101, 103 (2) (236 SE2d 58) (1977) (emphasis supplied).

        Duggan v. State, 285 Ga. 363, 366 (2) (677 SE2d 92) (2009) (concerning admissibility of a prior consistent statement).

       Supra.

       See Westmoreland, supra.

       See Division 3, supra.

       See OCGA § 5-6-41; Glass, supra; Crawford, supra. This case was docketed in this court on August 10, 2011.

        Glass, supra (citations and punctuation omitted); see Crawford, supra.

       See Westmoreland, supra.

       See Division 1, supra.

       See Division 1, supra.

       “[In] felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient.”

       See Jackson v. State, 289 Ga. 798, 800-802 (716 SE2d 188) (2011); Teasley v. State, 288 Ga. 468, 469 (704 SE2d 800) (2010) (mere presence at the crime scene is insufficient to show participation in the crime; however, a person who does not directly commit a crime may he convicted upon proof that a crime was committed and that person was a party to it; whether a person was a party to a crime can be inferred from his presence, companionship, and conduct before and after the crime was committed).

        Williams v. State, 280 Ga. 584, 587 (3) (630 SE2d 370) (2006) (punctuation and footnote omitted).

        Moon v. State, 288 Ga. 508, 510 (2) (705 SE2d 649) (2011).

        Herbert v. State, 288 Ga. 843, 845 (2) (708 SE2d 260) (2011) (citations omitted).

       See Moon, supra; Herbert, supra; Williams, supra at 587-588 (3).


author: BARNES, Presiding Judge.

text:
    A09A2373.
    BENCHMARK BUILDERS, INC. v. SCHULTZ et al.
    (726 SE2d 556)
   BARNES, Presiding Judge.

In Benchmark Builders v. Schultz, 302 Ga. App. 888 (691 SE2d 916) (2010), we upheld the award of attorney fees to Stephen and Elizabeth Schultz holding that Benchmark Builders, Inc. had waived any claim that the award under OCGA § 13-6-11 was improper by failing to object to the verdict form. The Supreme Court of Georgia reversed our decision, finding that absent an award of actual damages, a party who fails to object to the verdict form does not waive a claim that an award of attorney fees under OCGA § 13-6-11 is improper. Benchmark Builders v. Schultz, 289 Ga. 329 (711 SE2d 639) (2011). The Supreme Court further concluded that “[a]n award of attorney fees but no other damages . . . under a statute that authorizes an award of attorney fees to the ‘prevailing party’ is illegal and void, not merely erroneous and voidable.” (Citations omitted; emphasis supplied.) Id. at 330 (1). Accordingly, our ruling is vacated, and the judgment of the Supreme Court is made the judgment of this court.

The Supreme Court remanded the case to this court to determine whether the award of attorney fees was permissible under the parties’ contract rather than under OCGA § 13-6-11. Benchmark Builders, 289 Ga. at 330 (2). Because the contract permitted attorney fees as a separate claim, we affirm the trial court’s award of attorney fees.

The facts of this case are more fully detailed in our prior opinion, and need not be set forth in their entirety again. The facts relevant to our present review show that Benchmark sued the Schultzes for breach of contract, and the Schultzes filed a counterclaim for breach of contract, seeking to recover earnest money and attorney fees. The jury returned a verdict finding that the Schultzes did not breach the contract, and also found in favor of the Schultzes on their counterclaim. The jury awarded the Schultzes no actual damages, but awarded $16,552 in attorney fees. Benchmark challenged the verdict on appeal arguing that because the Schultzes received no money damages they were not the “prevailing party” and thus not entitled to attorney fees under OCGA § 13-6-11.

Upon review, we find that attorney fees were authorized to the “prevailing party” as a separate claim under the parties’ contract.

Where the contract provides for an award of fees, the legal principles governing an award under [OCGA] § 13-6-11 . . . are inapplicable. Thus, in the absence of a controlling statute, a party’s entitlement to attorney fees under a contractual provision is determined by the usual rules of contract interpretation.

Benchmark Builders, 289 Ga. at 330-331 (2), citing John K. Larkins, Jr., Georgia Contracts Law and Litigation § 12-29 (a).

The contract at issue in this case provides:

If any action at law or in equity ... is brought to enforce or interpret the provisions of this agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees from the other party, which fees may be set by the court in the trial or appeal of such action or may be enforced in a separate action brought for that purpose and which fees shall be in addition to any other relief which may be awarded.

(Emphasis supplied.)

Benchmark argues that the “prevailing party” is the one who obtains more than a finding that the other party breached the contract but also obtains “actual relief on the merits [that] materially alters the legal relationship between the parties by modifying the defendant’s behavior in any way that directly benefits the plaintiff.” Magnetic Resonance Plus v. Imaging Systems Intl., 273 Ga. 525, 529 (3) (543 SE2d 32) (2001). See Hutchinson v. Composite State Bd. of Med. Examiners, 263 Ga. 186, 187 (2) (429 SE2d 661) (1993). Magnetic, however, is distinguishable from the current case because the contract in Magnetic did not present attorney fees as a separate and distinct claim.

Here, the plain language of the contract does not limit the definition of “prevailing party” to a party who recovers monetary damages. The contract specifies that the party who prevails in an action to enforce or interpret the contract shall be entitled to recover attorney fees, either in that action or another action brought for that purpose. Here, per the verdict form, the jury clearly found for the Schultzes in the original claim filed by Benchmark and the couple’s counterclaim. Although the jury awarded no actual damages in relation to the Schultzes’ “claim for providing light fixtures” and “claim for the return of the earnest money,” the jury awarded the Schultzes $16,552 on their third “claim for Attorney Fees,” which was permitted per the contract based on their prevailing under the two other claims.

Decided March 22, 2012

Varner & Adams, G. E. Bo Adams, for appellant.

Bush, Crowley, Leverett & Leggett, J. Wayne Crowley, for appellees.

Accordingly, we conclude that the contract between the Schultzes and Benchmark contained a provision which gave rise to a separate and distinct claim for attorney fees by the prevailing party upon any litigation. Thus, because the jury returned a verdict in favor of the Schultzes on their counterclaim and Benchmark’s original claim, the couple was entitled as the “prevailing party” to maintain a separate claim per the contract for attorney fees. Accordingly, the judgment by the trial court denying the motion to amend the verdict was correct and is affirmed.

