author: ANDREWS, Presiding Judge.

text:
    A15A1678.
    SIDHI INVESTMENT CORPORATION v. THRIFT.
    (785 SE2d 552)
   ANDREWS, Presiding Judge.

Vicki Lee Thrift sued Sidhi Investment Corporation for injuries she sustained in a fall at a Nahunta convenience store owned by Sidhi. Sidhi moved for summary judgment, arguing that, because it was an out-of-possession landlord, it was not responsible to third parties for damages resulting from the negligence of the tenant. See OCGA § 44-7-14. In response, Thrift argued that a question of fact remained as to whether Sidhi was an out-of-possession landlord because Sidhi maintained a beer and liquor license and a business license for the store. The Superior Court of Brantley County summarily denied Sidhi’s motion, granted Sidhi a certificate of immediate review, and we granted Sidhi’s application for interlocutory appeal. For the reasons that follow, we conclude that the trial court erred in denying Sidhi’s motion for summary judgment, and, therefore, we reverse.

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. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. Further, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Medical Center Hosp. Auth. v. Cavender, 331 Ga. App. 469, 470 (771 SE2d 153) (2015). This Court reviews a grant or denial of summary-judgment de novo and construes the evidence in the light most favorable to the nonmovant. See, e.g., Citifinancial Svcs. v. Varner, 320 Ga. App. 170 (739 SE2d 477) (2013). So viewed, the evidence reveals that on July 17, 2013, while shopping at the BP Food Mart in Nahunta, Thrift slipped on dirt, sand, or a greasy substance and fell, sustaining injuries.

Niteshkumar “Nick” Patel is the sole officer and stockholder of Sidhi. Sidhi purchased the BP Food Mart in Nahunta in 2012 and operated the store for some time thereafter. On March 3, 2013, Sidhi leased the convenience store to Shivam Trading. Paragraph 8 of the parties’ lease agreement provided that Shivam would be “responsible for all repairs and maintenance, including all electrical, heating and air, plumbing, doors, windows, ceiling, floor, exterior and interior walls.” The lease agreement also required Shivam to obtain general liability insurance naming Sidhi as an additional insured. However, the lease agreement reserved Sidhi’s right to enter the store “for the purposes of inspection, repair or showing to prospective purchaser” or future tenant.

Shivam continued to operate the store until September 2013. Patel had no involvement in the operation of the store during the lease term. In fact, throughout the term of the lease, Patel visited the store only once as he traveled through Nahunta. When Shivam defaulted on payments due for the store’s insurance in September 2013, Sidhi regained possession of the store.

In its sole enumeration of error, Sidhi argues that the trial court erred in denying Sidhi’s motion for summary judgment because it was an out-of-possession landlord with no liability for injuries to third parties as a matter of law. We agree. OCGA § 44-7-14 provides:

Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.

“Under this Code section, an out-of-possession landlord is not liable to third persons for damages in tort unless it is shown that the damages resulted either from failure to repair the premises or faulty construction of the premises.” (Punctuation omitted.) Gainey v. Smacky’s Investments, 287 Ga. App. 529, 530 (2) (652 SE2d 167) (2007). See also Martin v. Johnson-Lemon, 271 Ga. 120, 123 (1) (516 SE2d 66) (1999) (“A landlord’s tort liability to a third person who is injured on property which was relinquished by rental or under a lease is determined by OCGA § 44-7-14.”) (punctuation omitted); Food Giant v. Richardson, 169 Ga. App. 517, 518 (1) (313 SE2d 781) (1984). Alandlord’s liability for “failure to repair” arises only

in instances where there is a duty to repair and notice has been given of the defect. Such duty does not include a duty of maintenance. Rather, the term “repair” contemplates an existing structure which has become imperfect, and means to supply in the original structure that which is lost or destroyed, and thereby restore it to the condition in which it originally existed, as near as may be.

(Punctuation omitted.) Gainey, 287 Ga. App. at 530 (2) (a).

