author: ANDREWS, Presiding Judge.

text:
    A15A0762.
    THE STATE v. EDWARDS et al.
    (772 SE2d 430)
   ANDREWS, Presiding Judge.

Leonard Adrian Edwards and Ashley McMillain were jointly indicted on charges of trafficking in marijuana by possession of more than ten pounds of marijuana. Edwards filed a pre-trial motion to suppress evidence obtained from his residence as a result of: (1) an initial entry by police officers into the residence without a search warrant; and (2) a subsequent re-entry and search of the residence by the officers pursuant to a search warrant. McMillain, who also resided at the residence, adopted and joined in the motion to suppress. After a hearing on the motion, the trial court entered an order granting the motion to suppress. Pursuant to OCGA § 5-7-1 (a) (4), the State brings this pre-trial appeal claiming that the trial court erred by granting the motion to suppress evidence found by officers in the residence pursuant to the search warrant. For the following reasons, we affirm the suppression order in part and reverse in part.

On review of a trial court’s ruling on a motion to suppress, “the trial court’s findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject to de novo review.” Barrett v. State, 289 Ga. 197, 200 (709 SE2d 816) (2011).

At the hearing on the motion to suppress, police officers gave the following testimony: On the basis of information provided in an anonymous phone call, Cobb County narcotics officers approached the residence occupied by Edwards and McMillain to conduct a so-called “knock and talk,” for the purpose of investigating suspicions of illegal drug activity at the residence. The State does not dispute that, when the officers initially knocked on the door of the residence, they had no probable cause for issuance of a warrant to enter and search the residence, nor did they have probable cause and exigent circumstances necessary to justify an immediate entry and search of the residence. Aman (later identified as Edwards) opened the door of the residence in response to the officers’ knock, and the officers (who were uniformed and identified themselves as police officers) immediately smelled the strong odor of raw marijuana coming from inside the residence. One of the narcotics officers who smelled the marijuana recognized the odor of marijuana because he was trained to detect the odor, and because he had experienced the smell of marijuana in hundreds of cases handled during his career. As the officers stood at the open door and explained to Edwards why they were there, Edwards moved back and to the side, going behind the open door. Acting for their own safety, the officers stepped into the residence, just inside the door, and grabbed and secured Edwards. Officers found a pistol and $7,000 in cash on Edwards’s person. Once inside the door, one of the officers could see from that position what appeared to be a large amount of raw marijuana a few feet away in clear plastic bags “pretty much everywhere in the kitchen.” Within seconds after entering the residence to secure Edwards, the officers heard heavy footsteps of someone running upstairs in the residence in the direction of the stairs that led from the first floor to the second floor. The officers, who were near the bottom of the stairs, went up the stairs to investigate the potential threat. When they reached the top of the stairs, officers saw a man (later identified as Stewart) run through a room and jump out the second floor window of the residence. At that point, the officers left the residence, secured the door, and waited outside while one of the officers applied for a warrant to search the residence.

As a basis for the search warrant, the officer provided an affidavit to a magistrate court judge setting forth facts supporting the claim that there was probable cause to believe that criminal activity — possession of a large quantity of marijuana — was occurring inside the residence. Aside from the anonymous phone call, the only facts set forth in the application for the warrant were that officers went to the door of the residence to conduct a “knock and talk” investigation, and that, when the occupant of the residence opened the door in response to the knock, one of the officers, who was trained to recognize the odor of marijuana, “smelled the strong odor of green marijuana coming from the residence.” On that basis, the judge granted the search warrant, and about 45 minutes after the initial entry into the residence, the officers re-entered the residence and conducted a search pursuant to the warrant. During this search, police found about ten pounds of marijuana in the kitchen (the same marijuana officers saw during the prior entry to secure Edwards), additional marijuana in the living room and upstairs, and other narcotics in the kitchen area.

In its order granting the motion to suppress, the trial court first considered the testimony from police officers that they initially entered the residence without a warrant out of concern for their own safety in response to Edwards’s movements at the open door. To protect against unnecessary intrusions into a private residence, the Fourth Amendment imposes a warrant requirement on police who seek to enter the residence for purposes of search or arrest. Welsh v. Wisconsin, 466 U. S. 740, 748 (104 SCt 2091, 80 LE2d 732) (1984). Although the Fourth Amendment did not prohibit the officers from approaching the residence and conducting the “knock and talk” investigation at the door (State v. Able, 321 Ga. App. 632, 635 (742 SE2d 149) (2013)), to justify the nonconsensual, warrantless intrusion into the residence, there must have existed probable cause for an arrest or search inside the residence, and a showing of exigent circumstances. Threatt v. State, 240 Ga. App. 592, 595 (524 SE2d 276) (1999). In the present case, the trial court found a lack of exigent circumstances by concluding that testimony from the officers that they entered the residence out of concern for their own safety was not credible. Accordingly, the trial court ruled that “law enforcement [officers] were not lawfully inside the house prior to issuance of any search warrant,” and excluded testimony or other evidence obtained as a result of the illegal entry. But the trial court also found that the Fourth Amendment did not prohibit admission of evidence that, prior to the illegal entry, an officer lawfully present at the door of the residence recognized the odor of marijuana coming from inside the residence. The State does not contest the trial court’s ruling that the officers’ initial warrantless entry violated the Fourth Amendment.

The trial court then considered the validity of the search warrant. In considering this issue, the trial court found that the officers were lawfully at the front door of the residence pursuant to the “knock and talk” investigation, that Edwards opened the door in response to their knock, and that, when he opened the door, the officers smelled the odor of marijuana coming from inside the residence. Nevertheless, the trial court found that the anonymous phone call provided no basis for probable cause to issue the search warrant, and that “the smell detection of marijuana by law enforcement ... is insufficient alone to sustain a finding of probable cause for the issuance of a search warrant” of the residence. Based on these findings, the trial court concluded the search warrant was invalid because the facts set forth in the affidavit seeking the warrant were insufficient to establish probable cause; ruled the search without a valid warrant violated the Fourth Amendment; and granted the motion to suppress evidence obtained by officers pursuant to the search warrant.

The State claims that the trial court erred by ruling, as a matter of law, that the smell of marijuana alone cannot constitute probable cause to issue a warrant to search the residence. In State v. Kazmierczak, 331 Ga. App. 817 (771 SE2d 473) (2015), we held:

If the affidavit for the search warrant contains sufficient information for a magistrate to determine that the officer who detected the odor of marijuana emanating from a specified location is qualified to recognize the odor, the presence of such an odor may be the sole basis for the issuance of a search warrant.

Id. at 823. Kazmierczak overruled contrary authority and recognized that the presence of an odor coming from a particular place may be “ ‘evidence of (the) most persuasive character’ ” in support of probable cause to issue a search warrant. Id. at 822 (quoting Johnson v. United States, 333 U. S. 10, 13 (68 SCt 367, 92 LE 436) (1948)). Accordingly, a police officer qualified by training or experience to recognize the distinctive odor of raw marijuana may reasonably infer from the officer’s detection of that odor coming from a particular place that marijuana will be found in that place. Kazmierczak, supra at 822-823.

Under this standard, the affidavit in support of the search warrant in the present case was sufficient to support the magistrate’s determination that probable cause existed for issuance of the warrant. It follows that the trial court erred by granting the motion to suppress evidence obtained pursuant to the search warrant on the basis that the warrant was invalid for lack of probable cause. The portion of the trial court’s order suppressing evidence obtained pursuant to the search warrant is reversed. The portion of the trial court’s order which the State did not contest — the suppression of evidence obtained as a result of the officers’ initial entry into the residence without a warrant — is affirmed.

Judgment affirmed in part and reversed in part.

Miller and Branch, JJ., concur.

Decided May 7, 2015

D. Victor Reynolds, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellant.

David D. Marshall; Jill E. Stahlman; Lane & Lane, Charles W. Lane, for appellees.

       In the indictment, Edwards and McMillain were also jointly charged with possession of a controlled substance (N-Benzylpiperazine) with intent to distribute, and Edwards was charged with possession of a firearm during the commission of a felony and theft by receiving stolen property.

       The indictment shows that Stephen Arbin Stewart was also jointly charged, along with Edwards and McMillain, with trafficking in marijuana. Although Stewart also adopted Edwards’s motion to suppress with respect to evidence obtained by search of the residence, the State contends that Stewart did not own or reside at the residence, and that he lacks standing to challenge a search of the residence. See Wilder v. State, 290 Ga. 13, 15 (717 SE2d 457) (2011). In any event, the trial court’s order on the motion to suppress shows that the court considered only the challenges raised by Edwards and McMillain.

       The trial court did not directly address an issue arguably raised by the motion to suppress — whether evidence obtained pursuant to the search warrant: (a) was tainted by the initial illegal entry and should be suppressed as the “fruit of the poisonous tree,” or (b) was obtained by means independent of the illegal entry and was purged of the primary taint. See State v. Colvard, 296 Ga. 381, 384, n. 6 (768 SE2d 473) (2015); Teal v. State, 282 Ga. 319, 323-324 (647 SE2d 15) (2007). Although the issue was not directly addressed, we note that the trial court expressly ruled that the sole evidence which established probable cause for the search warrant — the officer’s smell of raw marijuana •— was obtained by means which did not violate the Fourth Amendment.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A15A0648.
    ANGLIN v. MOORE et al.
    (771 SE2d 525)
   DOYLE, Presiding Judge.

Conroy Anglin filed a dispossessory action against Sakinah Moore and Jeremy Ponds (“the tenants”), and the tenants answered and asserted counterclaims including attorney fees. The superior court entered judgment in favor of the tenants, including an award of attorney fees. Anglin filed an application for a discretionary appeal, which this Court granted. On appeal, Anglin argues that the trial court erred by awarding attorney fees to the tenants because they failed tospeciallypleadtheirattorneyfeesclaimunderOCGA § 13-6-11, and to provide notice of their claim pursuant to OCGA § 13-1-11. We disagree and affirm for the reasons that follow.

The record shows that the tenants entered into a one-year lease agreement with Anglin to rent his townhouse. As a part of the agreement, Anglin kept the water bill in his name, but the tenants paid it. At some point, the tenants requested additional time to pay the June 2013 rent. Thereafter, although the tenants were current on the water bill, Anglin had the water turned off to the apartment and closed the account. After about two weeks, the tenants began staying with friends but left their belongings in the townhouse. Anglin then changed the locks and went through the tenants’ items.