Judgment affirmed.

Andrews and Miller, JJ., concur.

       OCGA§ 13-6-11 provides as follows:
      The expenses of litigation generally shall not he allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

       The contract in Magnetic stipulated:
      In the event any proceeding or lawsuit is brought by [Magnetic Resonance Plus, Inc.] or (customer) in connection with the Agreement, the prevailing party in such proceeding shall be entitled to receive its . .. reasonable attorney’s fees.
      (Punctuation omitted.) Magnetic, 273 Ga. at 525.


author: McFadden, Judge.

text:
    A11A0217.
    CARDINALE v. CITY OF ATLANTA et al.
    (726 SE2d 600)
    Decided March 22, 2012.
    Matthew Cardinale, pro se.

   McFadden, Judge.

The decision of the Court of Appeals in this case having been reversed in part by the Supreme Court, Cardinale v. City of Atlanta, 290 Ga. 521 (722 SE2d 732) (2012), our decision in Cardinale v. City of Atlanta, 308 Ga. App. 234 (706 SE2d 692) (2011), is hereby vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and Andrews, J., concur.

Amber A. Robinson, Kristen E. Brooks, for appellees.


author: McFADDEN, Judge.

text:
    A11A0695.
    PRESCOTT v. THE STATE.
    (726 SE2d 599)
    Decided March 22, 2012.

      Robert L. Persse, Stuart H. Patray, William D. Hoffer, for appellant.

      Richard A. Mallard, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellee.
   McFADDEN, Judge.

In Prescott v. State, 309 Ga. App. 541 (710 SE2d 672) (2011), we reversed Richard Jerome Prescott’s child molestation conviction. In Division 1 of the opinion, we held that competent testimony proved the victim’s age, but in Division 2, we held that the state failed to prove venue. The Supreme Court granted certiorari and, in State v. Prescott, 290 Ga. 528 (722 SE2d 738) (2012), reversed our judgment, holding that the evidence, albeit circumstantial, was sufficient to prove venue beyond a reasonable doubt. Therefore, Division 2 of our opinion and our judgment in Prescott, 309 Ga. App. 541, is vacated, the judgment of the Supreme Court is made the judgment of this court, and Prescott’s conviction is affirmed.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


text:
    A11A1717.
    DUNCAN v. THE STATE.
    (726 SE2d 558)
   BARNES, Presiding Judge.

Robert Duncan appeals from the denial of his motion for new trial following his conviction for criminal attempt to commit child molestation. He contends on appeal that the trial court erred in denying his motion to exclude his confession because it was coerced in violation of OCGA § 24-3-50, that the trial court erred in admitting into evidence a statement regarding homosexual ideation from when he was “an adolescent,” and that his trial counsel was ineffective. Upon review, and discerning no reversible error, we affirm.

Viewed in favor of the jury’s verdict, the evidence shows that while Duncan was babysitting the ten-year-old victim, the two fell asleep together on the sofa. The victim was lying in front of Duncan, and awakened when he felt Duncan’s hand on the front of his pants near his penis. The victim testified that he purposefully inhaled loudly, and Duncan quickly moved his hand. The victim fell asleep again, and awakened when he felt pressure on the knot securing his sweatpants. He discovered that his sweatpants were no longer knotted. When the victim told Duncan he was going to bed, Duncan asked him to stay, and the victim refused and went to his room.

A different victim came forward and said that when he was around 14 years old Duncan babysat him as well, and had asked him to lie on the sofa with him on several occasions. On one occasion, as the two lay together, Duncan placed his hand on the victim’s thigh and moved it up toward his crotch. The trial court directed a verdict as to the two counts associated with this victim because the indictment had alleged that Duncan touched the second victim’s penis.

1. Duncan first contends that the trial court erred in denying his motion to exclude certain statements made to police on the basis that they were induced contrary to OCGA § 24-3-50. The video was shown to the court below at the Jackson-Denno hearing, but no copy of the video appears in the record on appeal. After the hearing and viewing the videotape, the trial court ruled that considering the totality of the circumstances, Duncan’s videotaped statements were voluntarily and freely given and admissible, subject to the redaction of references to a “truth verification test.” The videotape, however, was not entered into evidence at trial. Instead, the investigator who questioned Duncan testified that Duncan admitted that he “intentionally untied [the victim’s] pajama pants” and that “he wasn’t sure what his intentions were, but that... he did get a sick feeling when he was doing it.”

Duncan was working at the Camden County’s sheriffs office as a detention officer when he was brought in for questioning. Two sheriffs department employees questioned Duncan — an investigator and a captain. The captain supervised “noncertified personnel” in the sheriff’s office, including Duncan. Duncan complains about the following exchange that apparently occurred on the videotape and was introduced through the investigator’s testimony:

Q: Now, [Duncan] was told on the night by [the captain] that what he was looking at was either losing his job or going to jail, correct?
A: That was on the tape, yes.
Q: All right. And he also suggested to Robbie that he’d rather him just tell him something, even if it’s embarrassing him, come forth and tell him something about he’s sorry — by saying he’s sorry in order to get him to talk, correct?
A: Yes, sir.
Q: He indicated that if he would talk to him he would not be arrested, that he could pack up and leave — pack up his things, not come back, and that it would either be up to the Sheriffs Department or the DA’s office as to what to do —
A: Yes, sir. . . .
Q: But in that particular case he was not going to be arrested ... if he talked?
A: Yes, sir.
Q: But if he didn’t talk, he was going to be arrested, correct?
A:... I don’t believe he was told that if he didn’t talk he was going to jail.