There are no such allegations in this case. To the contrary, rather than alleging that an imperfect structure caused her fall, Thrift simply alleged that she slipped on an unknown substance on the floor. Moreover, in a provision consonant with OCGA § 44-7-14, the parties’ lease agreement clearly required Shivam to be solely “responsible for all repairs and maintenance, including all electrical, heating and air, plumbing, doors, windows, ceiling, floor, exterior and interior walls.” Finally, Sidhi’s right to enter the store “for the purposes of inspection, repair or showing to prospective purchaser” or future tenant does not render it liable for injuries caused by its tenant’s negligence. See Lake v. APH Enterprises, LLC, 306 Ga. App. 317, 319 (702 SE2d 654) (2010) (“Landlords still fully part with possession of leased premises when they retain limited entry or inspection rights for landlord-related purposes.”); Webb v. Danforth, 234 Ga. App. 211, 212 (505 SE2d 860) (1998). As a result, there is no genuine issue of material fact that Sidhi was an out-of-possession landlord and that its motion for summary judgment should have been granted. See OCGA § 44-7-14; Boone v. Udoto, 323 Ga. App. 482, 486 (3) (747 SE2d 76) (2013); Lake, 306 Ga. App. at 319; Gainey, 287 Ga. App. at 530 (2); Webb, 234 Ga. App. at 212; Food Giant, 169 Ga. App. at 518 (1).

In response to Sidhi’s motion, Thrift submitted a purported affidavit from the clerk of the City of Nahunta stating that Sidhi obtained a beer and liquor license and a business license in January 2013, and that both licenses were in effect and remained in Sidhi’s name on the date of Thrift’s fall. Pretermitting the fact that the clerk’s affidavit does not satisfy the statutory criteria for affidavits opposing a motion for summary judgment, the apparent failure to transfer or update the business licenses does not alter the fact that, as a result of the parties’ lease agreement, Sidhi “fully parted with possession and the right of possession” and delegated maintenance of the floor to Shivam. See OCGA § 44-7-14; Boone, 323 Ga. App. at 487 (3); Lake, 306 Ga. App. at 319; Gainey, 287 Ga. App. at 530 (2); Webb, 234 Ga. App. at 212; Food Giant, 169 Ga. App. at 518 (1). See also Colquitt v. Rowland, 265 Ga. 905, 906 (1) (463 SE2d 491) (1995) (“the use of the tenements really belongs to the tenant during the lease; they are his property to use for the term for which they are rented; and the landlord has no right to enter upon them, except by permission of the tenant, during the term for which they are rented” (citation and punctuation omitted)). It follows that there is no genuine issue of material fact that Sidhi is entitled to judgment as a matter of law, and, as a result, the trial court erred in denying Sidhi’s motion for summary judgment.

Decided March 10, 2016 —

Reconsideration denied April 5, 2016.

Judgment reversed.

Miller, R J., and Rickman, J., concur in judgment only.

Young, Thagard, Hoffman, Smith, Lawrence & Shenton, James B. Thagard, Brian J. Miller, for appellant.

Earl D. Smith, Jr.; C. Deen Strickland, for appellee.

       According to the parties, Thrift has filed a separate action against Shivam in the Superior Court of Brantley County.

       See OCGA § 9-11-56 (e) (affidavits either supporting or opposing motions for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein”). Most importantly, there is no statement that the purported affidavit was based upon the affiant’s personal knowledge. See OCGA § 9-11-56 (e); Worley v. Pierce, 211 Ga. App. 863, 865 (2) (440 SE2d 749) (1994) (affidavit did not contain “an averment or affirmatively show that it was made based upon [affiant’s] personal knowledge”); Brown v. Apollo Indus., 199 Ga. App. 260, 261-262 (1) (404 SE2d 447) (1991) (affidavit improper because it “contained no averment that it was made on the personal knowledge” of affiant and contained “[n] o factual basis... other than a reference to the label of the product, which was not attached to the affidavit”). Compare Greenstein v. Bank of the Ozarks, 326 Ga. App. 648, 651 (2) (757 SE2d 254) (2014) (“a statement in an affidavit that it is based upon personal knowledge is generally sufficient to meet the requirement that affidavits be made upon such knowledge”). In addition, although the purported affidavit refers to licenses issued by the City of Nahunta, the purported affidavit does not include “[s]worn or certified copies of all papers or parts thereof referred to in [the] affidavit.” OCGA § 9-11-56 (e). See also Brotan, 199 Ga. App. at 261-262 (1). Nevertheless, Sidhi did not object to the clerk’s affidavit during the hearing on Sidhi’s motion for summary judgment. As a result, any infirmity in the clerk’s affidavit is waived. See, e.g., Chapman v. McClelland, 248 Ga. 725, 726 (2) (286 SE2d 290) (1982); Shuford v. Aames Plumbing and Heating, Inc., 327 Ga. App. 844, 847 (1) (761 SE2d 395) (2014); Formaro v. SunTrust Bank, 306 Ga. App. 398, 399-400 (1) (702 SE2d 443) (2010).


