source: Caselaw Access Project

author: Ellington, Presiding Judge.

license: Public Domain

text:
    A17A0149.
    EDUCAP, INC. v. HAGGARD.
    (801 SE2d 611)
   Ellington, Presiding Judge.

EduCap, Inc., filed a complaint in the State Court of Gwinnett County alleging that Jennifer L. Haggard a/k/a Jennifer L. Podesta (“Podesta”) was indebted to EduCap on a student loan contract in the amount of $19,802.91. Podesta answered and asserted a counterclaim for fraudulent misrepresentation. She then moved for partial summary judgment, arguing that the loan was the product of fraud in the inducement. The trial court granted Podesta’s motion, and Edu-Cap appeals. We reverse because Podesta failed to show that there remain no genuine issues of material fact.

Under OCGA § 9-11-56 (c),

[sjummary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant.

(Citations and punctuation omitted.) Assaf u. Cincinnati Ins. Co., 327 Ga. App. 475, 475-476 (759 SE2d 557) (2014). In this case, although EduCap filed briefs in response to Podesta’s motion for partial summary judgment, EduCap came forward with no evidence in opposition to the motion, and its attorney then failed to appear at the motion hearing. Nevertheless, “[a] motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and evidence that the party so moving is entitled to prevail.” (Citation and punctuation omitted.) McGivern u. First Capital Income Properties, 188 Ga. App. 716, 717 (1) (373 SE2d 817) (1988) (noting that there is “no such thing as a default summary judgment”) (punctuation omitted).

The evidence shows the following. In 2005, Podesta entered into a loan, funded by 5Star Bank and later purchased by EduCap, which carried a variable interest rate of at least 12.40 percent per annum. Before entering into the loan, Podesta met with an agent of EduCap or 5Star Bank in early 2005. The agent purported to review her eligibility for student loans as a student of CUNY Queens College. Podesta, a natural born United States citizen, was then eligible for federal student aid, including a number of programs available through Sallie Mae, the State of New York, and private lenders. Podesta testified that despite

obvious knowledge to the contrary, the Agent informed [her] that [she] was not eligible for grants of any kind, loans from the United States, Sallie Mae or the State of New York, or loans from any other institution carrying an interest rate lower than 12.40% per annum. Believing that the Agent had accurately advised [her] of [her] only options, [she] agreed to the terms of the loan.

(Punctuation omitted.)

Stephen Dunseith, an accountant and CPA retained by Podesta as an expert, also testified that, in 2005, the federal student aid programs carried credit requirements that were considerably easier to qualify for than private lender student loans. According to Dun-seith, based on his review of the loan documents, Podesta would have easily qualified for federal student aid, possibly including grants, and almost certainly including subsidized loans. The interest rate offered on those loans would have been, in Dunseith’s opinion, well shy of five percent per annum. Dunseith testified that, “in [his] professional opinion, no reasonable disinterested agent, working to assist a borrower in student loan applications would recommend the [EduCap] loan over Federal or New York student aid.” He further opined that the terms of the EduCap loan documents were abusive and “the definition of predatory lending.”

To prevail on a fraud claim, including the tort of fraudulent inducement, the plaintiff must establish five elements: “a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.” (Citation and punctuation omitted.) Stafford v. Gareleck, 330 Ga. App. 757, 762 (2) (769 SE2d 169) (2015). Setting aside whether Podesta has carried her burden as to the other elements, she has failed to establish that no genuine issue of material fact remains as to whether she justifiably relied on the alleged misrepresentation that she was not eligible for other student loan programs. “Absent a fiduciary or confidential relationship with the defendant, the plaintiff must exercise due diligence before relying upon the representations or silence of another.” Middleton v. Troy Young Realty, 257 Ga. App. 771, 773 (b) (572 SE2d 334) (2002). See Legacy Academy v. Mamilove, LLC, 297 Ga. 15, 19 (1) (771 SE2d 868) (2015) (“The law will protect the innocent against fraud, . . . but it demands of every one that he make use of his own facilities to avoid being defrauded.”) (citation and punctuation omitted). Thus, “fraud cannot be the basis of an action if it appears that the party alleging the fraud had equal and ample opportunity to prevent it and yet made it possible through the failure to exercise due diligence.” (Citation and punctuation omitted.) Baxter v. Fairfield Financial Svcs., 307 Ga.App. 286, 294 (4) (704 SE2d 423) (2010). Podesta did not show that she investigated her eligibility for a student loan other than by meeting with EduCap’s alleged agent. Without something more, Podesta’s testimony that she believed the agent is insufficient to establish that she was justified in relying on the misrepresentation. See id. at 294-295 (4) (“Blind reliance” precludes a fraud claim.); Dyer v. Honea, 252 Ga. App. 735, 738 (1) (557 SE2d 20) (2001) (accord).

Podesta maintains that a hearer’s justified reliance on a misrepresentation turns on her “exercise of common prudence and diligence.” (Citation and punctuation omitted.) Charter Med. Mgmt. Co. v. Ware Manor, 159 Ga. App. 378, 380 (2) (283 SE2d 330) (1981). She argues that, as a college student, she acted diligently in meeting with a financial aid advisor for Queens College to review her eligibility for student loans. She contends that the advisor should have been an independent third party, but was “masquerading as a financial aid officer in a respected university.” Further, she argues, a financial aid officer is in a relationship of trust and confidence with the students seeking advice, thereby showing that she was justified in relying on that advice. See, e.g., Johnson v. Bogdis, 205 Ga. 535, 541 (54 SE2d 620) (1949) (“The same degree of diligence in detecting fraud is not required where a confidential relationship exists as is required where the parties are dealing at arm’s length.”).

To the extent Podesta’s arguments add additional context to her meeting with the alleged agent, such as characterizing the agent as “masquerading as a financial aid officer,” they are not supported by the evidence. Podesta’s affidavit (which along with Dunseith’s expert testimony forms the basis for the evidentiary record) provides little information regarding the person who reviewed her student loan eligibility. She testified only that the person, whom she did not identify by name, was an agent of EduCap or 5Star Bank, she met with him or her, and the alleged agent purported to review her student loan eligibility and then made the alleged misrepresentation. Viewed in a light most favorable to EduCap, as the nonmovant, the evidence does not establish, as a matter of law, that Podesta was justified in relying on the misrepresentation as to her student loan eligibility because she met with the alleged agent or because she was in a confidential relationship with the agent. See Baxter v. Fairfield Financial Svcs., 307 Ga. App. at 293 (4) (“Our law does not create a confidential or fiduciary relationship between a financial institution and those with whom it deals .... The mere fact that one reposes trust and confidence in another does not create a confidential relationship.”) (citation and punctuation omitted).

Decided June 13, 2017.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Jen n ifer A. Adler, for appellant.

FGP Law, Frank G. Podesta, for appellee.