Under Georgia law, only voluntary incriminating statements are admissible against the accused at trial, and the State has the burden of proving the voluntariness of a confession by a preponderance of the evidence. OCGA § 24-3-50 requires that an admissible confession “must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” The promise of a benefit that will render a confession involuntary under OCGA § 24-3-50 must relate to the charge or sentence facing the suspect. “Generally, the ‘hope of benefit’ to which the statute refers has been construed as a hope of lighter punishment.” (Citations and punctuation omitted.) Foster v. State, 283 Ga. 484, 485 (2) (660 SE2d 521) (2008). Exhortations to tell the truth are not a hope of benefit that renders a confession inadmissible under OCGA § 24-3-50. Id. at 486 (2). Likewise, “a mere ‘truism’or recounting of facts,” Anderson v. State, 224 Ga. App. 608, 610 (1) (481 SE2d 595) (1997), or an officer’s promise that he “would see about getting the defendant home once defendant made a statement” do not implicate the provisions of OCGA§ 24-3-50. In the Interest of D. T., 294 Ga. App. 486, 489 (2) (669 SE2d 471) (2008).

Without the videotape, we are limited in our ability to review the statement within the full context of Duncan’s interrogation. That he might be fired was true and was simply a recounting of fact, and, as noted above, we have found that the promises of being allowed to go free or go home are not prohibited by the statute. Thus, based on our review of the statements provided during the trial, the trial court did not err in determining that Duncan’s admission was not made because of a promise of benefit within the meaning of OCGA § 24-3-50.

Moreover, “ [f] actual and credibility determinations ... made by a trial judge after a voluntariness hearing must be accepted by appellate courts unless such determinations are clearly erroneous.” (Citations and punctuation omitted.) Tucker v. State, 231 Ga. App. 210, 212 (1) (a) (498 SE2d 774) (1998). Since the trial court’s pre-trial determination of voluntariness is supported by a preponderance of the evidence, it is not clearly erroneous and will not be disturbed on appeal. Id.

2. Duncan also contends that the trial court erred in admitting his statement that he had “a problem with homosexual pornography in the computer” from the age of 12 to 16, then later lost interest. We do not agree. Duncan, who was 21 at the time of the trial, admitted in a statement to police that he had watched and been aroused by homosexual pornography from the age of 12 until he was 16.

“[I]f evidence is relevant, no matter how slightly, it generally should be admitted and its weight left to the jury.” (Citations and punctuation omitted.) Kelley v. State, 233 Ga. App. 244, 250 (4) (503 SE2d 881) (1998). We have “consistently held in child molestation cases that [materials] showing natural and unnatural sex acts... can have a tendency to show a bent of mind toward similar sexual activity. This [evidence] is admissible to show bent of mind and lustful disposition.” (Punctuation omitted.) Burris v. State, 204 Ga. App. 806, 808 (1) (420 SE2d 582) (1992).

Accordingly, we find no error in the admission of this statement.

3. Duncan also contends that his trial counsel was ineffective for failing to oppose the State’s notice of similar transaction evidence and failing to request a severance of the trial of offenses committed against the two victims. He asserts that trial counsel was ineffective for failing to move to sever Counts 3 and 4, which involved the alleged acts against the second victim. Duncan’s trial counsel did not testify at the motion for new trial hearing.

Whether trial counsel was ineffective is a two-part test, considering first whether counsel performed reasonably under prevailing professional norms, and second, whether counsel’s deficient performance prejudiced the defense. Wadley v. State, 258 Ga. 465, 466-467 (3), (4) (369 SE2d 734) (1988). The defendant establishes prejudice by showing that, but for counsel’s inadequate performance, there is a reasonable probability the result would have been different, and if the defendant suffers no prejudice, it does not matter whether counsel’s performance was adequate. Nelson v. State, 255 Ga. App. 315, 322-323 (10) (565 SE2d 551) (2002). Thus, we need not address both components if the defendant makes an insufficient showing on one. Id.

There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and ... [a] trial court’s determination that a defendant has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

(Punctuation and footnotes omitted.) Collier v. State, 266 Ga. App. 345, 351 (2) (596 SE2d 795) (2004). Guided by these principles, we conclude that the trial court committed no error in finding that trial counsel was not ineffective.

When two or more crimes of the same general nature are committed against different persons, at different times and places, and are charged in separate counts of an indictment, severance is mandatory upon the defendant’s motion if the crimes are joined solely because they are of the same or similar character. If the offenses are not joined solely because they are of the same or similar character, and evidence of one charged offense would be admissible as a similar transaction during trial on another charged offense, the trial court is vested with discretion in deciding whether to grant a motion to sever.

(Citations omitted; emphasis in original.) Machiavello v. State, 308 Ga. App. 772, 773 (2) (709 SE2d 28) (2011).

In this case, although the charged offenses involved different victims and occurred on different dates, they were admissible to show Duncan’s common motive, lustful disposition, and bent of mind to satisfy his sexual desires. The molestation allegations involving the second victim came to light during the investigation of the molestation of the first victim. The trial court would have been authorized to find that the circumstances related to Duncan’s molestation of either child victim would have been admissible as similar transaction evidence in his trial involving the molestation of the other, and to have denied a motion to sever on that ground. See Boatright v. State, 308 Ga. App. 266, 274 (2) (707 SE2d 158) (2011) (“Where evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying appellant’s motion for severance.”).

Decided March 22, 2012.

Grayson P. Lane, for appellant.

Jacquelyn L. Johnson, District Attorney, Katie M. Udy, Assistant District Attorney, for appellee.

Trial counsel will not be found ineffective for failing to file a futile motion. Johnson v. State, 159 Ga. App. 333 (2) (283 SE2d 375) (1981). Thus, we cannot say that the trial court erred in finding that trial counsel was not ineffective and in denying Duncan’s motion for new trial.

Judgment affirmed.

Adams, J., concurs. Blackwell, J., concurs in Divisions 1 and 3 and in judgment.

       There is no error in trial counsel’s failure to oppose the State’s notice of similar transaction evidence because the record does not reflect that the State filed a notice of similar transaction evidence.


author: PHIPPS, Presiding Judge.

text:
    A11A1879.
    MINNESOTA LAWYERS MUTUAL INSURANCE COMPANY v. GORDON et al.
    (726 SE2d 562)
   PHIPPS, Presiding Judge.

Minnesota Lawyers Mutual Insurance Company (MLM) appeals from the trial court’s order granting summary judgment to Pamela Y. Gordon, Courtney Harris, individually and d/b/a Windy Peach Properties, LLC (Harris), and others in MLM’s declaratory judgment action. MLM contends that although it denied coverage to its insured, Gordon, because it had asserted a proper claim for rescission of the underlying insurance policies, it was entitled to a trial on that claim. We disagree and affirm.