Anglin filed a dispossessory action in magistrate court, and the tenants counterclaimed for wrongful eviction, conversion, failure to maintain and make repairs, and breach of contract, and asked for damages, including reasonable attorney fees. The magistrate court entered judgment in favor of the tenants, finding that Anglin’s conduct amounted to trespass, conversion, and unlawful interference with the tenants’ enjoyment of the property and that it resulted in a wrongful constructive eviction, which also breached the lease agreement. Anglin was ordered to pay the following amounts in damages: $500 to refund the tenants’ security deposit; $13,286.50 in damages for the conversion of or damage to the tenants’ property; $1,559 for expenses due to the constructive eviction; $1,000 for trespass and interference with their right of enjoyment; $10,000 in punitive damages; and $4,000 in attorney fees. The magistrate court also ordered Anglin to permit the tenants to enter the townhouse and retrieve their items, which they did on or about July 18, 2013. Anglin then appealed to superior court.

After a bench trial, the superior court found in favor of the tenants on their counterclaims for wrongful constructive eviction, conversion, and breach of contract, and in favor of Anglin on the counterclaim for failure to maintain and make repairs. The superior court entered judgment in the amount of $43,061.86, which included $5,328 in actual damages, $5,000 in punitive damages, $30,475 in attorney fees, and $2,258.86 in legal expenses. Specifically, the trial court explained that “[the tenants were] entitled to recover attorney[ ] fees as the prevailing party in this case under Paragraph 23 of the Lease, and under OCGA § 13-6-11 due to Anglin’s bad faith and stubborn litigiousness.” We granted Anglin’s subsequent application for discretionary review, and this appeal followed.

Anglin argues that the superior court erred by awarding attorney fees to the tenants (1) pursuant to the lease agreement because they failed to give Anglin notice or an opportunity to pay the indebtedness before the fees were due as required by OCGA § 13-1-11 (a) (3); and (2) under OCGA § 13-6-11 because the tenants failed to specially plead and make a prayer therefor as required by that Code section. We find no basis for reversal.

1. Paragraph 23 of the parties’ lease provides: “If any legal action or proceedings be brought by either party of this Agreement, the prevailing party shall be reimbursed for all reasonable attorney[ ] fees and costs in addition to the other damages awarded.” Anglin argues that an award of attorney fees pursuant to this provision is precluded by the tenants’ failure to comply with the notice requirements of OCGA § 13-1-11 (a) (3). We disagree.

OCGA § 13-1-11 (a) (3) provides in relevant part:

Obligations to pay attorney’s fees upon any note or other evidence of indebtedness,.. . shall be valid and enforceable and collectable as a part of such debt if such note or other evidence of indebtedness is collected by or through an attorney after maturity ... [provided that t]he holder of the note or other evidence of indebtedness or his or her attorney at law shall, after maturity of the obligation, notify in writing the maker, endorser, or party sought to be held on said obligation that the provisions relative to payment of attorney’s fees in addition to the principal and interest shall be enforced and that such maker, endorser, or party sought to be held on said obligation has ten days from the receipt of such notice to pay the principal and interest without the attorney’s fees. . . .

The Supreme Court of Georgia has held that

the term “evidence of indebtedness,” as used in OCGA § 13-1-11, has reference to any printed or written instrument, signed or otherwise executed by the obligor(s), which evidences on its face a legally enforceable obligation to pay money.... That definition includes all written leases which impose on the lessee an obligation to pay money.

“OCGA § 13-1-11 ... is not[, however,] applicable to all claims for attorney fees based on a lease provision.” Indeed, paragraph (d) of that Code section provides that “[t]he provisions of this Code section shall not authorize the recovery of attorney’s fees in any tort claim.”

Here, although Anglin sought past due rent and late fees under the lease, the superior court awarded damages against him and in favor of the tenants for wrongful constructive eviction and conversion. It also awarded damages for breach of the lease agreement, but such award was based upon Anglin’s wrongful eviction and was not related to the tenants’ indebtedness under the lease. “Under the circumstances, we do not find that [the tenants’] failure to give the notice under OCGA § 13-1-11 precludes the grant of attorney fees.” Accordingly, because the plain terms of the parties’ lease authorize the award of reasonable attorney fees and costs, the trial court did not err by granting the tenants reasonable attorney fees.

Decided May 1, 2015

Reconsideration denied May 14, 2015

Deming, Parker, Hoffman, Campbell & Daly, Frank E. Pape, Jr., for appellant.

Nelson Mullins Riley & Scarborough, Mark S. VanderBroek, Eliyahu E. Wolfe, for appellees.

Sarah T. Austin, Charles R. Bliss, David A. Webster, amici curiae.

2. In light of our holding in Division 1, we need not address Anglin’s argument regarding OCGA § 13-6-11.

Judgment affirmed.

Phipps, C. J., and Boggs, J., concur.

       Anglin designated only certain portions of the record for inclusion in the appellate record. Accordingly, certain undisputed facts are taken from the superior court’s final order.

       Anglin’s arguments on appeal are limited only to the tenants’ failure to properly plead and provide notice of their attorney fee claims; he does not contest the reasonableness of the attorney fees or any other aspect of the attorney fee award.

       (Citation and punctuation omitted.) RadioShack Corp. v. Cascade Crossing II, 282 Ga. 841, 846 (653 SE2d 680) (2007), quoting Stillwell Enterprises v. Interstate Equip. Co., 266 SE2d 812, 817 (N.C. 1980). See also Ins. Indus. Consultants v. Essex Investments, 249 Ga. App. 837, 844 (4) (549 SE2d 788) (2001) (“Under our law, leases can be ‘evidence of indebtedness’ within the meaning of OCGA § 13-1-11.”) (punctuation omitted).

       (Emphasis supplied.) Ins. Indus. Consultants, 249 Ga. App. at 844 (4).

       Id. (holding that OCGA § 13-1-11 does not apply if the landlord sues only to enforce the term of the lease and there is no indebtedness involved). See also Boddy Enterprises v. City of Atlanta, 171 Ga. App. 551, 552-553 (320 SE2d 374) (1984) (OCGA § 13-1-11 does not apply to a lawsuit that does not involve an indebtedness collected through an attorney after maturity).


text:
    A15A0001.
    KIM v. PARK et al.
    (772 SE2d 799)
   DOYLE, Presiding Judge.

Hyoung G. Kim filed suit against Sunny Seo Park, Global Brokers, Inc., Global Brokers Georgia, LLC, and Sunny Home Realty, Inc. (collectively, “the defendants”). Kim appeals the grant of summary judgment to the defendants, arguing that the trial court erred by granting the motion based solely upon his failure to respond thereto. We disagree and affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

So viewed, the record shows that Park is a licensed real estate broker affiliated at one time with Global Brokers, Inc. Kim engaged Park and Global Brokers, Inc., to manage several of his residential real estate properties. In February 2010, four of Kim’s tenants filed suit against him seeking damages for alleged mold problems in their rental home.

In April 2010, Kim terminated his agency relationship with Park and Global Brokers, Inc., explaining that his wife was going to manage his properties. On May 26, 2010, Park received a phone call from someone asking for Efim’s home address. The caller did not explain why he sought the information, and because she did not know the caller, Park did not divulge Kim’s address. Park did not tell Kim about the call because she no longer had a business relationship with him and did not see any reason to notify him. Park later learned that the caller was a private process server attempting to serve Kim with the lawsuit filed by his former tenants. According to the process server, he did not mention to Park anything about the tenants’ lawsuit.

In December 2010, the Superior Court of Gwinnett County entered a default judgment against Kim, awarding his former tenants $72,331 plus court costs and post-judgment interest. In June 2013, Kim filed the instant action against the defendants, alleging that Park’s failure to inform him of the existence of the tenants’ lawsuit proximately caused the default judgment against him. The case was scheduled for trial on February 10, 2014, but at the defendants’ request, the court entered an order on January 27, 2014, continuing the case for 60 days.

On February 21, 2014, the defendants filed a motion for summary judgment. On March 21,2014, the trial court entered a consent scheduling order, which provided, inter alia, that (1) discovery shall remain open until June 16, 2014; (2) any dispositive motions shall be filed by July 16, 2014, “and responsive briefs are due within ... 30 days”; (3) the case will be placed on a trial calendar 60 days after rulings on the dispositive motions; and (4) “[mjodification of any deadline or hearing date requires the [c]ourt’s approval even if all parties consent to the change.” On March 25, 2014, Kim’s attorney sent an e-mail to defense counsel requesting additional time to respond to the summary judgment motion based on the trial court’s discovery extension. Defense counsel agreed to give Kim until “mid-July” to respond to the motion. The parties did not, however, seek court approval for the extension as required by the scheduling order, nor did they advise the trial court that they had reached such an agreement.

On June 6, 2014, before Kim filed a response to the motion for summary judgment, the trial court entered an order granting summary judgment to the defendants “after consideration of the motion, no response docketed to date, all other matters of record, as well as the applicable and controlling authority.” In its order, the trial court summarized the defendants’ evidence:

(1)... Park did not know about the lawsuit filed against [Kim] by his former tenants...; (2) [Kim]... terminated Ms. Park and Global Brokers, Inc.’s services as property management in April 2010; (3) the process server lookingto serve [Kim] with the suit his former tenants . . . had filed, contacted ... Park on or about May 26, 2010[,] seeking [Kim’s] location information but did not advise ... Park why he was seeking said information; and (4) both Global Brokers Georgia, LLC and Sunny Home Realty, Inc. were formed after [Kim] terminated... Park and Global [Brokers,] Inc.’s services in April 2010 and never had any type of brokerage relationship with [Kim].

Noting that “[t]he burden was then shifted to [Kim] to present evidence to refute same; however, [Kim] completely failed to meet his burden in opposition to the motion,” the trial court then granted summary judgment to the defendants. This appeal followed.

In a single enumeration, Kim contends that the trial court erred by granting the defendants’ motion for summary judgment based on the fact that [Kim] failed to respond thereto. We find no basis for reversal.

Decided May 14, 2015.

Richard S. Yoon, Diona M. Potter, for appellant.

Weissman, Nowack, Curry & Wilco, Ned Blumenthal, Ashoo N. Sharma, for appellees.