A confidential relationship may be based in fact, as well as in contract or in law. See Duncan v. Moore, 275 Ga. 656, 658 (3) (571 SE2d 771) (2002). However, as a confidential relationship “may be found whenever one party is justified in reposing confidence in another, the issue of whether a confidential relationship has been created is ordinarily reserved for the jury.” (Citation and punctuation omitted.) Savu v. SunTrust Bank, 293 Ga. App. 683, 690-691 (3) (668 SE2d 276) (2008). Likewise, apart from “plain and indisputable cases, questions of fraud and whether a plaintiff could have protected himself through the exercise of ordinary diligence are questions for a jury” (Citation and punctuation omitted.) Nebo Ventures v. NovaPro Risk Solutions, 324 Ga. App. 836, 840 (1) (d) (752 SE2d 18) (2013). Based on the evidence of record, Podesta has failed to affirmatively establish that, as to her fraud claim, this is a plain and undisputable case appropriate for determination as a matter of law. It follows that the trial court erred in granting her motion for partial summary judgment.

Judgment reversed.

Andrews and Rickman, JJ., concur.

       In addition to arguing that Podesta failed to affirmatively show that there is no genuine issue of material fact as to her justifiable reliance on the alleged misrepresentation, EduCap argues that Podesta failed to adduce evidence that the person who made the misrepresentation was an agent of EduCap; that Podesta failed to show she rescinded the contract, which EduCap contends is a prerequisite to her tort claim; and that she failed to pierce its affirmative defenses. Podesta responds that, although EduCap challenged her justifiable reliance and adequate diligence below, EduCap did not raise its additional arguments at the trial court level and may not do so on appeal. In light of our conclusions, we need not reach the issues presented by EduCap’s additional arguments.


author: Bethel, Judge.

text:
    A17A0424.
    RINTOUL et al. v. TOLBERT et al.
    (802 SE2d 56)
   Bethel, Judge.

Katherine R. Rintoul and William R. Garner appeal the grant of partial summary judgment against them. They argue the superior court erred in (1) considering the untimely motion; (2) granting the motion on the basis of res judicata as to Garner’s claim of constructive discharge under Georgia’s Whistleblower Act; and (3) granting certain defendants governmental immunity. We reverse the grant of summary judgment with respect to Garner’s claim of constructive discharge under Georgia’s Whistleblower Act because the superior court improperly found the claim barred by res judicata. We affirm the grant of summary judgment on the remaining grounds because the superior court has discretion to consider the motion and because there is no remedy against individual defendants in their personal capacity under the Whistleblower Act.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). “In response to a properly supported motion for summary judgment which pierces the pleadings, plaintiffs may not stand upon their allegations, but must come forward with evidence to contravene defendants’ proof or suffer judgment.” Essien v. CitiMortgage, 335 Ga. App. 727, 727 (781 SE2d 599) (2016) (citations and punctuation omitted).

Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010) (citations and punctuation omitted).

Viewed in this light, the evidence shows Rintoul was the city clerk and the librarian for the City of Pendergrass, among her other responsibilities. Garner was a police officer for the City of Pender-grass. Rintoul and Garner approached the mayor, Melvin Tolbert, with information and documents of what they alleged to be misappropriation of city funds, misuse of city property, bribery, and verbal abuse by the police chief and city administrator, Robert J. Russell III. The mayor promised to investigate the allegations and respond to Rintoul and Garner within a week. The city attorney reviewed the information and documents presented to the mayor and concluded that they did not support the claims of financial or legal wrongdoing. But the investigation did show that Russell had been verbally abusive to employees. Russell was subsequently removed as police chief.

Rintoul and Garner allege that their reporting of these alleged misdeeds to the mayor led to a series of retaliatory actions, including the termination of Rintoul and the “constructive discharge” of Garner. The mayor and the other defendants claim that the actions Rintoul and Garner argue were retaliatory actually resulted from the economic recession that had begun in 2008.

A consolidated action was filed in federal court against the city, the mayor, Russell, and several city council members by Rintoul and Garner, claiming retaliation in violation of their First and F ourteenth Amendments rights, conspiracy to deprive them of those same rights in violation of 42 USC § 1985, and violation of Georgia’s Whistle-blower Act, OCGA §45-1-4. The federal court granted summary judgment on the federal claims and dismissed the Georgia Whistle-blower Act claim without prejudice.

Rintoul and Garner then filed suit against Russell, the mayor, several city council members, and two police officers (collectively, the “defendants”) in the superior court of Jackson County, alleging a number of disturbing allegations, including that Rintoul’s termination and Garner’s “constructive discharge” resulted from their whistle-blowing activity, as well as claims for RICO violations, tampering with evidence, threatening and influencing witnesses, theft by conversion, theft of services, criminal conspiracy, bribery, extortion, false statements, libel and slander. The defendants moved for summary judgment, arguing, among other things, that the federal judge’s finding that Garner’s work environment and conditions of employment did not “present the type of unbearable circumstances that the Eleventh Circuit has previously found necessary to sustain a constructive discharge claim” rendered their whistleblower claim res judicata. The superior court granted the defendants’ motion on all counts except for Rintoul and Garner’s whistleblower claim. With respect to that claim, the superior court found that the federal judge’s “determination that Garner was not constructively discharged for the purposes of the First Amendment was not dispositive of whether he was constructively discharged for the purposes of the Georgia Whistle-Blower [sic] Act.” However, the superior court judge responsible for this order passed away soon thereafter, and another judge was appointed his successor. Following the appointment, the defendants refiled their motion for summary judgment with respect to Garner’s whistleblower claim, again arguing res judicata. The second judge granted the motion, and this appeal followed.

1. Rintoul and Garner argue that the superior court erred in considering the defendants’ motion for summary judgment filed after the deadline for such motions set in the court’s pretrial order. The superior court’s pretrial order provided that all motions (except motions in limine or to strike all or part of a deposition) were to be filed by August 15, 2013. The order further provided that it could “not be amended except by consent ofthe parties and the Court or by Order of the Court to prevent manifest injustice.” Defendants filed their second motion for summary judgment nearly two years after this deadline without consent of Rintoul or Garner or a court order. But the trial court has discretion to extend the deadline for filing and hearing motions for summary judgment. Blakey v. Victory Equip. Sales, 259 Ga. App. 34, 34 (1) (576 SE2d 288) (2002); Kammerer Real Estate Holdings v. PLH Sandy Springs, 319 Ga.App. 393, 398 (4) (740 SE2d 635) (2012), disapproved on other grounds, Artson, LLC v. Hudson, 322 Ga. App. 859, 862 (2) n.1 (747 SE2d 68) (2013); Uniform Rules for the Superior Courts, Rule 6.6 (“Motions for summary judgment shall be filed sufficiently early so as not to delay the trial. No trial shall be continued by reason of the delayed filing of a motion for summary judgment.”). Further, “it is within the discretion of a trial judge to consider a renewed motion for summary judgment even without an expansion ofthe record. There is nothingin OCGA § 9-11-56 limiting the number of times a party may make a motion for summary judgment.” Hubbard v. Dept. of Transp., 256 Ga. App. 342, 344 (1) (568 SE2d 559) (2002) (citations and punctuation omitted). Therefore, we find no error in the superior court’s consideration of the late-filed motion. See Kammerer Real Estate Holdings, 319 Ga. App. at 398 (4).