The facts are not in dispute. MLM issued liability insurance policies to Gordon, an attorney. Gordon acted as the closing agent in a November 2005 sale of property owned by Harris. Gordon called on MLM to provide a defense and liability coverage for claims asserted against her by Harris and others arising out of the closing. MLM initially provided a defense to Gordon, but reserved its rights under the policies.

On March 9, 2007, MLM filed a complaint for declaratory judgment against the Defendants. MLM contended that the liability policy it issued to Gordon, effective June 6, 2005 to June 6, 2006 (the “first policy”) excluded coverage for Gordon’s fraudulent and criminal acts. MLM sought a declaration that it had no liability to the Defendants with respect to the claims arising out of the closing or for Gordon’s alleged failure to pay off certain debt encumbering Harris’s property, and that it had no obligation to defend Gordon.

MLM amended the complaint five times. The first amendment sought a declaration that the policy MLM issued to Gordon effective June 6, 2006 to June 6, 2007 (the “second policy”) was void ab initio, and that the first policy and the second policy were both void. MLM also interpleaded certain premiums paid on the first policy and the second policy. After Harris filed a counterclaim, MLM filed a second amended complaint asserting claims for damages against Harris for civil conspiracy and fraud. In its third and fourth amendments to the complaint, respectively, MLM added as defendants the title insurance company and a surviving spouse of one of the original defendants. In the fifth amendment to the complaint, MLM added a claim that “[a] declaratory judgment should issue holding the First and Second Policies of insurance void as to Gordon and as to the other parties to this suit.” According to MLM, Gordon made misrepresentations to MLM in applying for the first policy and the second policy, and those misrepresentations were material to MLM’s decision to issue the policies and entitled MLM to void the policies.

On September 2, 2010, MLM sent Gordon a letter notifying her that MLM was denying coverage, withdrawing a defense, and voiding the first and second insurance policies. Two weeks later, Harris moved to dismiss MLM’s complaint or, alternatively, for summary judgment. MLM waived its right to 30 days’ notice, and the trial court heard arguments on Harris’s motion on September 20, 2010. The following day, the trial court held a bench trial on MLM’s claims against Harris for civil conspiracy and fraud. The trial court then entered a final order denying MLM’s claims against Harris, granting summary judgment to the defendants on MLM’s declaratory judgment claim, and dismissing any claims by or against other parties.

On appeal, MLM contends that it had asserted a claim to rescind or void the insurance policies which was not rendered moot by its denial of coverage to Gordon, and the trial court therefore erred in dismissing its claim to void the policies and interplead the premium funds. That MLM could not proceed with a declaratory judgment claim was established by evidence of its correspondence to Gordon denying coverage, withdrawing its defense of Gordon in a separate action, and voiding the first policy and the second policy. As our Supreme Court has said,

where the rights of the parties have already accrued and there are no circumstances showing any necessity for a determination of the dispute to guide and protect the plaintiff from uncertainty and insecurity with regard to the propriety of some future act or conduct... the plaintiff is not entitled to a declaratory judgment.

In other words, declaratory judgment affords protection from uncertainty as to future conduct, not from the adverse consequences of actions already undertaken.

MLM argues that in addition to its declaratory judgment claim it also asserted claims to void the policies which constituted a claim for rescission. Although the word “rescind” does not appear in the complaint, “[cjourts refrain from attaching too much importance to the merely formal parts of a complaint and construe pleadings so as to do substantial justice.” But our review of the complaint, as amended, shows it to be in substance what it claims to be.

In its complaint, MLM maintained that “[a] declaratory judgment is necessary to guide and protect MLM, from uncertainty and insecurity with respect to . . . the duty ... of providing a defense to [Gordon] ... and the duty ... of satisfying any judgment... against [Gordon].” While a declaratory judgment is authorized when circumstances show “a necessity for a determination of the dispute to guide and protect the plaintiff from uncertainty and insecurity with regard to the propriety of some future act or conduct,” rescission is not characterized by uncertainty. To the contrary, “[i]f a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it.” Here, rather than firmly announcing its purpose, MLM complained that “MLM believes it is not obligated to provide liability coverage or a defense . . . [and] has issued a reservation of rights to [Gordon]... [and] MLM is in a position of doubt and uncertainty____” This can be contrasted to American Gen. Life Ins. Co. v. Schoenthal Family, LLC, relied on by MLM, in which, the insurer denied a claim for benefits and, on the same day, filed not only an action seeking a declaration that it was not liable to pay for the claim, but sought “rescission of the [policy] and interpleader to settle the disbursement of the refunded premiums ... .” Rather, MLM filed this declaratory judgment action and then, only after the fifth and last amendment to the complaint, took the firm position that the policies were void and provided no coverage to Gordon.

MLM points out that it, as did the insurer in American General, filed a claim to interplead the policy proceeds. But while an offer to return benefits of a contract is a fundamental characteristic of a rescission claim, MLM did not file a claim to interplead the funds as part of the original complaint, and assuming that its later-filed claim for interpleader was not too late for purposes of rescission, if return of the premiums was required, the stated reason for the interpleader was that the premiums “may derive from fraudulently obtained funds obtained by the insured in connection with the [closing].” Thus, MLM did not purport to restore the premiums to Gordon because it was asserting a claim to rescind the policies.

Although MLM contended that the policies were void, and its fifth amendment to the complaint contains allegations that mirror OCGA § 33-24-7, which allows an insurer to void a policy for its insured’s misrepresentations, MLM placed its claims within the context of its decision to proceed under a reservation of rights while, in light of its uncertainty as to coverage, seeking declaratory judgment. The substance of the complaint was simply what MLM expressly stated it to be. Accordingly, we agree with the trial court that MLM, having taken a firm position as to its rights, was not entitled to a declaratory judgment for the purpose of seeking confirmation of its actions in denying coverage, withdrawing its defense, and voiding the insurance policies.

Decided March 22, 2012.

Nall & Miller, Mark D. Lefkow, Clinton F. Fletcher, for appellant.