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A15A2132.
    EDMONSON v. THE STATE.
    (785 SE2d 563)
   Ray, Judge.

A jury convicted Alfred Edmonson of false imprisonment (Count 1) and aggravated sodomy (Count 3) based upon his acts with a teenage victim named K. D. Edmonson filed a motion for new trial, which the trial court denied. Edmonson appeals, contending the trial court erred in admitting, over objection, evidence of certain alleged sexual acts with a different teenage girl, N. R., as extrinsic offenses under OCGA § 24-4-404 (b). For the reasons that follow, we affirm.

Viewing the evidence in the light most favorable to uphold the guilty verdict, on October 11, 2012, K. D., a 17-year-old girl, was working as a prostitute on Old National Highway when Edmonson, a 41-year-old man, drove up and asked her for a “date.” In exchange for $40 for the date, the victim agreed to sex in her room at the Super 8 motel. When the victim got in the car, Edmonson started driving away from the Super 8 and refused to turn around even after the victim informed him multiple times that the Super 8 was in the opposite direction. When the victim realized that Edmonson was not going to turn around, she “no longer felt safe” and tried to open the car door in an attempt to escape. Edmonson hit her in the face. They began to fight, but K. D. gave up because Edmonson was punching her in the mouth. The victim testified that she was scared and did not feel free to leave. Edmonson stopped the car and ordered the victim to take off her clothes, and she complied.

Instead of taking K. D. to the Super 8 as agreed, Edmonson took her to his house. The victim-informed Edmonson that she did not want to go inside and told him “that he could let me go, that I didn’t know him, he didn’t know me, so this could be the last time we ever saw each other.” The victim wanted to run away and would have if she “felt like there was an opportunity” to do so. Edmonson told K. D. to get dressed, and they both went inside the house.

Inside the house, Edmonson called the police; he told them that he had rescued K. D. from being abused by her pimp and that he was trying to get her help. The victim thought an officer was coming and that this would be over soon. While she was waiting on the officer, Kelly Ealy, who was Edmonson’s female roommate, “best friend[,]” and mother of his child, came downstairs. Ealy noticed the victim looked scared and “was in a fixed daze.” Edmonson told Ealy that he was helping K. D., and Ealy went back upstairs.

While K. D. and Edmonson were sitting on the couch, Edmonson asked her to “perform oral sex on him.” Despite her protests, Edmonson would not listen and pushed the victim’s head toward his penis. K. D. was scared, and she complied.

Thereafter, Edmonson laid back on the couch with the victim, wrapped his arms around her, and fell asleep. At some point, Edmonson woke up and demanded that she have sex with him. She complied because she “wanted the whole experience to be over and [she] was still scared of what he might be capable of.”

At trial, the State presented evidence of other acts that involved Edmonson having vaginal and oral sex with N. R., a 15-year-old female runaway. N. R. met Edmonson at a Super Bowl party where she gave him oral sex. Edmonson did not force her to have sex, and N. R. testified that she wanted to do so. When the party was over, N. R. went with Edmonson back to his house to “be with him,” which she understood to mean to have a relationship. Then, N. R. and Edmonson went to a club where he encouraged her to strip in the parking lot for money, which she did. When they were back in the car, Edmonson punched N. R. three times in the face for embarrassing him by asking to leave the club.

After returning to Edmonson’s home, N. R. stayed the night and had sex with Edmonson in the morning. The next day, N. R. again spent the night and had sex with him. N. R. testified that Edmonson did not force her to have sex with him. However, N. R. then lied to Edmonson and told him that someone in her family died because she “didn’t want to be there no more.” N. R. testified that she was afraid to leave because she believed Edmonson would hit her again. Ealy dropped N. R. off at a McDonald’s on her way to work.

As a result of his sexual acts with N. R., Edmonson was charged with statutory rape, enticing a child, child molestation, and aggravated child molestation. He was acquitted of the statutory rape, enticing a child, and child molestation charges. The jury was hung on the aggravated child molestation count, which was based upon sodomy and N. R.’s age, rather than the use of force.