2. Rintoul and Garner argue that the superior court erred in granting summary judgment as to Garner’s claims of constructive discharge and retaliation under OCGA § 45-1-4 on the basis of res judicata. In Georgia, OCGA § 9-12-40 represents a codification ofthe common-law doctrine of res judicata, and provides that

[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

The purpose of this doctrine “is to prevent the re-litigation of claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action.” Sampson v. Ga. Dept. of Juvenile Justice, 328 Ga. App. 733, 736 (1) (760 SE2d 203) (2014) (citations and punctuation omitted). “Thus, three prerequisites must be satisfied before res judicata acts as a bar to subsequent litigation, those being the identity of the cause of action, identity of the parties or their privies, and a previous adjudication on the merits by a court of competent jurisdiction.” Id. The party invoking the doctrine of res judicata has the burden of proving the defense. Id.

Here, despite the superior court’s determination to the contrary, the causes of action in the federal and state cases are not identical. In the superior court action, Garner’s claim was for retaliation, unjust termination, and constructive discharge in violation of the Georgia Whistleblower Act. But the corresponding claim in the federal action was dismissed without prejudice when the federal court declined to exercise its supplemental jurisdiction. However, the trial court found that res judicata barred Garner’s constructive discharge claim under the Georgia Whistleblower Act because, with respect to his claim that he was constructively discharged in retaliation for exercising his constitutional rights brought in the federal action, the district court had already determined that Garner could not “demonstrate that he was constructively discharged. His work environment and conditions of employment were not so unbearable that a reasonable person would be compelled to resign.” The district court concluded that “Garner is unable as a matter of law to make a sufficient showing on two essential elements of his constructive discharge claim. Garner has failed to demonstrate either that his speech was constitutionally protected or that he was constructively discharged.” Thus, the superior court concluded that the question of whether Garner was constructively discharged had been previously litigated and decided by the district court, and therefore res judicata barred Garner’s claim that he was constructively discharged in violation of Georgia’s Whistle-blower Act. We disagree.

Strictly speaking, the doctrine of res judicata does not apply because there is not an identity of causes of action in both the federal and superior court cases. For the purposes of res judicata, “[t]he fact that the subject matter of different lawsuits may be linked factually does not mean that they are the same ‘cause’ within the meaning of OCGA § 9-12-40. For that doctrine to act as a bar, the cause of action in each suit must be identical.” Morrison v. Morrison , 284 Ga. 112, 115 (3) (663 SE2d 714) (2008) (citations and punctuation omitted); see also Body of Christ Overcoming Church of God v. Brinson, 287 Ga. 485, 486-487 (696 SE2d 667) (2010).

[B]ut the rule with reference to the doctrine of estoppel by judgment^ or collateral estoppel,] is somewhat different, in that there can be an estoppel by judgment whenever there has been litigation between the same parties, even though based upon a different cause of action, as to such matters only as were necessarily or actually adjudicated in the former litigation.

House v. Benton, 42 Ga. App. 97, 97-98 (155 SE 47) (1930) (emphasis omitted); see also Boozer v. Higdon, 252 Ga. 276, 278 (1) (313 SE2d 100) (1984). “We may affirm the trial court’s grant of summary judgment if it is right for any reason, whether stated or unstated, so long as the legal basis was fairly presented in the court below.” Cook Pecan Co. v. McDaniel, 337 Ga. App. 186, 192 (3) (b) (786 SE2d 852) (2016). However, the defendants only argued that Garner’s claim for constructive discharge under the Georgia Whistleblower Act brought in the superior court action was barred by res judicata. The defendants did not raise any argument with respect to collateral estoppel. Thus, we will not consider applying the right for any reason rule on collateral estoppel grounds here. The superior court erred in granting summary judgment on the basis of res judicata as to Garner’s claim of constructive discharge under the Georgia Whistleblower Act.

3. Rintoul and Garner next argue that the superior court erred in granting the individual officials governmental immunity We disagree.

Rintoul and Garner alleged in their complaint that the mayor, Russell, and the council member defendants are individually and personally liable for their actions that violated the Georgia Whistle-blower Act based on the language set forth in OCGA § 36-33-4. However, the superior court held that the remedies provided under OCGA § 36-33-4 could not be “judicially grafted” onto the Whistle-blower Act, which does not mention that Code section nor provide for individual liability Indeed, because Rintoul and Garner have no remedy against the individual defendants in their personal capacities, we affirm the grant of summary judgment.

Judgment affirmed in part and reversed in part.

McFadden, P. J., and Branch, J., concur.

Decided June 13, 2017.

Nancy Val Preda, for appellants.

DeLong, Caldwell, Bridgers, Fitzpatrick & Benjamin, Earnest H. DeLong, Jr., Michael A. Caldwell, for appellees.

       Rintoul and Gamer failed to cite to the record in their recitation of facts. Court of Appeals Rule 25 (c) (2) (i) requires each enumeration of error to be supported “by specific reference to the record or transcript. In the absence of a specific reference, the Court will not search for and may not consider that enumeration.”

       Garner alleges he was suspended without pay, placed on probation, demoted, had privileges revoked, and was barred from communicating with other police officers.

        Jones v. Bd. of Regents of Univ. System of Ga., 262 Ga. App. 75, 82 (4) (585 SE2d 138) (2003).

       In light of this disposition, we need not and expressly do not address the additional grounds on which the superior court granted summary judgment, nor Rintoul and Garner’s corresponding arguments regarding malice and the ministerial or discretionary nature of the individual defendants’ duties.


text:
    A17A0529.
    BAILEY v. THE STATE.
    (801 SE2d 614)
   Bethel, Judge.

Kimon Bailey appeals his conviction for possession of cocaine with intent to distribute. He argues that the trial court committed plain error when it failed to charge the jury that the State had to prove his knowledge of possessing cocaine beyond a reasonable doubt. We disagree and affirm because Bailey cannot show that the alleged error affected the outcome of the trial court proceedings.