Hartman, Simons, Spielman & Wood, Samuel R. Arden, Kristen A. Yadlosky, Irene B. Vander, Hunton & Williams, Charlotte M. Ritz, Peggy J. Golden, Steven P. Berne, Stephen D. Apolinsky, Tona L. Shrum, for appellees.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       Harris later dismissed her counterclaim.

        Morgan v. Guaranty Nat. Cos., 268 Ga. 343, 344 (489 SE2d 803) (1997) (citation and punctuation omitted).

        Drawdy v. Direct Gen. Ins. Co., 277 Ga. 107, 110 (586 SE2d 228) (2003). Compare Wilder v. Jefferson Ins. Co. &c., 252 Ga. App. 563, 564-565 (1) (555 SE2d 771) (2001) (actualcontroversy remained where insurer cancelled policy prospectively and did not unilaterally declare policy void for fraud, but notified insured it was litigating issue in declaratory judgment action).

        Anderson v. Bruce, 248 Ga. App. 733, 736 (2) (548 SE2d 638) (2001) (footnote omitted).

        Baker v. City of Marietta, 271 Ga. 210, 214 (518 SE2d 879) (1999) (citation and punctuation omitted).

        Owens v. Union City Chrysler-Plymouth, 210 Ga. App. 378, 380 (436 SE2d 94) (1993) (citation and punctuation omitted).

       248 FRD 298 (N.D. Ga. 2008), affd, 555 F3d 1331 (11th Cir. 2009).

       Id. at 303 ©•

       “A contract may be rescinded at the instance of the party defrauded; but, in order to rescind, the defrauded party must promptly, upon discovery of the fraud, restore or offer to restore to the other party whatever he has received by virtue of the contract if it is of any value.” OCGA§ 13-4-60.

       Generally, “[t]he rule requiring one who seeks the rescission of a contract on the ground of fraud to restore, or offer to restore, the consideration received, as a condition precedent to bringing the action, is settled in this State.” Novare Group, Inc. v. Sarif, 290 Ga. 186,188 (1) (718 SE2d 304) (2011) (citation and punctuation omitted; emphasis in original).

       We do not reach the issue of whether, if MLM had filed a rescission claim, it must have also returned or offered to return the paid premiums. Compare Weems v. American Nat. Ins. Co., 197 Ga. 493, 497 (2) (29 SE2d 500) (1944) (“before a rescission can be had at the instance of the insurer, the insurer must restore or offer to restore to the other party whatever it has received by virtue of the contract, if it be of any value”) and Lively v. Southern Heritage Ins. Co., 256 Ga. App. 195,197 (2) (568 SE2d 98) (2002) (return of premiums not necessary to assert defense that an insurance contract is void due to fraud in the inducement).

       Compare American Gen., supra, 248 FRD at 309 (II) (B) (1) (a) (no waiver of rescission claim where original complaint included count to interplead the policy premiums, consistent with insurer’s “intent, expressed since the inception of this case, to seek rescission of the” policy).

       The interpleader action appears to have been resolved in light of MLM’s representation in its appellate brief that “the court ordered that [MLM’s] premium reimbursement check be provided to Gordon, with Gordon’s and the Plaintiffs consent.”

       See Pope v. Mercury Indem. Co. &c., 297 Ga. App. 535,537-539 (1) (677 SE2d 693) (2009) (in action for rescission of insurance policy, trial court did not err in finding that the insured made a material misrepresentation to insurer to induce it to reinstate the insurance policy in question).

       See Drawdy, supra.


author: Dillard, Judge.

text:
    A11A2033.
    PHF II BUCKHEAD LLC v. DINKU.
    (726 SE2d 569)
   Dillard, Judge.

Solomon Dinku sued PHF II Buckhead LLC (“PHF’), which does business as the Sheraton Buckhead Hotel Atlanta, to recover damages for injuries that he sustained when he fell from a skywalk that connected the hotel to its parking deck. Following PHF’s failure to file timely responsive pleadings, the trial court entered a default judgment as to liability, and after conducting a bench trial, it awarded Dinku $3,006,708.50 in damages. PHF now appeals, arguing that the trial court erred in denying its motion to set aside the default judgment on the grounds that the court lacked subject-matter jurisdiction, denying its motion to open the default on the grounds of proper case, and denying its motion for new trial on damages. For the reasons set forth infra, we affirm the trial court’s denial of PHF’s motion to set aside the default judgment and open the default, but we reverse the trial court’s denial of PHF’s motion for new trial and, thus, remand the case for further proceedings consistent with this opinion.

The record shows that on December 25, 2007, Dinku was employed by LAZ Parking/Georgia, which had a contract with PHF to park cars for guests staying at the Sheraton Buckhead hotel. At some point that day, Dinku was walking across the skywalk connecting the hotel to its parking deck when he saw two large dogs, which were owned by hotel guest James Hazlett, running loose toward him. Fearing for his safety, Dinku climbed onto the ledge of the skywalk to escape the dogs but then fell approximately 30 feet to the ground below. As a result, Dinku suffered serious and permanent injuries, including fractures to his face, jaw, femur, and ankle.

On May 6, 2008, Dinku filed a lawsuit against Hazlett and PHF, alleging that his injuries were a result of Hazlett’s failure to control his dogs and PHF’s failure to keep its premises safe. Hazlett was served with the complaint and filed an answer. PHF’s registered agent was served on May 7, 2008, and it received a copy of the complaint from its agent two days later. PHF then sent a copy of the complaint to its risk-management consultant, which allegedly was responsible for forwarding the complaint to PHF’s insurer. However, for unknown reasons, no one ever filed responsive pleadings or even made an appearance on PHF’s behalf.

Consequently, on July 17, 2008, Dinku moved for an entry of default judgment, to which PHF similarly did not respond. Thus, on August 28, 2008, the trial court entered a default judgment against PHF as to liability only. Thereafter, notice of a hearing on damages in the matter was published in the Fulton County Daily Report and served upon PHF’s registered agent, which again sent a copy directly to PHF. Nevertheless, no representative or counsel for PHF appeared at the bench trial that was held on December 29, 2008. And after hearing testimony and considering evidence presented during the bench trial, the court, on December 30,2008, entered a final order and judgment against PHF in the amount of $3,006,708.50, plus costs.