Uniform Superior Court Rule (USCR) 6.2 provides:

Unless otherwise ordered by the judge or as provided by law, each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion. Such response shall include or be accompanied by citations of supporting authorities and, where allegations of unstipulated facts are relied upon, supporting affidavits or citations to evidentiary materials of record.

Here, Kim’s response to the motion for summary judgment was due, at most, 33 days after the defendants filed the motion. Kim’s argument that the agreement between counsel sufficed to extend his time to respond to the motion is without merit. First, it was not filed with the trial court as required by OCGA § 9-11-6 (b). More importantly, however, in the consent scheduling order, the trial court specifically required the parties to obtain the court’s consent before modifying the response deadline. Thus, given the parties’ failure to do so, “[w]hatever stipulation was reached, it was not binding on the court at the time the order was issued. . . .”

The trial court did not base its order granting summary judgment solely upon Kim’s failure to respond thereto. Instead, the trial court based its ruling upon the evidence submitted by the defendants, which was supported by the record and unrefuted by Kim. Accordingly, the trial court did not err by granting summary judgment to the defendants.

Judgment affirmed.

Phipps, C. J., and Boggs, J., concur.

       (Citation and punctuation omitted.) Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

       Specifically, Kim asserts claims for violations of OCGA §§ 43-40-25 and 10-6A-6, as well as attorney fees. The claims against the nonindividual defendants are based on the theory of respondeat superior.

       In the defendants’ “Theories of Recovery,” filed with the trial court, they address only Kim’s claims against Park, Global Brokers Georgia, LLC, and Sunny Home Realty, Inc.; the pleading did not address Kim’s claims against Global Brokers, Inc. On appeal, the defendants assert that Global Brokers, Inc., was not a party to the motion for summary judgment because the trial court dismissed Kim’s claims against it for want of prosecution, providing a citation to the appellate record for the purported dismissal. The record cite does not, however, correspond to a dismissal of Global Brokers, Inc.

       The parties initially agreed on an extension until May 26,2014, but later agreed to extend the response time to mid-July.

       On June 16, 2014, Kim filed a motion to set aside the judgment or, in the alternative, to reconsider the order. On July 3, 2014, Earn filed an application for an extension of time to file his notice of appeal, and he filed a notice of appeal that same day. On July 14, 2014, the trial court entered an order denying the extension.

       (Emphasis supplied.)

       See USCR 6.2 and OCGA § 9-11-6 (e) (“Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper, other than process, upon him or her, and the notice or paper is served upon the party by mail or e-mail, three days shall be added to the prescribed period.”).

        Peterson v. American Intl. Life Assurance Co. of New York, 203 Ga. App. 745, 746 (1) (417 SE2d 402) (1992).

       See OCGA § 9-11-56 (c); Peterson, 203 Ga. App. at 746 (1).


author: Miller, Judge.

text:
    A15A0113.
    THE STATE v. BARROW.
    (772 SE2d 802)
   Miller, Judge.

Pursuant to a negotiated plea, James Allen Barrow pled guilty to manufacturing methamphetamine (OCGA § 16-13-30 (b)). Over the State’s objection, the trial court deferred entry of judgment on Barrow’s plea pursuant to the conditional discharge for drug possession statute (OCGA § 16-13-2 (a)) and placed Barrow on probation for five years. The State then filed a motion to vacate or correct Barrow’s sentence, which the trial court denied. The State appeals to this Court, contending that Barrow is ineligible for conditional discharge because (1) he pled guilty to manufacturing methamphetamine, and (2) he had previously been convicted of driving under the influence of drugs (OCGA § 40-6-391 (a) (2)). For the reasons that follow, we agree and therefore reverse.

“The interpretation of a statute is a question of law, which is reviewed de novo on appeal.” (Citation omitted.) Jenkins v. State, 284 Ga. 642, 645 (2) (670 SE2d 425) (2008).

1. Since Barrow pled guilty to manufacturing methamphetamine, the State contends that he is ineligible for conditional discharge under OCGA § 16-13-2 (a), which is only available to defendants who have pled guilty to or been found guilty of drug possession. We agree.

Under OCGA § 16-13-2 (a), the trial court has the discretion to withhold an adjudication of guilt and defer sentencing for drug possession, with the possibility of a complete discharge and dismissal if the defendant successfully completes a probationary period. This statute has been compared to the State’s “first offender” statute, OCGA § 42-8-60. See Andrews v. State, 276 Ga. App. 428, 430 (1) (623 SE2d 247) (2005).

In construing a statute, the determining factor is the intent of the legislature and we look first to the words of the statute to determine what that intent was and if those words [are] plain and unambiguous and the intent may be clearly gathered therefrom, we need look no further[.]

(Citation and punctuation omitted.) Early v. Early, 269 Ga. 415, 416 (499 SE2d 329) (1998); see also OCGA § 1-3-1.

Thus, to determine whether Barrow is eligible for conditional discharge, we must look to the language of OCGA § 16-13-2 (a), which pertinently provides:

Whenever any person . . . pleads guilty to or is found guilty of possession of a narcotic drug, marijuana, or stimulant, depressant, or hallucinogenic drug, the court may without entering a judgment of guilt and with the consent of such person defer further proceedings and place him on probation upon such reasonable terms and conditions as the court may require [.]

(Emphasis supplied.) The unambiguous language of OCGA § 16-13-2 (a) limits its application to those criminal defendants who plead guilty to or are convicted of drug possession.

“Possession ... is defined as the right to exercise power over a corporeal thing.” (Citation and punctuation omitted.) State v. Jackson, 271 Ga. 5 (515 SE2d 386) (1999). On the other hand, “[m]anufacture means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance[.]” (Punctuation omitted.) OCGA § 16-13-21 (15). By expressly mentioning only possession, the statute implicitly excludes other drug offenses, such as manufacturing. See Abdulkadir v. State, 279 Ga. 122, 123 (2) (610 SE2d 50) (2005) (“Georgia law provides that the express mention of one thing in an Act or statute implies the exclusion of all other things.”) (footnote omitted).

Limiting the application of OCGA § 16-13-2 (a) to drug possession is consistent with the legislative scheme criminalizing and punishing drug offenses. Notably, drug possession is criminalized by OCGA § 16-13-30 (a). In contrast, OCGA § 16-13-30 (b) prohibits manufacturing, delivering, distributing, dispensing, administering, selling, and possessing with intent to distribute any controlled substance. Moreover, Georgia law imposes much harsher penalties for these crimes than for mere possession. Compare OCGA § 16-13-30 (c) and (d); see also Bassett v. Lemacks, 258 Ga. 367, 370 (2) (370 SE2d 146) (1988).

Decided May 14, 2015.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellant.

David V. Weber, for appellee.

In denying the State’s motion to vacate or correct Barrow’s sentence, the trial court found that possession, as used in OCGA § 16-13-2 (a) , was intended to be interpreted in the “generic sense,” and thus encompassed trafficking and manufacturing charges as well. Specifically, the trial court found that conditional discharge is available to defendants charged with drug trafficking or manufacturing, as well as possession. Eligibility under the conditional discharge statute, however, turns on the offense for which a defendant is convicted of or which he pleads guilty to, not on the charges filed against him. OCGA § 16-13-2 (a).

The rules of statutory interpretation, clearly, do not permit us to adopt the trial court’s interpretation. “Possession” must be interpreted as referring to the crime of drug possession. See OCGA § 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification shall he applied to all words, except words of art or words connected with a particular trade or subject matter, which shall have the signification attached to them by experts in such trade or with reference to such subject matter.”).

Since OCGA § 16-13-2 (a) unambiguously applies only to defendants who have been found guilty of or pled guilty to drug possession, Barrow is not eligible for conditional discharge under that statute. Accordingly, we reverse and remand this case to the trial court for resentencing.

2. Since we reverse, we need not consider the State’s remaining contention that Barrow is ineligible for conditional discharge because he was previously convicted of driving under the influence of drugs (OCGA § 40-6-391 (a) (2)).

Judgment reversed and case remanded for resentencing.

Andrews, P. J., and Branch, J., concur.

       The State nolle prossed one count of methamphetamine trafficking (OCGA § 16-13-31 (f) (1)) and one count of manufacturing methamphetamine in the presence of a child (OCGA § 16-5-73).

       The State may appeal the imposition of a void sentence or the denial of its motion to amend a void sentence. See State v. Jones, 265 Ga. App. 493, 493-494 (1) (594 SE2d 706) (2004); OCGA § 5-7-1 (a) (6). “A sentence is void if the court imposes punishment that the law does not allow.” Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991).

       Although the State relies on Andrews v. State, 271 Ga. App. 162, 163-165 (609 SE2d 119) (2004) to support its position, in that case the Court held that sentencing under the First Offender Act or the conditional discharge statute was specifically prohibited under the former cocaine trafficking statute (OCGA § 16-13-31 (g) (1) (2004)), which is not at issue here.

       Indeed, at the hearing on the State’s motion to vacate Barrow’s sentence, Barrow conceded that conditional discharge is only available for possession and not for manufacturing.

       Moreover, the State did not properly present this argument for ineligibility to the trial court, but rather raised it for the first time in its Notice of Appeal. We are a court for the correction of errors, and we do not consider issues which were not raised below and ruled on by the trial court. See Ward v. State, 299 Ga. App. 826, 827 (683 SE2d 894) (2009).


author: McFADDEN, Judge.

text:
    A15A0240.
    THE STATE v. JACKSON.
    (772 SE2d 804)
   McFADDEN, Judge.

The state appeals from the trial court’s grant of Marcus Lewis Jackson’s motion to suppress evidence of a statement Jackson made during a custodial interview. See OCGA § 5-7-1 (a) (5) (permitting state to directly appeal from order excluding evidence to be used by state at trial). The state and Jackson stipulated that

the sole issue on th[e] motion [was] whether [the interviewing officer’s] statement to [Jackson], during a [M]irandized custodial interview, that “the only way to get out of here is to be honest” [was] an unconstitutional “hope of benefit” prohibited by ... OCGA § 24-8-824 or a “promise of a collateral benefit” permissible under OCGA § 24-8-825.

The trial court found that the suppressed statement was involuntary because it was induced by a hope of benefit. Because the undisputed evidence shows no hope of benefit — as that phrase has been consistently interpreted — was induced, we reverse.