“On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence.” State v. Robinson, 275 Ga.App. 117, 117 (619 SE2d 806) (2005). So viewed, the record shows that Bailey was riding as a passenger in a vehicle that was stopped by a police officer. During the stop, the driver consented to a search of the vehicle. The search revealed a bag of marijuana and a partially smoked marijuana cigarette. One of the other passengers in the vehicle took responsibility for the marijuana and told officers that Bailey had cocaine in his shoe. An officer asked Bailey to remove his shoes, and he complied. The officer felt along Bailey’s socks and detected a bulge underneath Bailey’s right sock at the arch on the bottom of his foot. The officer removed the sock, and a bag containing 32 smaller bags of cocaine fell out. Officers also found over $200 in cash on Bailey’s person. Bailey was charged with possession of cocaine with intent to distribute.

At trial, the jury was instructed generally on intent and the manner in which it may be proved and was told that it “is an essential element of any crime and must be proved by the State beyond a reasonable doubt.” The jury was also charged, in pertinent part:

The defendant is charged with possession — the offense of possession of cocaine with intent to distribute. That offense is defined as follows: It is unlawful for any person to possess with intent to distribute any quantity of cocaine, which is a controlled substance. Intent to distribute means intent to unlawfully deliver .... Deliver means the actual, constructive, or attempted transfer of a controlled substance from one person to another.

(Punctuation omitted.) Bailey made no contemporaneous objection to this charge. He was subsequently convicted of possession of cocaine with intent to distribute. Bailey filed a motion for new trial, which was denied. This appeal followed.

Bailey argues that the trial court committed plain error when it failed to charge the jury that the State had to prove his knowledge of possessing cocaine beyond a reasonable doubt. As it is undisputed that Bailey did not object to the jury instructions at trial, any alleged error in the charge is subject to plain error review pursuant to OCGA § 17-8-58 (b). Under that standard, this Court must consider first whether there is an error or defect — that is, some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned (i.e., affirmatively waived) by the defendant. Wilson v. State, 291 Ga. 458, 459 (729 SE2d 364) (2012).

Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Id. (citation, punctuation and emphasis omitted).

Assuming, without deciding, that a failure to provide a charge that a defendant must knowingly possess cocaine with an intent to distribute is always erroneous as a matter of law, Bailey’s claim of error fails under a subsequent prong — that is, he cannot establish that the alleged error affected the outcome of the trial court proceedings. See Wilson, 291 Ga. at 459. Bailey argues the evidence justifying the charge was that (1) he willingly removed his shoes when a police officer requested that Bailey do so, and (2) Bailey expressly denied having anything on his person. Both of these facts were testified to by an officer at trial. But neither of these facts support a conclusion that Bailey did not know or was mistaken about the substance of the drugs found on him. Compare Duvall v. State, 289 Ga. 540, 541-542 (712 SE2d 850) (2011); Patterson v. State, 328 Ga. App. 111, 117-119 (4) (761 SE2d 524) (2014). Rather, these facts constitute a complete denial of the existence of the 32 bags hidden inside his sock at the bottom of his right foot. Therefore, because there does not appear to be any evidence in the record demonstrating that the jury could have been misled or confused into convicting Bailey based solely on a finding that he possessed the drugs without making a finding regarding his knowledge, Bailey cannot show that the failure to instruct the jury as to knowledge affected the outcome of the trial court proceedings. Thus, we decline to find plain error here.

Decided June 13, 2017.

David E. Clark, for appellant.

S. Hayward Altman, District Attorney, Jessica B. Wilson, Assistant District Attorney, for appellee.

Judgment affirmed.

McFadden, P. J., and Branch, J., concur.


author: McFADDEN, Presiding Judge.

text:
    A17A0562.
    LATTA v. THE STATE.
    (802 SE2d 264)
   McFADDEN, Presiding Judge.

After a jury trial, William A. Latta was convicted of child molestation for touching then six-year-old M. A.’s vagina over her clothes. On appeal, he challenges the sufficiency of the evidence, but we find the evidence authorized the jury verdict. He argues that the trial court erred in admitting other acts evidence, but we find the trial court did not abuse his discretion in admitting the evidence. He argues that the trial court erred in admitting evidence from four witnesses regarding M. A.’s outcry to them, but we find the Child Hearsay Statute, OCGA § 24-8-820, authorized this evidence, and Latta, who did not object to the evidence at trial, has not shown plain error. He argues that the trial court erred in charging the jury on impeachment by prior inconsistent statements, but we find the trial court gave the pattern jury instruction on this issue, and Latta, who did not object to the charge at trial, has not shown plain error. He argues that his trial counsel was ineffective in failing to object to the outcry evidence, in failing to request a different jury charge on impeachment, and in failing to seek a mistrial or curative instruction in response to an allegedly improper comment by the state during closing argument, but we find he has not shown that his trial counsel was deficient in any of these respects. For these reasons, we affirm.

1. Sufficiency of the evidence.

Latta challenges the sufficiency of the evidence to authorize his conviction. The “relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (emphasis in original). In applying this standard, we do not resolve conflicts in the testimony, weigh the evidence, or draw inferences from the evidence, as those are functions of the jury See id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [sjtate’s case, the jury’s verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citation and punctuation omitted).

Viewed in this light, the evidence showed that on July 26, 2013, Latta was performing repair work on the air conditioner at the house where M. A. lived. While M. A. watched Latta work, her mother stepped into another room. M. A. testified that Latta put her on his lap and touched her with his hand “in [her] legs,” and that the touch lasted about a minute. She testified that Latta was not showing her the air conditioner when this occurred.

When M. A.’s mother returned to the room, she saw Latta sitting in a chair; M. A. was between his open legs, and his hands were between the girl’s legs and pressed “very low on [her] private part.” M. A.’s mother saw Latta pull M. A. toward him and squeeze her. M. A.’s mother immediately “yanked [her] out of [Latta’s] arms” and began to yell at Latta in Spanish, which Latta did not understand. M. A.’s mother then called someone on the telephone, and that person told Latta that the mother was accusing him of fondling M. A. and that they were going to call the police. Latta left the house and sat in his parked vehicle for a period of time before leaving at his employer’s instruction.

M. A.’s mother asked the girl what had happened, and M. A. responded that Latta had “motioned for her to come with his hand” and that he had touched her private part. M. A. then went to a nearby house and told a neighbor that the “air conditioner man” had touched her private area and hurt her. M. A. was crying and visibly upset. Alarmed, the neighbor called 911.

A police officer arrived and saw M. A. crying and holding her hands, crossed, directly over her vagina. He asked the girl if she was in pain, and M. A. responded that she was not in pain but that “a grown man had touched her.” The officer testified:

[M. A.] told me — she clearly stated that her — she was in the kitchen with some of her young siblings, the repairman was sitting on a chair — the air conditioning repairman was sitting on a chair in the kitchen. [M. A.’s] mom walked away At that time the repairman, this is what she told me, he said, come here. She walked over to the repairman, he said sit in my lap, he picked her up with two hands from what she told me, and she sat in his lap with her back to his face. Then she said that the repairman put his hand on her leg above her knee. At that time, she said that he then took his hand over the top of her vagina. And she was wearing a loose skirt at the time. And she said that he didn’t go underneath her underwear or her skirt, but he put his hand on top of her vagina.