Before trial, the State argued that Edmonson’s other acts with N. R. demonstrated his intent to seek out vulnerable young women, who are medium-to-short-build African-Americans who are slightly overweight, and exploit them in sexual ways. The State explained its theory of intent by saying that the girls, as described, “colloquially... would be his type.” After hearing argument, the trial court ruled the evidence was admissible to show intent and plan.

1. Edmonson contends the trial court erred in admitting into evidence his other acts with N. R. under OCGA § 24-4-404 (b) to demonstrate intent and plan.

Under OCGA § 24-4-404 (b) in the new Evidence Code:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

Further, under OCGA § 24-4-403, evidence admissible under OCGA § 24-4-404 (b) may still be excluded “if its probative value is substantially outweighed by[, among other things,] the danger of unfair prejudice].]” The trial court’s decision to admit OCGA § 24-4-404 (b) evidence is reviewed for a “clear abuse of discretion.” (Citation and punctuation omitted.) Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015).

Pretermitting whether the trial court’s decision to admit the other acts evidence pursuant to OCGA § 24-4-404 (b) to demonstrate intent and plan was correct, an issue which we do not address, any error in doing so was harmless given the overwhelming evidence in this case of Edmonson’s guilt.

The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict. In determining whether the trial court error was harmless, we review the record de novo, and we weigh the evidence as we would expect reasonable jurors to have done so as opposed to viewing it all in the light most favorable to the jury’s verdict.

(Citations and punctuation omitted.) Peoples v. State, 295 Ga. 44, 55 (4) (c) (757 SE2d 646) (2014).

The trial court’s order assumed without deciding that the inclusion of the OCGA § 24-4-404 (b) evidence was an error, concluding that “it should be found to be harmless error given the overwhelming evidence in this case.” The trial court cited K. D.’s testimony, Ealy’s testimony that she saw K. D. performing oral sex on Edmonson and that K. D. looked scared, the responding officer’s testimony that she observed a cut on the inside of the victim’s lip, Edmonson’s denial of having any sexual contact with the victim, and a taped jail phone call played at trial.

As summarized by the trial court in its order denying Edmonson’s motion for new trial, the jail call contained a conversation between Edmonson and Ealy, where Edmonson instructed Ealy that because she has not yet given her written statement, that he is “ ‘gonna give Pier] what to write’ ” and “no one will be able to say she is lying.” Edmonson instructs Ealy that her written statement should say:

[T]he defendant woke her up to tell her the victim had been in an altercation and needed help. [She] went downstairs and invited the victim to sit in the living room; she could see the defendant and the victim sitting on separate couches, and heard the defendant talking to the victim like a “big brother,” giving her words of advice and encouragement, and then the defendant called 911 at 5:20 or 5:25 . . . (at which point Ealy interrupts him and says they must get their timing “right.” After discussing the timing, Edmonson continues)... [T]he victim asked for and was given a phone charger, and that the defendant fell asleep while waiting for the police and she and the victim woke [the defendant] up at 7:00 or 7:10.

Then, Ealy informs Edmonson that the “first part” of the story was great, but that the timing of the “second part” of the story was bad since it was unclear what happened between the 911 call and 7:00. Edmonson responds that Ealy “must” say Edmonson was asleep upstairs the whole time. According to the trial court’s order, “Ealy expressed] surprise about the upstairs detail because the defendant had not mentioned that before. Then the tape ends.”

Here, we would expect reasonable jurors to have weighed the evidence and found Edmonson guilty of false imprisonment and aggravated sodomy based upon the evidence presented, even without considering his other acts with K. D. People, supra at 55 (4) (c). The jury heard K. D.’s firsthand account of her false imprisonment and aggravated sodomy. K. D.’s testimony included her repeated statements that she “no longer felt safe,” was scared and did not feel free to leave, and that she “wanted the whole experience to be over and [she] was still scared of what he might be capable of.” K. D. also testified that Edmonson pushed her head toward his penis, and she performed oral sex on him. Her testimony included all of the elements required to find both false imprisonment and aggravated sodomy. See OCGA §§ 16-6-2 (a) (2) (“[a] person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person”); 16-5-41 (a) (“[a] person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority”).

The testimony of the victim was bolstered by the responding police officer’s testimony that K. D. had a cut “on the inside of her lip[,]” which was consistent with K. D.’s claims of aggravated sodomy. The officer further testified that she discussed the incident with Edmonson, and “[h]e told [her] that he had not had any sexual contact with [K. D.].”