The only evidence presented at the motion hearing was a video recording of the interrogation, which, with Jackson’s agreement, the state submitted in lieu of the interrogating officer’s testimony. “[W] here controlling facts are not in dispute, such as those facts discernable from a videotape, our review is de novo.” Vergara v. State, 283 Ga. 175, 178 (1) (657 SE2d 863) (2008) (punctuation omitted). Accord Brown v. State, 290 Ga. 865, 868 (2) (a) (725 SE2d 320) (2012); State v. Underwood, 283 Ga. 498, 500 (661 SE2d 529) (2008). Compare State v. Chulpayev, 296 Ga. 764, 771 (2), n. 5 (770 SE2d 808) (2015) (declining to apply de novo review where testimony and other evidence was presented on the issue of voluntariness of defendant’s statement in addition to recording of interview in which statement occurred).

The video recording depicts the following exchange between the interrogating officer and Jackson, culminating in the alleged promise that induced a hope of benefit:

OFFICER: You’ve got a son, right?
JACKSON: Daughter.
OFFICER: Daughter. How old?
JACKSON: One.
OFFICER: One. I think I saw a picture of her. You love that little girl, don’t you?
JACKSON: I do.
OFFICER: You’d do anything in the world for her, wouldn’t you?
JACKSON: [nods]
OFFICER: Keep that in mind. Because if you — if you’re not honest with us, you’re not helping her, and that’s what you need to worry about. Because she’s got a long road and she’s going to need her daddy. She’s going to need you, you know? Whether you and momma get along, fine, great, you know, that’s not the issue. She needs both parents and being inside here ain’t helping, but the only way out of here is to be honest. The only way to actually look to the future is to be honest.

(Emphasis supplied.)

The video recording also depicts earlier statements by the officer that Jackson argues provide context for the alleged promise that induced a hope of benefit. Jackson points to the officer’s statement that “[b]eing honest and truthful about things shows that you will correct that mistake, and that you’re deeply sorry for what you’ve done. And that’s what helps you out in the long run, more than anything, more than another detective or another officer telling you say ‘hey man, I’ll help you out,’ be honest.” He also points to the officer’s statement that “[y]our own words and your own character helps you more than anything. That’s what the jury likes to see, that’s what the judge wants to see. It’s not your words, it’s your actions. Actions go a long way.”

This case is governed by the Evidence Code that took effect January 1, 2013. The two relevant Code provisions — OCGA §§ 24-8-824 and 24-8-825 — are substantively the same as provisions in Georgia’s earlier Evidence Code and we give them the same meaning as the former Code provisions. See Chulpayev, 296 Ga. at 771 (2). The provisions, read in tandem, see Brown, 290 Ga. at 868 (2) (b), provide that, “[t]o make a confession admissible, it shall have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury,” OCGA § 24-8-824, and that “[t]he fact that a confession has been made under a spiritual exhortation, a promise of secrecy, or a promise of collateral benefit shall not exclude it.” OCGA § 24-8-825.

This context makes it clear that [OCGA § 24-8-824] does not encompass every conceivable benefit that the police may offer a suspect in an effort to induce him to confess. Indeed, [our Supreme] Court consistently and for many decades has interpreted the phrase “slightest hope of benefit” as used in [the predecessor Code sections to OCGA § 24-8-824] to focus on promises related to reduced criminal punishment — a shorter sentence, lesser charges, or no charges at all.

Brown, 290 Ga. at 868-869 (2) (b) (citations omitted). “Apromise not relating to charges or sentences has been held to constitute only a ‘collateral benefit[.]’ ” Pulley v. State, 291 Ga. 330, 333 (2) (729 SE2d 338) (2012) (citations and punctuation omitted).

The officer’s comments, as shown on the video recording, did not reflect a promise related to charges or sentences that would require the exclusion of Jackson’s statement. While the officer encouraged Jackson to tell the truth, “[a]dmonitions to tell the truth will not invalidate a confession.” Sosniak v. State, 287 Ga. 279, 286 (1) (B) (695 SE2d 604) (2010) (citation and punctuation omitted). “It is not improper for the police to encourage a suspect to help [him] self by telling the truth. It also does not render a statement involuntary for the police to tell a suspect that the trial judge may consider [his] truthful cooperation with the police.” Taylor v. State, 274 Ga. 269, 273 (2) (553 SE2d 598) (2001) (citations omitted).

Jackson cites State v. Robinson, 326 Ga. App. 63 (755 SE2d 869) (2014), for the proposition that sometimes a defendant can infer a hope of benefit from the police’s encouragement of truthfulness. In that case, we held that an officer’s statement that “[t]he person that cooperates is the person that gets help” indicated to the appellant that if he cooperated truthfully he would get a lighter sentence than two accomplices. Id. at 66. We noted, however, that the indication of a lighter sentence arose within the context of the appellant’s knowledge that the accomplices were also being interviewed by police. Id. That specific context does not exist here.

In this case, even if the officer’s statement that “the only way out of here is to be honest” could be construed as a promise that if J ackson were honest he would be released, “such statement! ] hi context did not constitute a hope of benefit because no one promised [Jackson] that he would not be charged with a crime or that he would receive reduced charges, sentencing or punishment if he made incriminating statements.” Woodall v. State, 294 Ga. 624, 629 (4) (754 SE2d 335) (2014) (citation omitted) (involving statement by interrogating officer that appellant could go home). Accord Brown, 290 Ga. at 869 (2) (b) (involving promise that, whatever defendant said, he would be “going home” after interview); Overton v. State, 295 Ga. App. 223, 243-244 (16) (671 SE2d 507) (2008) (involving appellant who made custodial statement so that he would be released from jail). Accordingly, the trial court erred in holding that Jackson’s custodial statement was induced by hope of benefit and therefore involuntary.

Judgment reversed.

Ellington, P. J., and Dillard, J., concur.

Decided May 14, 2015.

Jack Browning, Jr., District Attorney, Matthew S. Nestrud, Assistant District Attorney, for appellant.

Julie C. Moore, for appellee.


author: McFadden, Judge.

text:
    A15A0325.
    ESTRADA v. THE STATE.
    (772 SE2d 810)
   McFadden, Judge.

Hugo Estrada was indicted for one count of armed robbery. After a jury trial, Estrada was convicted of the lesser included offense of robbery. Estrada now appeals the conviction. He argues that he had a right under the Georgia Constitution to be present during a particular interaction between the trial court and the jury and that the violation of this right warrants a reversal of his conviction. We find that Estrada waived this issue and therefore affirm.

After the closing arguments in Estrada’s jury trial, the trial court instructed the jury on, among other things, the need for unanimity and the option of convicting Estrada of robbery as a lesser included offense of armed robbery. An hour and forty-five minutes after beginning deliberations, the jurors sent written questions to the court. The court, the prosecutor, and defense counsel entered the jury room to respond. Although the communication was not transcribed, afterward the trial court made a record of what had occurred. According to the trial court, the court

along with the attorneys for both the [sjtate and the accused went to the jury room to respond to the note . . . [t]hat basically had to do with the question of the verdict being unanimous and how to deal with the question of the lesser-included offense. The [cjourt explained that the verdict had to be unanimous and that [the jurors] ... can consider ... a lesser-included offense if they feel it is appropriate. After giving an explanation as to how a lesser-included offense [was] to be considered, both counsel were satisfied as to the [c]ourt’s explanation of that.

After making this record, the trial court asked the prosecutor and defense counsel if they had “[a]ny questions or objections or exceptions as to what [the trial court] said to the jury in the jury room.” In response, defense counsel replied, “No, sir, none.”

Decided May 14, 2015.

Christopher R. Geel, Jimmonique R. S. Rodgers, Tyler R. Conklin, Edward P. Dettmar, for appellant.

Rosemary M. Greene, District Attorney, Stewart D. Bratcher, Assistant District Attorney, for appellee.

Estrada argues that the trial court violated his right to be present when the court answered the jury’s questions in his absence. See Morris v. State, 257 Ga. 781, 784 (4) (364 SE2d 571) (1988) (“[A]ny answers to . . . questions [from the jury related to their decision process] must be given in open court with the accused and his counsel present.”). A violation of the defendant’s right under the Georgia Constitution to be present at critical stages of the proceedings is presumed to be prejudicial; violating this right warrants a “reversal and remand for a new trial whenever the issue is properly raised on direct appeal.” Peterson v. State, 284 Ga. 275, 279 (663 SE2d 164) (2008) (citations omitted). However, a defendant may waive that right. Id.

Estrada does not dispute that he was present in the courtroom when, after the jury room visit,

a summary of the communication [ ] was placed on the record by the trial judge and agreed to by the prosecuting attorney and defense counsel[. B]ut there is no indication on the record that [Estrada] objected himself or sought to have his trial counsel object on his behalf. . . . [Estrada] had opportunities to discuss [the jury room] visit[ ] with counsel after the fact and assert any objections he had, but the record is silent in that regard. We conclude, therefore,... that any objection to the communication with the jury... was waived.

Fuller v. State, 277 Ga. 505, 506-507 (2) (591 SE2d 782) (2004). Consequently, Estrada has not shown that he is entitled to reversal, and we affirm his conviction.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.


text:
    A15A0471.
    YOUNG v. THE STATE.
    (772 SE2d 807)
   McFADDEN, Judge.

After a jury trial, Brandon Ray Young was convicted of aggravated assault on a correctional officer and aggravated battery on a correctional officer. He appeals, challenging the sufficiency of the evidence. Because a rational trier of fact could have found from the evidence that Young was guilty of each offense beyond a reasonable doubt, we affirm.

In considering whether the evidence was sufficient to support a defendant’s convictions, “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) (citation omitted; emphasis in original). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’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 May 27, 2010, correctional officers escorted Young into the fingerprinting room of the Henry County jail. Another correctional officer entered the room to obtain a set of gloves. When that officer leaned over to retrieve the gloves, Young reached over, raised his cuffed hands, and struck the officer’s head with his fists. The officer fell against a door and collapsed to the ground, losing consciousness.