In a subsequent interview using an anatomical drawing, M. A. indicated to a police detective that Latta touched her vagina. The detective testified that M. A. told him “her mom was in another room, the man told her, hey come here, which she did, he picked her up, put her on his lap, and then touched her on the vagina over the clothing one time.” The jury watched a video recording of this interview.

In a pre-arrest interview with a police detective, Latta denied touching M. A. He conceded, however, that he might have brushed up against M. A., although he did not think that occurred. And he admitted that on a prior occasion he had been accused of improperly touching another person while on a repair job. The state presented other acts evidence about this prior incident, which showed that, while examining a refrigerator leak at a restaurant on a university campus, Latta touched the buttocks of a developmentally-delayed student worker without that person’s consent. (This incident is discussed in greater detail in Division 2, infra.)

The evidence authorized the jury to find Latta guilty of child molestation, which occurs when a person “[djoes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person[.]” OCGA § 16-6-4 (a) (1). We are not persuaded by Latta’s argument that the evidence was insufficient to show that he touched M. A. with the required intent to arouse or satisfy either his or the child’s sexual desires. Although, as Latta argues, the law does not presume that a defendant acted with criminal intent, the law nevertheless permits a factfinder to infer the necessary intent from circumstantial evidence. OCGA § 16-2-6; Burke v. State, 316 Ga. App. 386, 390 (2) (729 SE2d 531) (2012). “[I]ntent, which is a mental attitude, is commonly detectable only inferentially, and the law accommodates this.” Id. (citation and punctuation omitted). Moreover, “[t]he intent with which an act is done is peculiarly a question of fact for determination by the jury[.]” Grimsley v. State, 233 Ga. App. 781, 784 (1) (505 SE2d 522) (1998) (citation and punctuation omitted).

The evidence in this case authorized the jury to infer that Latta touched M. A.’s vagina over her clothing and that he intended to arouse his sexual desires or those of M. A. when he did so. There was evidence that Latta specifically called M. A. to him, sat her in his lap, placed his hand on her vagina over her clothes, and held his hand there for up to a minute. The jury reasonably could find from this evidence that Latta touched M. A.’s vagina deliberately, rather than accidentally, and infer that he did so with the intent to sexually arouse himself. See McMurtry v. State, 338 Ga.App. 622, 623-625 (1), (2) (791 SE2d 196) (2016); Ayers v. State, 286 Ga.App. 898, 900 (1) (a) (650 SE2d 370) (2007).

2. Other acts evidence.

Latta challenges the trial court’s admission of other acts evidence concerning the incident in which Latta touched the buttocks of the student worker. The trial court admitted the other acts evidence under two sections of our new Evidence Code: OCGA § 24-4-404 (b), which provides that “[ejvidence of other crimes, wrongs, or acts” may be admissible for purposes other than “to prove the character of a person in order to show action in conformity therewith,” and OCGA § 24-4-413 (a), which provides that “[i]n a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused’s commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant.” For the reasons set forth below, the trial court did not abuse his discretion in admitting the evidence under OCGA § 24-4-413 (a). See Steele v. State, 337 Ga. App. 562, 565-566 (3) (788 SE2d 145) (2016) (trial court’s decision to admit other acts evidence will be overturned only where there is clear abuse of discretion). Accordingly, we need not address the admissibility of the evidence under OCGA § 24-4-404 (b). See Dixon v. State, 341 Ga.App. 255, 258 (1) (800 SE2d 11) (2017) (in sexual assault case, the provisions of OCGA § 24-4-413 (a) “supersede the provisions of OCGA § 24-4-404 (b)”) (footnote omitted).

The other acts evidence showed that, on April 3, 2008, while working in his capacity as a repairman, Latta touched the buttocks of D. H., a mentally-disabled student in a special-needs program at a university. D. H. testified that the touching occurred while she was leaning down to put bottles in a box at her campus job. She stated: “I was working in the cafeteria from Chick-fil-A. I got down. I saw a refrigerator guy. He come — he come near me. Well, he touch me on my butt, but I sat up and he grab my hand and said, let’s go out from the doors. After that I told him to let go and I went to [another person].” D. H. reported what had happened, and a campus police officer investigated the incident and interviewed Latta. The officer testified that Latta initially said D. H. had recognized and hugged him, then admitted that he probably had touched D. H. but that it had been accidental and had occurred as he was checking a refrigerator leak that D. H. had reported to him. Latta also told the officer that D. H. had told him she felt uncomfortable during their interaction.

The trial court correctly held that OCGA § 24-4-413 (a) governed the admissibility of the other acts evidence because Latta was accused of an offense of sexual assault and the other acts evidence concerned his commission of another offense of sexual assault. For purposes of OCGA § 24-4-413, the term “offense of sexual assault” includes “[a]ny crime that involves contact, without consent, between any part of the accused’s body . . . and the genitals ... of another person[.]” OCGA § 24-4-413 (d) (2). Latta’s act of touching M. A.’s vagina falls within this definition. See United States v. Seymour, 468 F3d 378, 385 (II) (A) (2) (6th Cir. 2006) (applying Fed. R. Evid. 413 to admit other acts evidence in case where defendant was accused of child molestation); United States v. Godfrey, 611 Fed.Appx. 364, 365 (8th Cir. 2015) (treating evidence that defendant had touched a 13- or 14-year-old girl’s vagina over her clothing as a sexual assault for purposes of applying Fed. R. Evid. 413 to admit other acts evidence). The term “offense of sexual assault” also includes conduct that would constitute sexual battery in violation of OCGA § 16-6-22.1. OCGA § 24-4-413 (d) (1). Latta’s act of touching D. H.’s buttocks — if he did so intentionally — without her consent constitutes the offense of sexual battery under OCGA § 16-6-22.1.

Latta argues that there is no evidence that he intentionally touched D. H.’s buttocks, and he points to evidence that he was never charged with a crime in connection with that other act. But as held in cases interpreting the Federal Rules of Evidence, which we look to for guidance in construing our new Evidence Code, see Parker v. State, 296 Ga. 586, 592 (3) (a) (769 SE2d 329) (2015),

criminal charges [are] not required for the admission of other acts evidence.... Indeed, a prior acquittal of a criminal charge will not necessarily preclude admission of other act[s] evidence .... Finally, a trial court need not make a preliminary finding that the alleged prior similar conduct in fact occurred before admitting it into evidence. Instead, a trial court’s decision to admit other act[s] evidence will be affirmed if a jury could find by a preponderance of the evidence that the defendant committed the act.