The term of court in which the default judgment was entered ended on January 5, 2009. Nearly three weeks later, on January 23, 2009, PHF filed a motion to set aside the default judgment and to open the default, pursuant to OCGA § 9-11-60 (d), arguing that the trial court lacked subject-matter jurisdiction because PHF was Dinku’s statutory employer at the time of the accident, and therefore, Dinku’s exclusive remedy was to file a workers’ compensation claim rather than a personal-injury action. Additionally, on January 29, 2009, PHF filed a motion for new trial, in which it reasserted the arguments from its motion to set aside the default judgment but also argued that (1) the trial court allowed improper evidence during the bench trial on damages, and (2) the award was excessive. Thereafter, Dinku filed responses to both of PHF’s motions. And on August 31, 2009, the trial court held a hearing specifically to address PHF’s motion to set aside the default judgment, noting that PHF’s motion for new trial would be addressed separately at a later point in time. However, despite the trial court’s assurances, no hearing on PHF’s motion for new trial was held.

Finally, on April 12, 2011, the trial court issued an order denying PHF’s motion to set aside the default judgment and to open the default, as well as its motion for new trial. And, on May 12,2011, PHF filed a notice of appeal, pursuant to OCGA § 5-6-34, which provided that it was appealing the denial of its motion for new trial and the denial of its motion to set aside the default judgment and to open the default. But on the same day, PHF also filed an application for discretionary appeal, pursuant to OCGA § 5-6-35, which stated that it was specifically seeking to appeal the denial of its motion to set aside the default judgment and to open the default. PHF’s application for discretionary appeal was denied on June 8, 2011, but its direct appeal was docketed on June 18, 2011.

1. PHF contends that the trial court erred in denying its motion to set aside the default judgment and to open the default, pursuant to OCGA § 9-11-60 (d), arguing that the trial court lacked subject-matter jurisdiction because PHF was Dinku’s statutory employer at the time of the accident and, therefore, Dinku’s exclusive remedy was to file a workers’ compensation claim rather than a personal-injury action. However, this Court has already decided this aspect of PHF’s appeal adversely to PHF, and we are bound by that decision.

Indeed, applications “for leave to appeal a final judgment in cases subject to appeal under OCGA § 5-6-35 shall be granted only when... [r] eversible error appears to exist. . . ,” Thus, in reviewing discretionary applications for appeals, our rules require us to grant the application when the trial court appears to have committed reversible error. Consequently, when this Court examines a request for a discretionary appeal, it acts in an error-correcting mode such that a denial of the application is on the merits, and the order denying the application is res judicata with respect to the substance of the requested review.

And here, PHF filed an application for discretionary appeal, which sought review of the denial of its motion to set aside the default judgment and to open the default, and also filed a direct appeal of the denial of its motion for new trial, which likewise sought review of the denial of the former motion. But this Court denied the application for discretionary appeal prior to the docketing of the direct appeal, and that denial acts as res judicata as to the issues raised in that application. Accordingly, PHF is estopped from seeking further judicial review of the trial court’s denial of its motion to set aside the default judgment and to open the default.

Moreover, even if we were able to revisit this issue, we do not find persuasive PHF’s contention that the default judgment should be set aside for lack of subject-matter jurisdiction, which is premised on PHF’s claim that it was Dinku’s statutory employer at the time of the accident and thus had tort immunity. As PHF notes, it is certainly well established that under OCGA § 34-9-8 (a) and OCGA § 34-9-11 (a), an injured employee of a subcontractor cannot maintain a tort action against the principal contractor because the principal contractor is considered a statutory employer of the employee. However, contrary to PHF’s argument, we do not find that the allegation in Dinku’s complaint that the Sheraton “owned, operated, controlled and managed the hotel” establishes PHF as a principal contractor or any other kind of statutory employer of Dinku. Indeed, Dinku’s complaint simply notes that PHF is the owner of the Sheraton hotel, with which Dinku’s employer contracted to provide parking services. And as our Supreme Court has held, “[a] mere owner to whom the contractual obligation of performance is owed and from whom no contractual obligation of performance is due is not a ‘principal contractor’ under OCGA § 34-9-8.”

In sum, based on the face of the complaint, PHF did not owe to another any contractual obligation of performance with regard to the operation of the parking services. Indeed, the operation of the parking services was a contractual obligation owed to PHF by Dinku’s employer, and thus, PHF was not Dinku’s statutory employer. Given these circumstances, Dinku was not barred from filing a personal-injury action against PHF, and the trial court, therefore, had subject-matter jurisdiction. Accordingly, the court did not err in denying PHF’s motion to set aside the default judgment and to open the default.

2. PHF also contends in its direct appeal that the trial court erred in denying its motion for new trial and in failing to hold a hearing on this motion. We agree.

Our Supreme Court has held that “[a] motion for a new trial is a proper means of seeking a retrial or reexamination, in the same court, of an issue of fact, or of some part or portion thereof, after decision by a jury or a decision by the court thereon.” And Uniform Superior Court Rule 6.3 provides that, in civil actions, “unless otherwise ordered by the court,” a motion for new trial “shall be decided” after an “oral hearing.” Importantly, the appellate courts of Georgia have “consistently refused to find that the failure to hold oral argument is harmless error” because to hold otherwise would “not encourage adherence to the Uniform Rules and would render the mandated hearing a hollow right.”

Decided March 22, 2012

Scrudder, Bass, Quillian, Horlock, Taylor & Lazarus, Glenn S. Bass, for appellant.

Slappey & Sadd, James N. Sadd, Adam H. Long, Jeffrey P. Raasch, for appellee.

And here, the trial court did not issue an order excepting the motion filed by PHF from this procedural requirement. In fact, during the hearing on PHF’s motion to set aside the default judgment, the trial court implied that PHF’s motion for new trial would be heard at a later point in time. Nevertheless, the trial court denied PHF’s motion for new trial in its April 12, 2011 order without holding the mandatory hearing on same. In doing so, the court characterized PHF’s motion as an improper means by which to move that the default judgment be set aside. But such a characterization is not completely accurate. While it is certainly true that PHF’s motion for new trial reiterates the arguments made in its motion to set aside the default judgment, the motion also argues that various evidentiary errors occurred during the trial on damages, and that the award was excessive. Simply put, the motion clearly seeks, in part, a reexamination of issues of fact.