1. Aggravated battery on a correctional officer.

Young argues that the evidence was insufficient to authorize his conviction for aggravated battery on a correctional officer. That offense requires a showing that a person “maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.” OCGA § 16-5-24 (a). “The bodily member need not be rendered permanently useless, and even the temporary reduced use of a bodily member may be sufficient to render it useless under the aggravated battery statute.” Walls v. State, 283 Ga. App. 560, 561 (1) (642 SE2d 195) (2007) (citation and punctuation omitted). “Aperson who knowingly commits the offense of aggravated battery upon a correctional officer while the correetional officer is engaged in . . . his or her official duties” is subject to an increased minimum term of imprisonment for the offense. OCGA § 16-5-24 (e) (2).

The state alleged that the correctional officer’s head was rendered useless by Young’s strike. Young argues that no evidence showed that he rendered the officer’s head useless, even temporarily. We disagree. A video recording of the incident, shown to the jury at trial, depicted Young striking the officer in the head and the officer collapsing to the ground, and the officer testified that she lost consciousness upon being struck, stating: “I . . . leaned over to get gloves out and then everything went black. I opened my eyes and I was on the floor.” The jury was authorized to find from this evidence that Young committed aggravated battery on a correctional officer. See Scott v. State, 243 Ga. App. 383, 384-385 (1) (b) (532 SE2d 141) (2000) (evidence that defendant’s blows to victim’s head caused memory lapses and nerve damage authorized finding that defendant committed aggravated battery by depriving victim of a member of her body).

2. Aggravated assault on a correctional officer.

Young challenges the sufficiency of the evidence that he had committed the offense of aggravated assault on a correctional officer. Pertinent to this case, “[a] person commits the offense of aggravated assault when he or she assaults... [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injuryf.]” OCGA § 16-5-21 (b) (2). “Aperson who knowingly commits the offense of aggravated assault upon a correctional officer while the correctional officer is engaged in . . . his or her official duties” is subject to an increased minimum term of imprisonment for the offense. OCGA § 16-5-21 (f) (2).

The evidence in this case authorized a finding that Young committed the offense of aggravated assault against the victim. There was evidence that he struck her in the head with his fists while wearing handcuffs. “[Wjhether [Young’s] hands and fists were objects used in a manner likely to result in serious injury was a question of fact for the jury to determine.” Hewitt v. State, 277 Ga. 327, 331 (1) (e) (588 SE2d 722) (2003) (citations omitted). See Gamble v. State, 235 Ga. App. 777, 777-778 (1) (510 SE2d 69) (1998) (finding evidence that handcuffed defendant struck victim with his hands, fists, and handcuffs sufficient to sustain conviction for aggravated assault).

Furthermore, the evidence permitted the jury to conclude that, at the time of the assault, Young knew the victim was a correctional officer working in her official capacity. There was evidence that the victim had worked as a correctional officer at the jail for nearly two years before the attack and, at the time of the attack, she was in uniform and performing work consistent with her official duties. See Chandler v. State, 204 Ga. App. 816, 822 (4) (421 SE2d 288) (1992) (evidence that victim was in police uniform and acted in manner consistent with her official capacity as a police officer authorized finding that defendant knew she was a police officer).

Nevertheless, Young argues that the state failed to show that he “knowingly made this assault,” pointing to evidence of his “ ‘bizarre’ behaviors and mental instability.” Because he cites no authority to support this argument, however, it is not clear whether Young is arguing that he lacked the necessary criminal intent to commit the offense of aggravated assault, see generally Cline v. State, 199 Ga. App. 532, 533 (2) (405 SE2d 524) (1991) (describing criminal intent required for aggravated assault), that he lacked the capacity to distinguish between right and wrong in relation to his act against the correctional officer, see OCGA § 16-3-2, or that he acted as he did as part of a delusional compulsion, see OCGA § 16-3-3.

In any event, the evidence of Young’s mental capacity did not require his acquittal. “[M]ental abnormality, unless it amounts to insanity, is not a defense to a crime.” Thomas v. State, 320 Ga. App. 101, 105 (2) (739 SE2d 417) (2013) (citations and punctuation omitted). Although the evidence included witness testimony that Young was known to act irrationally and impulsively, and two mental health evaluations recounting Young’s various mental health diagnoses, it also included the following conclusion from one of those evaluations:

[T]here is insufficient evidence to indicate that Mr. Young was suffering from a severe thought disturbance around the time of the alleged act [against the correctional officer]. He did not report experiencing hallucinations or delusions at the time of the offense. The available evidence does not indicate that Mr. Young suffered from a delusional compulsion which overmastered his will to resist committing the instant offenses. Additionally, there is no evidence that Mr. Young was unable to differentiate right from wrong at the time of the alleged act.

In light of this evidence, the jury was authorized to reject the argument that Young did not “knowingly make th[e] assault” due to “mental instability.”

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.

Decided May 14, 2015.

Teresa L. Smith, for appellant.

James L. Wright III, District Attorney, Atha H. Pryor, Sandra G. Rivers, Assistant District Attorneys, for appellee.


text:
    A15A0601.
    CALLOWAY v. THE STATE.
    (772 SE2d 812)
    Decided May 14, 2015.

      J. Philip Cannon, for appellant.
   McFadden, Judge.

On appeal from his convictions for aggravated assault and robbery by force, Ernest Calloway argues that he received ineffective assistance of trial counsel in several respects. But Calloway did not challenge his trial counsel’s effectiveness in a motion for new trial. The record contains only an initial motion for new trial, filed by Calloway’s trial counsel, that did not allege ineffective assistance. In fact, trial counsel was not permitted to allege his own ineffectiveness in that motion. See Hood v. State, 282 Ga. 462, 463 (651 SE2d 88) (2007). Although Calloway obtained new post-conviction counsel more than a year before the trial court ruled on the motion for new trial, Calloway did not amend the motion to add a claim for ineffective assistance.

“[T]he rule that an ineffectiveness claim must be raised at the earliest practicable moment requires that the claim be raised before appeal if the opportunity to do so is available[.]” Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996) (citations and punctuation omitted; emphasis in original). Calloway did not raise his claim of ineffectiveness at the earliest practicable moment, when he obtained new post-conviction counsel. Consequently, he did not preserve that claim for appellate review. See Deloatch v. State, 295 Ga. 681, 683 (2) (763 SE2d 480) (2014); Glover, 266 Ga. at 184 (2). Because ineffective assistance of trial counsel is the only error Calloway has enumerated on appeal, we affirm.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.

Gregory W. Edwards, District Attorney, Kathryn O. Fallin, Cania Brown-Gordon, Assistant District Attorneys, for appellee.


author: ELLINGTON, Presiding Judge.

text:
    A14A2159.
    JAMES v. BANK OF AMERICA, N.A. et al.
    (772 SE2d 812)
   ELLINGTON, Presiding Judge.

Raymona James filed this action in the Superior Court of Cobb County against Bank of America, N.A. (“BAÑA”) and Federal National Mortgage Corporation (“Fannie Mae”), asserting claims for, among other things, wrongful foreclosure, breach of contract, intentional infliction of emotional distress, and violation of the Fair Business Practices Act (“FBPA”). After discovery and an unsuccessful mediation, BAÑA and Fannie Mae filed a joint motion to dismiss the complaint for failure to state a claim upon which relief could be granted. James filed a motion for contempt against Fannie Mae for its conduct during mediation. The trial court granted BANAand Fannie Mae’s motion and dismissed James’s claims, and denied James’s motion for contempt. For the reasons that follow, we reverse the trial court’s ruling as to James’s claims for wrongful foreclosure and breach of contract, but we affirm in all other respects.

On appeal, BAÑA and Fannie Mae’s motion to dismiss will be treated as a motion for judgment on the pleadings, because it was filed after the pleadings were closed and was predicated on the complaint and the documents incorporated therein. See OCGA § 9-11-12 (c); Haldi v. Piedmont Nephrology Assoc., 283 Ga. App. 321, 321-322 (641 SE2d 298) (2007). We construe the complaint and all reasonable inferences in favor of James, and conduct a de novo review of the trial court’s ruling. See McCobb v. Clayton County, 309 Ga. App. 217 (710 SE2d 207) (2011). The motion “should not be granted unless the averments in the complaint disclose with certainty that [James] would not be entitled to relief under any state of facts which could be proved in support of [her] claim.” (Citation and punctuation omitted.) Id.

So construed, the record shows that in March 2012, James filed the instant complaint against BAÑA and Fannie Mae stemming from the foreclosure of certain real property (the “Property”) that secured a promissory note executed by James. The nonjudicial foreclosure sale was conducted pursuant to a power of sale contained in Paragraph 22 of the security deed executed by James. That provision required that, prior to a foreclosure, James be provided notice specifying:

(a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to [her], by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by [the security deed] and sale of the Property.

James alleged in her complaint, among other things, that she was not provided notice prior to the conduct of the foreclosure sale. This alleged lack of notice, at least in part, forms the basis of her claims for wrongful foreclosure, breach of contract, intentional infliction of emotional distress, and violation of the FBPA.

The parties attended a mediation but failed to resolve the dispute. Following the mediation, James filed a motion for contempt, asserting that Fannie Mae violated the local court rules by failing to send a representative to the proceeding with the authority to settle the lawsuit.

BAÑA and Fannie Mae also filed a motion, contending that James failed to state a claim upon which relief could be granted in that she alleged only that she had not received notice, but failed to properly assert that notice had not been sent. The trial court accepted this argument and dismissed James’s complaint after concluding that “[her] contention that she did not receive any notice does not equate to a properly supported allegation that BANA did not mail notice to her.” This appeal follows.

1. James contends that the trial court erred in granting judgment on the pleadings as to her claim for wrongful foreclosure. Georgia law requires that “[p]owers of sale in deeds of trust, mortgages, and other instruments shall be strictly construed and shall be fairly exercised.” OCGA § 23-2-114. This includes a mandate that “[n]otice of the initiation of proceedings to exercise a power of sale ... be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure.” OCGA § 44-14-162.2 (a). And “[when] a foreclosing creditor fails to comply with the statutory duty to provide notice of sale to the debtor in accordance with OCGA § 44-14-162 et seq., the debtor may either seek to set aside the foreclosure or sue for damages for the tort of wrongful foreclosure.” Roylston v. Bank of America, 290 Ga. App. 556, 559 (1) (b) (660 SE2d 412) (2008); accord Calhoun First Nat. Bank v. Dickens, 264 Ga. 285, 285-286 (1) (443 SE2d 837) (1994).