Dixon, supra, 341 Ga. App. at 259 (1) (a) (citations and punctuation omitted). From the other acts evidence, a jury could have concluded by a preponderance of the evidence that Latta committed the offense of sexual battery in violation of OCGA § 16-6-22.1 by intentionally touching D. H.’s buttocks without her consent. See Thompson v. State, 245 Ga. App. 396, 398 (3) (537 SE2d 807) (2000) (victim’s testimony that defendant touched her buttocks as she was climbing a ladder to get out of a swimming pool, and evidence that victim was visibly upset afterward, was sufficient to authorize jury to find defendant had committed offense of sexual battery). The evidence that Latta touched D. H. thus was evidence of an “offense of sexual assault” admissible as an other act under OCGA § 24-4-413.

Citing OCGA § 24-4-403, Latta argues that the probative value of the other acts evidence was substantially outweighed by its prejudicial value. A trial court may exclude relevant evidence under OCGA § 24-4-403 “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Whether to do so, however,

lies within the discretion of the trial court and calls for a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness. . . . [T]he exclusion of evidence under OCGA § 24-4-403 is an extraordinary remedy which should be used only sparingly. The major function of OCGA § 24-4-403 is to exclude matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect. In close cases, the balance should be struck in favor of admissibility.

Dixon, supra, 341 Ga. App. at 260 (1) (b) (citations and punctuation omitted).

In reviewing the trial court’s application of OCGA § 24-4-403 in this case, we assume without deciding that the evidence admitted under OCGA § 24-4-413 should be evaluated under the same type of balance as evidence admitted under OCGA § 24-4-404 (b), rather than under a balance more generous to its admission. See generally Dixon, supra, 341 Ga. App. at 260 (1) (b) (discussing open question of “whether evidence admitted under [OCGA § 24-4-413] should be evaluated under a different type of Rule 403 balance that weighs in favor of admission”) (citations and punctuation omitted). The evidence of the sexual battery against the student worker had probative value in countering Latta’s accident defense because it showed that the instance with M. A. was not the first time Latta had claimed accident after touching a vulnerable person in a sexual manner while working on a repair job. This fact made it less probable that Latta touched M. A. accidentally and more probable that he touched her to arouse or satisfy his sexual desires. See Olds v. State, 299 Ga. 65, 75 (2) (786 SE2d 633) (2016) (“Generally speaking, the greater the tendency to make the existence of a fact more or less probable, the greater the probative value [of evidence].”). “[W]e find no clear abuse of the trial court’s discretion in determining that the evidence was more probative... than prejudicial.” Silvey v. State, 335 Ga.App. 383, 388 (1) (b) (780 SE2d 708) (2015).

We disagree with Latta’s assertion that we should remand this issue to the trial court in light of our Supreme Court’s decision in Olds, supra, 299 Ga. at 65. The Court in Olds remanded an appeal to this court for reconsideration after clarifying an earlier decision upon which this court had relied extensively in ruling on the appeal. Id. at 77 (3). That circumstance does not exist here.

3. Outcry statements.

Latta argues that the trial court erred in admitting evidence of M. A.’s out-of-court outcry statements to four witnesses — M. A.’s mother, a neighbor, and two law enforcement officers. He argues that the statements were inadmissible because they did not fall within a hearsay exception, there was not sufficient indicia of their reliability, and they did not meet the admissibility requirements for prior consistent statements. Because Latta did not object to the statements at trial, we review his claims only for plain error. See OCGA § 24-1-103 (a), (d). Latta has not shown plain error.

First, the statements met the requirements for admission set forth in the applicable version of Georgia’s Child Hearsay Statute, OCGA § 24-8-820, which provides:

A statement made by a child younger than 16 years of age describing any act of sexual contact or physical abuse performed with or on such child by another . . . shall be admissible in evidence by the testimony of the person to whom made if the proponent of such statement provides notice to the adverse party prior to trial of the intention to use such out-of-court statement and such child testifies at the trial. . . and, at the time of the testimony regarding the out-of-court statements, the person to whom the child made such statement is subject to cross-examination regarding the out-of-court statements.

The person who made the statements, M. A., was younger than 16 years of age; the statements described an act of sexual contact performed on her by another; the state provided the required notice to Latta; M. A. testified at trial; and the persons to whom M. A. made the statements were subject to cross-examination about them. It is not error for a trial court to admit an out-of-court outcry statement that meets the statutory requirements of OCGA § 24-8-820. McMurtry, supra, 338 Ga. App. at 627 (4) (a).

Moreover, the applicable version of OCGA § 24-8-820, unlike its predecessors, does not require a showing that the out-of-court statement has indicia of reliability, and this court has “decline[d] to add judicially a requirement that the legislature did not include.” McMurtry, supra, 338 Ga. App. at 627 (4) (a).

Finally, this court has made clear, in construing prior versions of the Child Hearsay Statute, that statements admissible under the Child Hearsay Statute do not need to meet the admissibility requirements for prior consistent statements. As we have explained: Laster v. State, 340 Ga.App. 96, 98-99 (1) (796 SE2d 484) (2017) (citations, punctuation and footnote omitted). Accord Davis v. State, 303 Ga. App. 799, 800 (2) (694 SE2d 381) (2010); Whitaker v. State, 293 Ga. App. 427, 429 (2) (667 SE2d 202) (2008). And this court has applied this rationale to the version of OCGA § 24-8-820 applicable to this case, holding, in the context of a claim of ineffective assistance of trial counsel, that where out-of-court statements meet the requirements of OCGA § 24-8-820, their failure to also meet the requirements for admission as prior consistent statements is not a viable ground for challenging them. See McMurtry, supra, 338 Ga. App. at 628 (5).

Generally speaking, unless a witness’s veracity has affirmatively been placed in issue, the witness’s prior consistent statement is pure hearsay evidence, which cannot be admitted merely to corroborate the witness, or to bolster the witness’s credibility in the eyes of the jury The Child Hearsay Statute, however, is a legislatively-created exception to the general rule prohibiting such hearsay evidence and provides that, so long as certain conditions are met, a statement made by a child describing any act of sexual contact is admissible in evidence by the person to whom the statement was made. As such, the Child Hearsay Statute actually contemplates testimony from both the child and those witnessing the child’s later reaction, even if the hearsay may be “bolstering.”

4. Jury charge.

Latta argues that the trial court erred in giving the jury the following charge on a witness’s prior inconsistent statements:

Your assessment of a trial witness’s credibility may be affected by comparing or contrasting that testimony to statements or testimony of that same witness before the trial started. It is for you to decide whether there is a reasonable explanation for any inconsistency in a witness’s pretrial statements and the testimony when compared to the same witness’s trial testimony. As with all issues of witness credibility, you, the jury must apply your common sense and reason to decide what testimony you believe or do not believe.