Thus, the trial court erred in denying PHF’s motion for new trial without first holding a hearing on the issue. Accordingly, that portion of the trial court’s April 12, 2011 order which denied the motion for new trial must be reversed, and the case is remanded with direction that the trial court conduct a hearing as required by law and that it thereafter enter a new order disposing of the motion for new trial. In so holding, we do not reach PHF’s contentions addressing the merits of the trial court’s denial of the motion for new trial, as the issues raised thereby must first be asserted in the trial court on remand.

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

Mikell, P. J., and Boggs, J., concur.

       The bench trial was not transcribed.

       See OCGA§ 15-6-3 (3) (The terms of court for the State Court of Fulton County commence on the “[fjirst Monday in January, March, May, July, September, and November.”).

        See Ga. Receivables, Inc. v. Murray, 240 Ga. App. 676, 676-77 (524 SE2d 518) (1999) (noting that after expiration of the term of court in which a default judgment is entered, the trial court’s discretion in setting aside the default judgment is limited to the criteria set forth in OCGA§ 9-11-60 (d)).

        See OCGA § 34-9-8 (a) (“A principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.”); OCGA § 34-9-11 (a) (“The rights and remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee... at common law or otherwise, on account of such injury, loss of service, or death.”).

       Court of Appeals Rule 31 (a) (1).

        See Northwest Social & Civic Club, Inc. v. Franklin, 276 Ga. 859, 860 (583 SE2d 858) (2003) (applying nearly identical rule of the Supreme Court of Georgia).

        See id. (holding that denial of discretionary appeal acts as res judicata on the merits); Hook v. Bergen, 286 Ga. App. 258, 261 (1) (649 SE2d 313) (2007) (noting that the Supreme Court of Georgia held that the denial of an application for discretionary appeal is an adjudication on the merits of the underlying order and acts as res judicata in subsequent proceedings); see also OCGA § 9-11-60 (h) (“any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be”).

        See Franklin, 276 Ga. at 860; Hook, 286 Ga. App. at 261 (1); Lewis v. Robinson, 176 Ga. App. 374, 374-75 (336 SE2d 280) (1985).

        See Warden v. Hoar Constr. Co., 269 Ga. 715, 716 (1) (507 SE2d 428) (1998) (holding that general contractor was statutory employer of sub-contractor’s employee who was killed in a work-related accident, and therefore, general contractor was immune from tort claim brought by employee’s spouse).

        Yoho v. Ringier of Am., Inc., 263 Ga. 338, 343 (434 SE2d 57) (1993).

        See id. (holding that owner that retained contractor to perform repair work on owner’s property was not statutory employer of contractor’s employee, injured in accident, such that employee’s sole remedy against owner would be recovery of workers’ compensation benefits).

        Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 591 (690 SE2d 397) (2010) (punctuation omitted).

        See Uniform Superior Court Rule 6.3; see also Kuriatnyk, 286 Ga. at 592.

        Kuriatnyk, 286 Ga. at 592 (punctuation omitted).

        See id.

        See id.

        See id.


text:
    A11A2093.
    SIMMONS v. THE STATE.
    (726 SE2d 573)
   PHIPPS, Presiding Judge.

Jonathan Simmons appeals the trial court’s order denying his motion to withdraw his negotiated plea of guilty to possession of a controlled substance (hydrocodone), possession of marijuana, and improper turn. The trial court held that the motion to withdraw, filed in 2011, was untimely for purposes of withdrawing the guilty plea, which was entered in 2004. We agree. Accordingly, we affirm the judgment of the trial court denying the motion to withdraw. The record also shows, however, that after Simmons violated the terms of his first offender probation, the trial court, in 2007, entered a ten-year probated sentence for possession of a controlled substance. Because the trial court imposed a sentence not allowed by law, the sentence is void, and we remand the case with direction that Simmons be resentenced.

The record shows that on April 6, 2004, Simmons entered a negotiated plea of guilty to possession of a Schedule III controlled substance (hydrocodone), misdemeanor possession of marijuana, and improper turn. He was afforded first offender treatment and sentenced to three years for possession of a controlled substance (hydrocodone), twelve months for possession of marijuana, and twelve months for improper turn, with the sentences to run concurrently and to be served on probation. Following an April 19, 2007, hearing on the state’s claim that Simmons had violated the terms of his probation, the trial court entered an adjudication of guilt on the offenses for which Simmons had received probation under the First Offender Act. The trial court then sentenced Simmons to ten years probation for possession of a controlled substance, subject to his service of 360-400 days in a Georgia Department of Corrections detention facility, among other conditions, and entered the final disposition thereof on April 20, 2007.

On May 10,2011, Simmons filed a motion to withdraw guilty plea on the ground that his sentence was not permitted by law, he did not knowingly and voluntarily enter the plea, and his attorney was ineffective. The trial court denied the motion as untimely, noting the requirement that a motion to withdraw a guilty plea be made within the term of court that the plea is entered.

1. Simmons contends that the trial court entered a void sentence in 2007 on the count of possession of hydrocodone, and retained jurisdiction to correct that void sentence at any time. We agree. “Because the trial court’s ruling on a legal question is not due any deference, we apply the ‘plain legal error’ standard of review.”

OCGA § 16-13-30 (g) provides that persons who have violated OCGA § 16-13-30 (a) “with respect to a controlled substance in Schedule III . . . shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than five years.” It follows that the ten-year felony sentence entered by the trial court on April 20, 2007, is outside the statutory range and void. And “when a sentence is void, a trial court has jurisdiction to resentence the defendant at any time.”

2. Simmons further claims that the trial court erred in denying his motion to withdraw his guilty plea to possession of a controlled substance (hydrocodone). We disagree. The trial court denied Simmons’s motion to withdraw because it was untimely. This issue involves application of the law to undisputed facts, and so our review is de novo.