BANA and Fannie Mae continue to assert on appeal that James alleged only that she failed to receive notice of the foreclosure. But this argument is belied by the record. In the complaint, James specifically pled that BANA foreclosed on the Property “without having sent proper notice to [her] as required by OCGA § 44-14-162.2 or indeed any notice at all.” Further, James repeats in numerous places throughout the complaint that BANA failed to “send” or to “provide” her with the requisite notice of the foreclosure proceedings. These allegations are sufficient to set forth a claim for wrongful foreclosure, and the trial court erred in dismissing that claim. See Babalola v. HSBC Bank, USA, 324 Ga. App. 750, 753 (2) (a) (751 SE2d 545) (2013) (holding that debtor’s allegation that mortgage holder failed to provide him with the statutorily required notice of foreclosure was sufficient to state a claim for wrongful foreclosure); see also Roylston v. Bank of America, 290 Ga. App. at 559 (1) (b) (reversing grant of summary judgment to foreclosing creditor based on evidence that it failed to afford debtor the statutory notice provided by OCGA § 44-14-162.2 (a)).

2. James further argues that the trial court erred in granting judgment on the pleadings as to her claim for breach of contract. Under Georgia law, “a security deed which includes a power of sale is a contract and its provisions are controlling as to the rights of the parties thereto and their privies.” Stewart v. SunTrust Mtg., 331 Ga. App. 635, 638 (3) (770 SE2d 892) (2015) (punctuation omitted). Further, “[a] lender owes a borrower a duty to exercise a power of sale in a security deed fairly, which includes complying with statutory and contractual notice requirements.” Thompson-El v. Bank of America, 327 Ga. App. 309, 310-311 (2) (759 SE2d 49) (2014).

In her complaint, James asserts that BANA breached the terms of the security deed by failing to provide proper notice of default and her right to cure as mandated by Paragraph 22 of that deed. These allegations are sufficient to support a breach of contract claim, and the trial court erred in dismissing it. See Babalola v. HSBC Bank, USA, 324 Ga. App. at 755 (2) (b) (holding that complaint alleging that creditors failed to comply with the notice provisions contained in the security deed stated a claim for breach of contract); see also Stewart v. SunTrust Mtg., 331 Ga. App. at 638 (3) (same).

3. James contends that the trial court erred in granting judgment on the pleadings as to her claim for intentional infliction of emotional distress.

Georgia has long recognized a cause of action for intentional infliction of emotional distress. However, the burden which the plaintiff must meet in order to prevail in this cause of action is a stringent one. To prevail, a plaintiff must demonstrate that: (1) the conduct giving rise to the claim was intentional or reckless; (2) the conduct was extreme and outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. The defendant’s conduct must be so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.

Thompson-El v. Bank of America, 327 Ga. App. at 312 (3) (punctuation omitted).

In her complaint, James sets forth no additional facts in support of her intentional infliction of emotional distress claim beyond those asserted above, namely BANA’s failure to provide her with proper notice of the foreclosure. The trial court did not err in concluding that she “failed to allege any acts by [BANA] that were extreme and outrageous or that her emotional distress was so severe that no reasonable person could be expected to endure it.” Thompson-El v. Bank of America, 327 Ga. App. at 313 (3). Consequently, the grant of judgment on the pleadings as to this claim was proper. See id. (affirming dismissal of plaintiff’s claim for intentional infliction of emotional distress based upon bank’s foreclosure, allegedly without her knowledge, and subsequent attempts to remove her from the property); Racette v. Bank of America, 318 Ga. App. 171, 179 (3) (733 SE2d 457) (2012) (holding that appellant’s allegation that creditor conducted foreclosure sale despite knowing of inaccuracies in the published foreclosure advertisements “cannot be described as extreme, outrageous, atrocious, intolerable or beyond the bounds of decency”) (punctuation omitted). Compare DeGolyer v. Green Tree Servicing, 291 Ga. App. 444, 449-450 (4) (662 SE2d 141) (2008) (reversing trial court’s directed verdict on plaintiff’s claim for intentional infliction of emotional distress when evidence showed that creditor foreclosed on the wrong property despite having received notice of that fact).

4. James asserts that the trial court erred in granting judgment on the pleadings as to her claim for a violation of Georgia’s FBPA, again based upon the same lack of notice allegations. The FBPA prohibits “[ujnfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce.” OCGA § 10-1-393 (a). Exempted from its scope, however, are “[ajctions or transactions specifically authorized under laws administered by or rules and regulations promulgated by any regulatory agency of this state or the United States.” OCGA § 10-1-396 (1). And because residential mortgage transactions are regulated by both state and federal law, the FBPA does not apply. See Stewart v. SunTrust Mtg., 331 Ga. App. at 640 (5); Chancellor v. Gateway Lincoln-Mercury, 233 Ga. App. 38, 45 (2) (502 SE2d 799) (1998) (“The General Assembly intended that the Georgia FBPA have a restricted application only to the unregulated consumer marketplace and that FBPA not apply in regulated areas of activity . . .”); see also Zinn v. GMAC Mtg., No. 1:05 CV 01747 MHS, 2006 WL 418437, at *4 (N.D. Ga. Feb. 21, 2006) (“[T]he [Georgia] FBPA does not apply to residential mortgage transactions.”). It follows that the trial court did not err in granting judgment on this claim.

5. Finally, James argues that the trial court erred in denying her motion for contempt, in which she alleged that Fannie Mae failed to participate in the mediation in good faith by refusing to send a representative with the authority to settle the case in violation of the local mediation rules. The trial court held as a factual matter, however, that the representative sent to the mediation on behalf of both BAÑA and F annie Mae possessed full knowledge of the facts and dispute at issue, and possessed full authority to settle the case on behalf of both defendants without further consultation. This holding is supported by a sworn affidavit by the representative in attendance.

We will affirm a trial court’s order granting or denying a motion for civil contempt if there is any evidence to support the ruling. See Harrison v. CGU Ins. Co., 269 Ga. App. 549, 554 (604 SE2d 615) (2004). The trial court’s denial of James’s motion is fully supported by the record, and we will not disturb it.

In summary, we reverse the trial court’s grant of judgment on the pleadings as to James’s claims of wrongful foreclosure and breach of contract, but we affirm the judgment in all other respects.

Judgment affirmed in part and reversed in part.

Phipps, C. J., concurs. McMillian, J., concurs in judgment only.

Decided May 15, 2015.

Thomas R. Mondelli, for appellant.

McGuireWoods, Andrew G. Phillips, Jarrod S. Mendel, for appellees.

       To the extent that James’s brief raises alternative bases for her claims that are not contained in the complaint, they will not be considered.

       In her complaint, James also included a claim to quiet title and sought declarative and injunctive relief based upon what she alleged to be an invalid assignment of the security deed. The trial court rejected her argument and held that the assignment was valid, and her brief contains vague assertions that the trial court erred in doing so. Her assertions are not supported by argument or legal authority, however, and will therefore not be considered. See Court of Appeals Rule 25 (c) (2); Cuyler v. Capital One Bank (USA), 304 Ga. App. 687, 689 (4) (698 SE2d 14) (2010).

       Contrary to the trial court’s holding, the boilerplate language contained in the deed under power which states that the requisite notices were sent in compliance with Georgia law is not conclusive evidence of that fact.


author: Dillard, Judge.

text:
    A15A0093.
    ARMENTROUT v. THE STATE.
    (772 SE2d 817)
   Dillard, Judge.

Renee Armentrout was stopped at a police checkpoint and arrested for driving under the influence of alcohol. Following a stipulated bench trial, she was convicted of driving under the influence of alcohol to the extent it was less safe for her to do so (DUI less safe) and driving under the influence of alcohol with an excessive blood-alcohol concentration (DUI per se). On appeal, Armentrout contends that the trial court erred in denying her motions to suppress evidence recovered from the traffic stop and the results of the State-administered chemical test, arguing that the checkpoint was unlawful and the police officer’s reading of the implied-consent warning was misleading. For the reasons set forth infra, we agree that the checkpoint was unlawful and, thus, reverse Armentrout’s convictions.

Viewed in the light most favorable to the trial court’s findings and judgment, the evidence shows that on June 29, 2011, Sergeant Ronnie Young — an officer in the Johns Creek Police Department (who supervised day-to-day traffic-enforcement operations) — submitted a written proposal to his superior officer to establish a traffic task force, which would conduct several traffic-safety checkpoints during the upcoming Fourth of July weekend. In addition to specifying the times and locations for the checkpoints, the proposal noted that the goal of the task force was to “establish safety checkpoints to enhance safe travel” through the city and that the “primary purpose of who are under the influence of drugs and/or alcohol.” Young’s superior approved the proposal, and Johns Creek police officers (including Sergeant Young) began implementing the checkpoints two days later.

At approximately 6:30 p.m. on July 4, 2011, Armentrout stopped at the traffic checkpoint that officers had established at the intersection of Bell Road and Cauley Creek Drive. Upon approaching Armentrout’s vehicle and requesting her driver’s license, Sergeant Young smelled alcohol and noticed that Armentrout’s eyes were watery. Additionally, Armentrout spoke with a slight slur and admitted that she had been drinking “a little bit.” Then, after administering an alco-sensor breath test (which returned a positive result), Sergeant Young asked another officer to have Armentrout perform field-sobriety tests. The second officer did so, and the tests indicated that Armentrout was indeed impaired. Consequently, the officer arrested Armentrout, read her the implied-consent notice, and asked if she would consent to a blood-alcohol test. When Armentrout initially asked what would happen if she refused, the officer read the relevant part of the implied-consent notice to her again. Armentrout then consented to testing, which showed that her blood-alcohol concentration exceeded the legal limit.

The State charged Armentrout, via accusation, with one count of driving under the influence of alcohol to the extent that it was less safe for her to do so (DUI less safe) and one count of driving under the influence of alcohol with an excessive blood-alcohol concentration (DUI per se). Shortly thereafter, Armentrout filed a motion to suppress the evidence garnered as a result of the traffic stop, arguing that the checkpoint was unlawful, as well as a separate motion in limine to exclude the blood-alcohol test results, arguing that the officer’s re-reading of the implied-consent notice was misleading. But after holding a combined evidentiary hearing on these issues, the trial court denied both of her motions. Subsequently, Armentrout agreed to a stipulated bench trial, which concluded with the trial court finding her guilty on both the DUI per se and DUI less safe charges. This appeal follows.