Latta waived appellate review, including plain error review, of his claim that the trial court erred in giving this charge, which tracked the language of the pattern jury instruction, Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.31.47, because he “submitted a written request for the pattern charge that was given . . . and stated no objection to the trial court’s agreeing to give the charge as requested.” Williams v. State, 299 Ga. 447, 449 (2) (788 SE2d 347) (2016).

5. Ineffective assistance of counsel.

Latta argues that his trial counsel provided ineffective assistance. To prevail on this claim, he

must show [both] that trial counsel’s performance [was deficient in that it] fell below a reasonable standard of conduct and that [it was prejudicial because] there existed a reasonable probability that the outcome of the case would have been different, had it not been for counsel’s deficient performance. If [Latta] fails to [prove] either prong of the [two-part] test, this relieves the reviewing court of the need to address the other prong.

Scott v. State, 290 Ga. 883, 889 (7) (725 SE2d 305) (2012) (citations and punctuation omitted). As detailed below, Latta has not shown that his trial counsel’s performance was deficient.

(a) Failure to object to testimony about outcry statements.

Latta argues that his trial counsel was ineffective for failing to object to the admission of evidence of M. A.’s out-of-court outcry statements on grounds of “hearsay . . . and improper prior consistent statement.” But “[a]s discussed in Division [3], supra, given that the out-of-court statements were properly admitted under the applicable [C]hild [H]earsay [S]tatute, OCGA § 24-8-820, trial counsel had no grounds for challenging this testimony and cannot be adjudged ineffective for failing to object to it.” McMurtry, supra, 338 Ga. App. at 628 (5) (citation and punctuation omitted). See Geiger v. State, 295 Ga. 648, 654 (5) (c) (763 SE2d 453) (2014) (failure to raise meritless objection cannot be evidence of deficient performance).

(b) Requesting current pattern jury charge rather than former pattern jury charge on prior inconsisten t statements.

Latta argues that his trial counsel was deficient in requesting the current pattern jury charge on prior inconsistent statements (set forth in Division 4, supra), which derives from OCGA § 24-6-613 of Georgia’s new Evidence Code, rather than a former pattern jury charge on the issue. Although he asserts that the new pattern charge is “wrong,” the new pattern charge is not an incorrect statement of the law. And pretermitting whether the former pattern charge’s language is a more precise or comprehensive statement of the law than the current pattern charge, Latta has not shown that his trial counsel was deficient in requesting the pattern charge. To overcome the strong presumption that his trial counsel’s performance fell within the wide range of professional assistance, Latta must show that no reasonable lawyer would have requested the current pattern charge instead of the former pattern charge. See Simon v. State, 321 Ga.App. 1, 7 (3) (740 SE2d 819) (2013). “Where, as here, the jury was properly instructed on the law[,] counsel cannot be deemed ineffective for failing to seek alternative instructions.” Id. (citation and punctuation omitted). See also Jarrett v. State, 299 Ga. App. 525, 531 (7) (a) (683 SE2d 116) (2009) (finding claim that trial counsel was ineffective in failing to request particular jury charge to be meritless when trial court gave pattern charge on issue).

(c) Failure to seek mistrial or curative instruction.

Latta argues that his trial counsel was deficient for failing to seek a mistrial or curative instruction after the prosecutor made what Latta contends was an improper comment about his silence in violation of the Fifth Amendment. The comment was not improper.

The prosecutor, in closing argument, commented on the recorded statement that Latta had made to the detective in a pre-arrest interview. Referring to that statement, which had been played to the jury at trial, the prosecutor said:

Sometimes the silence says more than the words. There are three points during the Defendant’s statement where he takes much longer than everything else to answer questions. The three points in the Defendant’s statement where he takes longer to answer the questions are did you tell [M. A.] to come here. He pauses and says, I think I said look here. When he’s asked whether he had moved [M. A.] at all, there’s a pause, and he eventually says, no. And the longest pause is after he is asked whether he had [M. A.] in his lap. At that point it’s 20 seconds — before the detective breaks the silence and says, I don’t know why you’re having so much trouble answering this question. It’s not his exact words, but that’s essentially what he says. And then he says, no, no.

This was not an improper comment on Latta’s exercise of his Fifth Amendment right to remain silent because the recording of Latta’s interview shows that he did not exercise that right. Latta

did not expressly invoke the privilege against self-incrimination in response to the officer’s question[s]. It has long been settled that the privilege generally is not self-executing and that a witness who desires its protection must claim it. Although no ritualistic formula is necessary in order to invoke the privilege, a witness does not do so by simply standing mute.

Salinas v. Texas, _ U. S. _, _ (133 SCt 2174, 2178, 186 LE2d 376) (2013) (citations and punctuation omitted). There are two exceptions to this requirement. “[A] criminal defendant need not take the stand and assert the privilege at his own trial.” Id., 133 SCt at 2179 (II) (A). And “a witness’ failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary” Id. at 2180 (II) (A). Neither exception applies to the circumstances of this case. Latta did not testify at his trial, and his interview with the detective was voluntary. See id. (defendant cannot benefit from second exception, regarding involuntary forfeiture of privilege against self-incrimination, where interview was voluntary). The trial court ruled at a pre-trial Jackson-Denno hearing that the interview was voluntary and noncustodial, and Latta has not challenged this ruling on appeal. Consequently, the Fifth Amendment did not preclude the prosecutor’s comment.

Decided June 13, 2017

Frances C. Kuo, for appellant.

In his reply brief, Latta argues for the first time that the prosecutor’s comment also violated Latta’s rights under the Georgia Constitution, which states that “[n]o person shallbe compelledto give testimony tending in any manner to be self-incriminating.” Ga. Const. of 1983, Art. I, Sec. I, Par- XVI. This court “generally will not consider arguments raised for the first time in a reply brief,” Minor v. State, 328 Ga.App. 128, 134 (2) (b) (761 SE2d 538) (2014), and, in any event, Latta has offered no persuasive argument that the Georgia Constitution’s privilege against self-incrimination applies to the circumstances of this case even though the Fifth Amendment’s similar privilege does not apply.

We note that, “[p]rior to the effective date of Georgia’s new Evidence Code, a prosecutor was prohibited from commenting on a defendant’s pre-arrest silence per Mallory v. State, 261 Ga. 625 (409 SE2d 839) (1991). . . . Mallory was decided not on constitutional grounds but rather based on former OCGA § 24-3-36.” Bradford v. State, 299 Ga. 880, 886 (7) n. 7 (792 SE2d 684) (2016) (citation and punctuation omitted). Assuming the continued validity of Mallory under the new Evidence Code, see generally Tran v. State, 340 Ga. App. 546, 553 (2) (c), n. 7 (798 SE2d 71) (2017) (applying Mallory to case governed by new Evidence Code but noting that Supreme Court of Georgia has expressed no opinion on its continued validity), Latta has not argued that the rule set forth in Mallory prohibited the prosecutor’s comment. Moreover, any such argument would be mer-itless, because Latta responded to the detective’s questions. See Carter v. State, 324 Ga. App. 118, 126 (2) (b) (749 SE2d 404) (2013) (declining to apply principle in Mallory prohibiting mention of defendant’s silence where defendant willingly talked to detective in pre-arrest interview).