The general rule, as Simmons acknowledges, is that “when the term of court has expired in which a defendant was sentenced pursuant to a guilty plea the trial court lacks jurisdiction to allow the withdrawal of the plea.” In such case, a guilty plea may be withdrawn only through habeas corpus proceedings. Simmons entered his guilty plea in 2004, seven years before he filed his motion to withdraw, and so, under the general rule, the trial court lacked jurisdiction to allow withdrawal of the plea. Simmons, however, relies on the exception that, “[s]ince a void sentence is the same as no sentence at all, the defendant stands in the position as if he had pled guilty and not been sentenced, and so may withdraw his guilty plea as of right before resentencing, even following the expiration of the term of court in which the void sentence was pronounced.”

The rationale for the exception lies with OCGA § 17-7-93 (b), as our analysis in Kaiser v. State shows. That subsection provides, in pertinent part, that “[a] t any time before judgment is pronounced, the accused person may withdraw the plea of guilty and plead not guilty.” But Simmons, having availed himself of the First Offender Act, did not retain the right to withdraw his guilty plea as a matter of right pending entry of an adjudication of guilt. In the context of the First Offender Act,

the reducing to writing of the trial judge’s probation sentence and the filing of the same with the Clerk of the Court is a sufficient compliance therewith, so as to prevent the withdrawal of the plea of guilty as a matter of right. The contention of the defendant that he had until the adjudication of guilt, at a hearing to revoke the probation, had been reduced to writing and filed with the Clerk of the Court is, in our opinion, untenable; and that to so hold would constitute an abuse of the statute enacted for the benefit of first offenders, and thus permit them, after the passage of months and even years, and after witnesses are gone or dispersed, or even dead, to withdraw a plea of guilty and demand a trial.

Decided March 22, 2012.

Cris E. Schneider, for appellant.

Tom Durden, District Attorney, Sandra Dutton, Assistant District Attorney, for appellee.

Thus, restoring Simmons to his position before the void sentence was entered in 2007 cannot imbue Simmons with the ability to withdraw his 2004 plea as a matter of right.

In light of the foregoing, we cannot say, as in Kaiser, that the “specific statutory right must take precedence over the common law time limitation for filing motions to withdraw.” Rather, we agree with the trial court that, in light of those time limitations, it was too late for Simmons to withdraw, in 2011, his 2004 guilty plea. Accordingly, the judgment of the trial court must be affirmed, but the case remanded for purposes of resentencing.

Judgment affirmed and case remanded with direction.

Andrews and McFadden, JJ., concur.

       OCGA§ 16-13-30 (g).

       OCGA §§ 16-13-30 (j) (1); 16-13-2 (b).

       OCGA §40-6-120.

       On December 6, 2006, Simmons had previously stipulated to a different violation of his probation, but the trial court continued him on probation under the First Offender Act, subject to service of 180-210 days in a probation detention center.

       OCGA § 42-8-60 et seq.

       Simmons was also sentenced to 12 months for possession of marijuana and 12 months for improper turn, to be served on probation and concurrently with the sentence for possession of a controlled substance (hydrocodone).

       The trial court also gave Simmons credit for time served on probation before the adjudication of guilt.

       Simmons does not contend that the three-year probation sentence entered in 2004 under the First Offender Act was improper or void.

        Sharma v. State, 294 Ga. App. 783 (670 SE2d 494) (2008) (citation and punctuation omitted).

       Hydrocodone is a Schedule III controlled substance. See OCGA § 16-13-27 (4) (D).

       See English v. State, 282 Ga. App. 552, 555 (2) (639 SE2d 551) (2006) (a sentence is void if the court imposes punishment that the law does not allow).

        Williams v. State, 271 Ga. 686, 688 (1) (523 SE2d 857) (1999) (footnote omitted).

       As noted above, Simmons also pled guilty to misdemeanor possession of marijuana and improper turn. To the extent Simmons contends that the trial court erred in concluding that his motion to withdraw his guilty plea to the two misdemeanors was untimely, we disagree. No improper sentences were entered on these counts. The void sentence for possession of a controlled substance (hydrocodone) affords no basis for the withdrawal of Simmons’s guilty plea to misdemeanor possession of marijuana and improper turn. See Murray v. State, 314 Ga. App. 240 (723 SE2d 531) (2012).

       See generally Peterson v. State, 294 Ga. App. 128, 129 (1) (668 SE2d 544) (2008).

        Loyd v. State, 288 Ga. 481, 484 (2) (a) (705 SE2d 616) (2011) (citation and punctuation omitted).

       Id.

        Hallford v. State, 289 Ga. App. 350, 351 (1) (657 SE2d 10) (2008).

       285 Ga. App. 63, 64-65 (1) (646 SE2d 84) (2007).

       OCGA § 17-7-93 (b) (punctuation omitted).

        Davenport v. State, 136 Ga. App. 913, 914 (2) (222 SE2d 644) (1975). See Brundidge v. State, 302 Ga. App. 510, 511 (1) (691 SE2d 339) (2010) (rejecting appellant’s argument that he could withdraw a first offender guilty plea 11 years later because no final adjudication of guilt had been entered); Winkles v. State, 275 Ga. App. 351, 352 (1) (620 SE2d594) (2005) (“[t]o allow a defendant to retain the right to withdraw his plea despite his first offender status would completely subvert the provisions of the First Offender Act”) (citation and punctuation omitted).

       To the extent Tripp v. State, 223 Ga. App. 73, 74 (476 SE2d 844) (1996) (physical precedent only) suggests that the trial court retains jurisdiction to consider a motion to withdraw guilty plea until expiration of the term of court in which an adjudication of guilt is entered following violation of first offender probation, Tripp is, as we noted in Brundidge, supra at 511, n. 4, not binding authority.

       Kaiser, supra at 68 (1).

       See, e.g., Allen v. Ricketts, 236 Ga. 294, 296 (223 SE2d 633) (1976) (affirming judgment but directing trial court to resentence appellant); Kaiser, supra at 65 (1) (“[A] finding of a void sentence, following a guilty plea, does not automatically discharge the defendant from his plea. Rather, the proper procedure is to return the defendant to the trial court for the imposition of a legal sentence.”) (citations omitted).