At the outset, we note that when the facts material to a motion to suppress are disputed, “it generally is for the trial judge to resolve those disputes and determine the material facts.” This principle is well established, and our Supreme Court has “identified three corollaries of the principle, which limit the scope of review in appeals from a grant or denial of a motion to suppress in which the trial court has made express findings of disputed facts.” An appellate court generally must (1) accept a trial court’s findings unless they are clearly erroneous, (2) construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court, and (3) limit its consideration of the disputed facts to those expressly found by the trial court. But we review de novo the trial court’s “application of law to the undisputed facts.” With these guiding principles in mind, we turn now to Armentrout’s claims of error.

1. Armentrout contends that the trial court erred in denying her motion to suppress, arguing that the checkpoint was unlawful because the State failed to prove that the Johns Creek Police Department’s overall checkpoint program had a legitimate primary purpose. We agree.

The Supreme Court of the United States has interpreted the Fourth and Fifth Amendments to permit police roadblocks or checkpoints, holding that although the stops need not be based on probable cause, they must still be conducted in a manner making them reasonable under the Fourth Amendment. And when a defendant challenges his initial stop at a police checkpoint by way of a motion to suppress, the State “bears the burden of proving that the seizure was constitutional.”

The requirements for determining the constitutionality and lawfulness of a police checkpoint under Georgia law were set forth initially in LaFontaine v. State, which held that

[a] roadblock is satisfactory where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the screening officer’s training and experience is sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

Importantly, these factors are not general guidelines, but are instead “minimum constitutional prerequisites.”

Two years after the Supreme Court of Georgia issued its opinion in LaFontaine, the Supreme Court of the United States, in City of Indianapolis v. Edmond, supplemented LaFontaine’s test for evaluating the implementation and operation of the particular checkpoint with “a distinct requirement focused on the law enforcement agency’s checkpoint program.” Analyzing that decision, our Supreme Court recently noted that “LaFontaine’s requirement that the decision to implement a particular roadblock be made by ‘supervisory personnel’ is distinct from Edmond’s requirement that the roadblock program have a primary purpose other than the general interest in crime control.” Thus, at a minimum, the State must show that

the law enforcement agency’s checkpoint program had an appropriate primary purpose other than ordinary crime control — a purpose examined at that programmatic level, rather than by trying to determine the motives of the supervisor who implemented and the officers who conducted the particular checkpoint at issue.

Here, Sergeant Young testified that although he would submit checkpoint proposals, including the checkpoint at issue, to a superior officer, he generally had supervisory responsibilities with regard to implementing checkpoints. He further testified that the proposal for this particular task force and series of checkpoints was submitted and approved several days before implementation. Sergeant Young also stated that the checkpoint stopped all vehicles, was well-identified, was conducted by well-trained officers, and only minimally delayed motorists. In addition, as noted supra, the State introduced the proposal submitted by Sergeant Young, which stated that the goal of the July 4th Task Force was “to establish safety checkpoints to enhance safe travel” through the city and that the “primary purpose of the checkpoints [was] to conduct a check of driver’s licenses, and to identify drivers who are under the influence of drugs and/or alcohol.” And during the hearing, Sergeant Young reiterated that this was indeed the checkpoint’s primary purpose.

Decided May 15, 2015.

William C. Head; Merchant Law Firm, Ashleigh B. Merchant, for appellant.

Nevertheless, although the checkpoint implemented by Sergeant Young and the other Johns Creek police officers may have met the requirements mandated by LaFontaine, the State failed to prove that the checkpoint program had an appropriate primary purpose. As noted supra, the State presented evidence that this checkpoint had a lawful purpose. However, a finding that a particular checkpoint has a primary purpose other than ordinary crime control is “not enough to satisfy the Edmond requirement.” Indeed, Edmond requires “an examination of the policy purpose of the checkpoints, viewed at the programmatic level, to ensure that an agency’s checkpoints are established primarily for a lawful and focused purpose like traffic safety rather than to detect evidence of ordinary criminal wrongdoing.” And here, there was no testimony nor any written evidence admitted regarding the Johns Creek Police Department’s checkpoint policy or program as a whole. We are, therefore, constrained to conclude that the checkpoint at which Armentrout was stopped violated the Fourth Amendment. Accordingly, the trial court erred by denying Armentrout’s motion to suppress.

2. Given our holding in Division 1, we need not address Armentrout’s remaining claims of error.

Judgment reversed.

Ellington, P. J., and McFadden, J., concur.

CarmenD. Smith, Solicitor-General, R. LeonBenham, Assistant Solicitor-General, for appellee.

        See Hammont v. State, 309 Ga. App. 395, 396 (710 SE2d 598) (2011).

        See OCGA § 40-5-67.1 (b) (2).

        See OCGA § 40-6-391 (a) (1).

        See OCGA § 40-6-391 (a) (5).

        Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015); see also Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

        Hughes, 296 Ga. at 746 (1).

        See id.; State v. Hargis, 294 Ga. 818, 823 (2), n. 12 (756 SE2d 529) (2014); Hammont, 309 Ga. App. at 396.

        See Hughes, 296 Ga. at 746 (1); Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148) (2013); Hammont, 309 Ga. App. at 396.

        See Hughes, 296 Ga. at 746 (1); Miller v. State, 288 Ga. 286, 287 (1) (702 SE2d 888) (2010).

        State v. Conner, 322 Ga. App. 636, 637 (745 SE2d 837) (2013); see also Young v. State, 310 Ga. App. 270, 271 (712 SE2d 652) (2011).

        See U. S. Const. amends. IV & V.

        See Michigan Dep’t of State Police v. Sitz, 496 U. S. 444, 450 (110 SCt 2481, 110 LE2d 412) (1990).

        Williams v. State, 293 Ga. 883, 886 (2) (750 SE2d 355) (2013) (punctuation omitted); accord Brown, 293 Ga. at 799; see also OCGA § 17-5-30 (b).

       269 Ga. 251 (497 SE2d 367) (1998).

        Id. at 253 (3).

        Conner, 322 Ga. App. at 638 (punctuation omitted).

       531 U. S. 32 (121 SCt 447, 148 LE2d 333) (2000).

        Williams, 293 Ga. at 891 (3) (b); accord Brown, 293 Ga. at 798-99 (2) (e); see also Edmond, 531 U. S. at 48 (III) (holding that to comply with the Fourth Amendment, a checkpoint program must have, in addition to safeguards on the implementation and operation of the checkpoints, a primary purpose other than “the general interest in crime control”).

        Williams, 293 Ga. at 888 (3); accord Brown, 293 Ga. at 796 (2) (d).

        Brown, 293 Ga. at 799 (2) (f) (emphasis supplied); see Edmond, 531 U. S. at 48 (III).

        Williams, 293 Ga. at 891 (3) (b); see also Brown, 293 Ga. at 796 (2) (d).

        Williams, 293 Ga. at 891 (3) (b) (emphasis supplied); see also Brown, 293 Ga. at 796 (2) (d).

        See Williams, 293 Ga. at 892-93 (3) (b) (reversing trial court’s denial of defendant’s motion to suppress because State failed to make necessary showing that county sheriff’s office’s checkpoint program was properly limited to a lawful and focused purpose like traffic safety, and, therefore, challenged roadblock was unconstitutional); Charales v. State, 329 Ga. App. 533, 536 (1) (765 SE2d 701) (2014) (reversing trial court’s denial of defendant’s motion to suppress because, even though specific checkpoint at issue may have been implemented for a proper purpose, the State failed to present any evidence that Atlanta Police Department’s checkpoint program as a whole had an appropriate primary purpose).


author: Ray, Judge.

text:
    A15A0513.
    ATTAWAY v. THE STATE.
    (772 SE2d 821)
   Ray, Judge.

A Richmond County jury convicted Tracey Antonio Attaway of one count of armed robbery (OCGA § 16-8-41 (a)), one count of aggravated assault (OCGA § 16-5-21 (b) (2)) and two counts of possession of a knife during the commission of a crime (OCGA § 16-11-106 (b)). He appeals from that conviction, arguing that the evidence was insufficient to support his convictions and that he was improperly sentenced on the armed robbery conviction. For the following reasons, we reverse Attaway’s convictions for armed robbery and one count of possession of a knife during the commission of a crime, affirm his remaining convictions, and remand the case to the trial court for resentencing.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence adduced at trial shows that the day after Thanksgiving, Kevin Laird, a loss prevention manager at Best Buy, was informed that a co-worker observed Attaway open a sealed box and attempt to put a laptop computer down his pants. As Laird approached Attaway, he observed the laptop box in Attaway’s shopping cart and noticed that he was trying to conceal a laptop with his shirt. Laird told Attaway that he needed to recover the evidence, and Attaway responded that he did not know what Laird was talking about. Tommy Walker, another store employee, approached, and Attaway tried to run away. Attaway and Walker were involved in a scuffle which knocked over several customers and store displays. Laird testified that Attaway pulled out a knife to effectuate his escape during the scuffle. Laird told the crowd of customers to get away because Attaway had a knife, and Attaway ran out the store’s front door. Attaway dropped the laptop while running. After checking on those inside, Laird went to the door and saw Attaway scuffling with some Marines who had been collecting items for Toys for Tots outside.

Patrick Youssef, a Best Buy customer that day, testified that he saw the scuffle begin and that he saw Attaway holding a knife during his interaction with Walker. Youssef testified that once Attaway was outside, he fell down and that “Marines [were] standing over him. And then [Attaway] got up and did almost a jump step . . . and it almost looked like he was trying to go through and over the Marine and he was above him and stabbed down into his back.” Youssef testified that it did not appear that the stabbing was an accident. Youssef, a doctor, tended to the Marine’s wound until EMTs arrived. He testified that the wound was located near the Marine’s spine, was three to four centimeters long, and was “bleeding pretty profusely.”

Sergeant Phillip Duggan was the Marine stabbed by Attaway. He testified that he had been collecting for Toys for Tots outside the store when he saw a man running outside the store and heard someone yell “someone get him.” Attaway attempted to run around Duggan, and both men fell, a scuffle ensued, and Attaway was subdued on the ground by other Marines. Duggan noticed that Attaway had a knife during the scuffle, and once Attaway was secured, he realized that he had been stabbed in the back. Other Marines testified that they witnessed Attaway stab Duggan and that the act did not appear to be accidental. A knife with a four-inch blade was recovered from Attaway.