Because the prosecutor did not make an improper comment, Latta’s trial counsel was not deficient in failing to seek a mistrial or curative instruction. See Dority v. State, 335 Ga. App. 83, 97 (4) (a) (780 SE2d 129) (2015); Carter, supra, 324 Ga. App. at 126 (2) (b).

Judgment affirmed.

Branch and Bethel, JJ., concur.

Daniel J. Porter, District Attorney, Karen M. West, Assistant District Attorney, for appellee.

       OCGA § 24-8-820 was amended effective July 1, 2013. See Ga. L. 2013, pp. 222, 237, § 13. The crime at issue occurred on July 26, 2013, after the effective date of this amendment.


author: Per curiam.

text:
    A17A0618.
    GOSLINE v. THE STATE.
    (802 SE2d 275)
   Per curiam.

Nat Gosline appeals from the trial court’s denial of his plea in bar, which was based on speedy trial grounds. Because he was incarcerated in Michigan when he filed his statutory demand for speedy trial and during the next term of court, we affirm.

In November 2015, Gosline was charged with aggravated battery and aggravated assault. In February 2016, he filed a statutory demand for speedy trial. Then, in May 2016, Gosline filed a motion for discharge and acquittal pursuant to OCGA § 17-7-170, based on the state’s failure to try him within two terms of court of his demand for speedy trial. The trial court held a hearing on the motion, during which the parties agreed that Gosline was arrested in Michigan five days after the incident that led to the charges in this case. He remained incarcerated in Michigan until after the trial court’s next term of court ended. Because of his incarceration in Michigan, the trial court denied Gosline’s motion for discharge. In its order, the court noted that it has no authority to compel the attendance of a defendant who is in the custody of a different, sovereign. Gosline then filed this appeal.

Gosline acknowledges that he was incarcerated in Michigan when he filed his statutory demand for speedy trial and during the next term of court. He insists, however, that he is entitled to discharge because he would have waived his right to be present at trial if the court had set his trial on its trial calendar. We disagree.

Pursuant to OCGA § 17-7-170 (b), if a defendant who files a statutory demand for speedy trial

is not tried when the demand for speedy trial is made or at the next succeeding regular court term thereafter, provided that at both court terms there were juries impaneled and qualified to try the defendant, the defendant shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.

“Under the statute, two circumstances must coexist before discharge occurs: two terms of juries impaneled and qualified to try defendant, and the availability of defendant.” McIver v. State, 205 Ga. App. 648, 649 (423 SE2d 27) (1992). Where the accused is in the custody of a different, sovereign and the Interstate Agreement on Detainers Act does not apply, the accused is not available for trial “because there is no inherent authority in a court of this state to compel an accused’s presence or in-court attendance where such defendant is incarcerated by or in the control of a different sovereign.” Baldwin v. State, 270 Ga. App. 201, 202 (605 SE2d 889) (2004) (citations and punctuation omitted).

Here, as in McIver, Gosline was in the custody of a different sovereign during the time relevant to his speedy trial demand. Gosline acknowledges this fact. He argues, however, that McIver is “erroneous” and “too broad” because it does not consider the possibility of a defendant waiving his right to be present at trial. To the extent Gosline contends that McIver should be overruled, we decline to do so. McIver is consistent with our precedent holding that a defendant who invokes the speedy trial guarantee must be available for trial and that a defendant who is in the custody of a different sovereign is “not available for trial since there is no inherent authority in a court of this [sjtate to compel his presence under those circumstances.” State v. Collins, 201 Ga. App. 500, 501 (411 SE2d 546) (1991) (discussing Luke v. State, 180 Ga. App. 378, 379 (349 SE2d 391) (1986) (overruled by Collins, 201 Ga. App. at 501), and Hunt v. State, 147 Ga. App. 787, 788 (250 SE2d 517) (1978)). Compare Reid v. State, 116 Ga. App. 640, 647-648 (2) (158 SE2d 461) (1967) (defendant who was in the custody of the Georgia State Board of Corrections on a previous conviction was entitled to a discharge of his pending charges when he was not brought to trial within two terms of his demand for speedy trial). Further, nothing in the record — except for Gosline’s motion for discharge and acquittal, which was filed after the relevant time period — reflects a desire to waive his right to be present at trial. Gosline acknowledges this fact as well, but maintains that the trial court’s failure to place him on the calendar precluded him from voicing that waiver. He does not, however, cite any authority in support of his implicit contention that a waiver could be effected only during a calendar call or only after the trial was placed on the calendar, and we decline to impose such a rule.

Decided June 13, 2017

The Steel Law Firm, Brian Steel; Jonathon J. Majeske, for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Joshua D. Morrison, Assistant District Attorneys, for appellee.

Gosline also contends that McIver is inconsistent with the principle that, once a defendant files a proper demand for speedy trial, he is not required to take any further action to be automatically entitled to a discharge if the two-term deadline passes without trial. See, e.g., State v. Marshall, 337 Ga. App. 336, 337-338 (1) (787 SE2d 290) (2016). Even the cases reciting this principle, however, have recognized that a defendant must be available for trial to invoke the two-term deadline. For example, in Flagg v. State, 11 Ga.App. 37 (74 SE 562) (1912), the defendant filed a demand for speedy trial on his felony indictment. We concluded that he was available for trial and was therefore entitled to a discharge based on the passage of two terms, even though he was serving a chain-gang sentence for a previous conviction. Central to our conclusion was the fact that both the pending felony indictment and the previous conviction were before the same trial court, so the state had the defendant in its custody and could produce him for trial. Id. at 41.

Under the circumstances, we conclude that Gosline’s incarceration in Michigan extended the time for his speedy trial demand. See McIver, 205 Ga.App. at 648-649. Because Gosline was not available for trial, the state’s failure to try him within two terms of his statutory demand for speedy trial does not render him entitled to a discharge. Id.

Judgment affirmed. Division Per Curiam.

All Judges concur.

       Georgia does have the authority under the Interstate Agreement on Detainers Act, OCGA § 42-6-20 et seq., to compel production of a person sentenced and incarcerated in a foreign state, absent disapproval by the governor of the sending state. See OCGA § 42-6-20 (Art. IV). But the parties correctly agree that the Act is not applicable to this case, as it does not apply to pretrial detainees in the sending state. See generally United States v. Muniz, 1 F3d 1018, 1026 (II) (E) (10th Cir. 1993).

       In this case, the parties agree that Gosline was not tried in the term in which he made his speedy trial demand, nor in the next term, and that juries were impaneled in both terms and were qualified to try his case.