When Attaway was arrested, more stolen Best Buy merchandise was discovered on his person, including two cameras, batteries, a PlayStation 3 accessory, and chargers. Subsequent examination of the laptop box revealed that it had been sliced with a blade and not ripped open.

Attaway was then transported to the sheriff’s office. After being advised of his Miranda rights, he initially stated that he “would keep his statements to himself[.]” Attaway then changed his mind and asked to make a statement without being recorded. Attaway asked what he had been charged with, to which the interviewing officer responded, aggravated assault, armed robbery and possession of a knife during the commission of a crime. Attaway claimed that he did not try to hurt anyone. When the officer informed him that several people saw him stab Duggan, Attaway stated “well[,] I’ll give you that one[,] but I didn’t rob anybody.”

1. Attaway contends that the evidence was insufficient to support each of his convictions. In weighing the sufficiency of the evidence, this Court construes the evidence at trial, and all reasonable inferences drawn from it, most strongly in favor of the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. Brown v. State, 293 Ga. App. 633, 633 (667 SE2d 899) (2008). We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Id. We will address each conviction in turn.

(a) Attaway contends that the evidence was insufficient to support his armed robbery conviction because the State “failed to establish that [Attaway] used the knife offensively and failed to show that [the knife] was used to effectuate an unlawful taking.” We agree.

Armed robbery occurs when the defendant, “with intent to commit theft, . . . takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16-8-41 (a). This Court has held that the “offensive weapon must be used as a concomitant to a taking which involves the use of actual force or intimidation (constructive force) against another person which must either precede or be contemporaneous with, and not subsequent to, the taking.” (Punctuation and footnotes omitted.) Oliver v. State, 232 Ga.App. 816, 817 (1) (503 SE2d 28) (1998). Accord McKissic v. State, 178 Ga. App. 23, 23-24 (1) (341 SE2d 903) (1986).

The indictment charged that Attaway committed armed robbery in violation of OCGA § 16-8-41 (a) by taking a laptop computer and other Best Buy merchandise “from the immediat[e] presence of Tommy Walker, by use of a knife, an offensive weapon.” The State therefore was required to prove beyond a reasonable doubt that Attaway’s use of the knife occurred “prior to or contemporaneously with the taking.” (Citations and punctuation omitted.) Fox v. State, 289 Ga. 34, 36 (1) (b) (709 SE2d 202) (2011). Our Supreme Court has held that the “ ‘taking’ of property is not a continuing transaction which ends only when the defendant leaves the presence of the victim. Instead, the taking is complete once control of the property is transferred involuntarily from the victim to the defendant, even if only briefly.” (Citations omitted.) Id. Accord Hicks v. State, 232 Ga. 393, 402-403 (207 SE2d 30) (1974).

In Hicks, the defendant entered the victim’s house while she was asleep. He first took her wallet and then awakened her at gunpoint to demand more money. When he did not receive any, he left. Our Supreme Court declined to adopt the State’s theory that the taking of the billfold was a “continuing transaction that ended only when [the defendant] left the house.” (Citation omitted.) Hicks, supra at 403. Rather, the Court found “it impossible to reconcile the theory of a ‘continuing transaction’ with previous decisions . . . which have held that force used in an attempt to escape with property taken by larceny does not transform the crime into robbery.” (Citations and punctuation omitted.) Id. Concluding that the “taking” in the case occurred when the wallet was removed from the victim’s purse while the victim was asleep, and not thereafter, our Supreme Court reversed the armed robbery conviction.

Here, Attaway was already in possession of the laptop computer and Best Buy merchandise when confronted by employees Laird and Walker. Although there is evidence showing that Attaway used the knife in his attempt to escape the store with the stolen merchandise, there is no evidence that he used the knife in an offensive manner to possess the merchandise in the first place. Rather, Attaway’s use or threats to use the knife occurred after the theft was completed. Accordingly, under our Supreme Court’s rationale in Fox, we are constrained to agree that the evidence was insufficient to support Attaway’s conviction of armed robbery. See Harrell v. State, 321 Ga. App. 707, 709 (1) (742 SE2d 521) (2013) (evidence that defendant used or threatened to use a knife after the taking was completed, rather than prior to or contemporaneously with the taking, was insufficient to support conviction of armed robbery). Compare Alford v. State, 204 Ga. App. 14, 15 (418 SE2d 397) (1992) (defendant’s display of closed knife in his hand prior to taking possession of beer was sufficient to sustain conviction of armed robbery). Therefore, Attaway’s conviction of armed robbery is reversed, and the case is remanded for resentencing on the remaining counts.

(b) Attaway argues that there was insufficient evidence to support his aggravated assault conviction because the evidence “at trial failed to establish that [Attaway] used the knife intentionally against Duggan.” We disagree.

A person commits the offense of aggravated assault when he assaults another with a deadly weapon. OCGA § 16-5-21 (b) (2). To prove the offense, the State must show that a defendant intended “to commit the act which in fact places another in reasonable apprehension of injury or actually results in injury, not a specific intent to cause such apprehension or injury.” (Punctuation and footnote omitted.) Ganaway v. State, 282 Ga. 297, 299 (2) (647 SE2d 590) (2007).

Here, there was evidence that Youssef and several Marines at the scene witnessed Attaway use the knife in his attempt to escape and to stab Duggan, and they testified that the act did not appear to be accidental. This is sufficient to support his conviction. See Cockrell v. State, 281 Ga. 536, 537 (1) (640 SE2d 262) (2007) (evidence sufficient to support conviction of aggravated assault and possession of a knife during the commission of a crime when defendant, armed with a knife, stabbed an unarmed victim during a physical altercation).

(c) Attaway correctly contends that one count of his possession of a knife during the commission of a felony must be reversed because it was premised on the armed robbery count, which was without sufficient evidentiary support. See King v. Waters, 278 Ga. 122, 123-124 (2) (598 SE2d 476) (2004); Jackson v. State, 309 Ga. App. 24, 29 (1) (b) (709 SE2d 44) (2011). However, as we affirmed his conviction for aggravated assault, we affirm the remaining count of possession of a knife during the commission of a felony, which was predicated on that aggravated assault charge.

Decided May 18, 2015.

Robert L. Persse, for appellant.

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

2. Because we reverse Attaway’s armed robbery conviction, we need not reach his enumeration of error that he received an improper sentence for that conviction.

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

Barnes, P. J., and McMillian, J., concur.


author: BARNES, Presiding Judge.

text:
    A15A0254.
    U.S. FOODSERVICE, INC. v. GOURMET SERVICES, INC.
    (772 SE2d 824)
   BARNES, Presiding Judge.

U.S. Foodservice, Inc. (U.S. Foods) sued Gourmet Services, Inc., on an open account and served the company’s registered agent. Gourmet Services failed to answer, and more than 45 days after service, U.S. Foods filed a motion for default judgment. Four days later, the trial court dismissed the complaint, holding that “Plaintiff has failed to establish a prima facie case, or state a claim, for a complaint on account.” For the reasons that follow, we reverse.

U.S. Foods argues on appeal that the trial court erred in dismissing its complaint for failure to state a claim and erred in denying its motion for a default judgment. We agree.

A suit on open account is available as a simplified procedure to the provider of goods and services where the price of such goods or services has been agreed upon and where it appears that the plaintiff has fully performed its part of the agreement and nothing remains to be done except for the other party to make payment.

(Citations and punctuation omitted.) Five Star Steel Constr. v. Klockner Namasco Corp., 240 Ga. App. 736, 738-739 (1) (c) (524 SE2d 783) (1999).

Here, U.S. Foods alleged in its complaint that Gourmet Services owed $5,942.78 principal plus interest on an open account, and attached a copy of Gourmet Services’ credit application and a statement establishing the amount of its debt. Gourmet Services’ registered agent was served on April 2, 2014, and on June 2, 2014, the trial court issued an “Order to Prosecute Matter” noting that the defendant appeared to be in default and directing U.S. Foods to move for default judgment or formally notify the court of its intent to pursue the matter by June 13,2014. The court instructed that failure to comply would “be deemed as an election to voluntarily dismiss” the case.

On June 9, 2014, U.S. Foods moved the court to enter a default judgment against Gourmet Services, and its attorney attached his affidavit stating when the complaint was filed, when the defendant was served, that no answer had been filed, that the action was based on an open account and did not involve unliquidated damages, and that pre-judgment interest began to accrue in September 2012. On June 13, 2014, the trial court issued a final order, denying the motion for default judgment and dismissing the complaint. The court found that the defendant had not filed a timely answer and was in default, but then found that U.S. Foods failed to tender “an authenticated invoice or testimony that the invoice remains unpaid,” nor was the complaint verified as required by American Arbitration Assn. v. Bowen, 322 Ga. App. 51, 52-53 (1) (743 SE2d 612) (2013). Thus, the court concluded, U.S. Foods had failed to establish a prima facie case or state a claim for a suit on account, and dismissed the complaint.

The evidentiary requirements cited by the trial court to establish a plaintiff’s entitlement to judgment in a suit on open account are inapplicable when the defendant is in default. A defendant who fails to answer within 30 days of service is in default, although it has a right to open the default for 15 days upon payment of costs. OCGA § 9-11-55 (a). If the case remains in default after the expiration of 15 days,

the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury, unless the action is one ex delicto or involves unliquidated damages. . . . An action based upon open account shall not be considered one for unliquidated damages within the meaning of this Code section.

Id. U.S. Foods’ suit sought liquidated damages, and therefore both liability and damages were established when Gourmet Services failed to answer within 45 days of service.

Decided May 19, 2015.

Gonzalez Saggio & Harlan, James W. Hays, Bernard E. Potter, for appellant.

[A] defendant in default is in the position of having admitted each and every material allegation of the plaintiff’s petition except as to the amount of [ex delicto or unliquidated ex contractu] damages alleged. The default concludes the defendant’s liability, and estops him from offering any defenses which would defeat the right of recovery.

(Citation and punctuation omitted.) Cohran v. Carlin, 254 Ga. 580, 585 (3) (331 SE2d 523) (1985).

Accordingly, the trial court erred in denying U.S. Foods’ motion for default judgment and dismissing its complaint.

Judgment reversed.

Ray and McMillian, JJ., concur.