However, Edmonson’s assertions that he had no sexual contact with K. D. was contradicted by Ealy when she testified that she saw K. D. giving Edmonson oral sex. Ealy also gave support to K. D.’s false imprisonment and aggravated sodomy claims when she testified that at times during K. D.’s stay at Edmonson’s house, K. D. looked scared and “was in a fixed daze.”

Finally, the recorded jail call between Edmonson and Ealy indicated that Edmonson and Ealy were attempting to cover up what happened the night when K. D. was at their house, since they were fabricating Ealy’s story. It also further demonstrated Edmonson’s tendency to lie and attempts to control the women around him.

Given the evidence discussed above, which does not include the OCGA § 24-4-404 (b) evidence admitted at trial, “it is highly probable that the error did not contribute to the verdict.” (Citation and punctuation omitted.) Peoples, supra at 55 (4) (c). By considering the trial record as a whole and weighing the evidence “as we would expect reasonable jurors to have done so,” we are convinced that the jury would have found Edmonson guilty of aggravated sodomy and false imprisonment without the OCGA § 24-4-404 (b) evidence. (Citation and punctuation omitted.) Id.

We also note that the other acts evidence presented by the State included Edmonson having oral and vaginal sex with N. R. If this evidence had a prejudicial effect on the verdict, it stands to reason that it would have affected both the aggravated sodomy and the rape counts. However, Edmonson was acquitted of the rape count and was only convicted of aggravated sodomy, which further indicates that the error did not contribute to the verdict. Peoples, supra at 55 (4) (c).

2. Additionally, we note that the evidence may have been admissible under OCGA § 24-4-413, which allows for the admission of “evidence of the accused’s commission of another offense of sexual assault” in sexual assault cases. OCGA § 24-4-413 (a). This statute requires that “the prosecutor shall disclose such evidence to the accused, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least ten days in advance of trial[.]” OCGA § 24-4-413 (b). In the Notice of State’s Intention to Present OCGA § 24-4-404 (b) Evidence, the State claimed that “[cjopies of reports, accusation/indictment, if any, and guilty pleas or verdicts, if any are included herewith or previously provided.” But, after reviewing the record, we cannot determine whether the State did, in fact, provide these reports, guilty pleas, or verdicts. Further, we acknowledge the obvious, that the trial court did not at trial or thereafter consider whether the provisions of OCGA § 24-4-413 applied to the other acts evidence admitted in this case.

The challenge to the trial court’s decision to admit the other acts evidence to demonstrate intent and plan might be moot if such evidence was otherwise admissible under OCGA § 24-4-413. However, because we have already found that any error in admitting the evidence under OCGA § 24-4-404 (b) to be harmless, if it was indeed an error, we need not decide whether the evidence was admissible under OCGA § 24-4-413.

We affirm the trial court’s decision.

Judgment affirmed.

Barnes, P. J., and Peterson, J., concur.

Decided March 18, 2016 —

Reconsideration denied April 5, 2016.

Vernon H. Smith, for appellant.

Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

       The jury acquitted Edmonson of rape (Count 2). The State nolle prossed a sexual battery count (Count 4) because the jury could not reach a verdict.

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

       We adopt the term “other acts” to include “crimes, wrongs, or other acts” as set forth in OCGA § 24-4-404 (b). (Citation and punctuation omitted.) State v. Jones, 297 Ga. 156, 158 (1), n. 1 (773 SE2d 170) (2015). Similarly, we adopt the term “extrinsic offense” to refer to the offense under OCGA § 24-4-404 (b) for which the defendant is not charged in the case sub judice. See United States v. Beechum, 582 F2d 898, 903, n. 1 (5th Cir. 1978) (en banc).

       Though Edmonson was acquitted of these three charges, the alleged crimes might still be admissible under OCGA § 24-4-404 (b). See United States v. Felix, 503 U. S. 378, 386 (II) (112 SCt 1377, 118 LE2d 25) (1992) (permitting the use of crimes under Federal Rule 404 (b) which the defendant has been acquitted because “Rule 404 (b) [is] governed by a lower standard of proof than that required for a conviction”) (citations omitted).

       Where Georgia’s new Evidence Code “mirror[s] their federal counterparts,” we ‘look to federal rules and how federal appellate courts have interpreted those rules for guidance” with preference for decisions from the Eleventh Circuit Court of Appeals. Parker v. State, 296 Ga. 586, 592 (3) (a) (769 SE2d 329) (2015).


author: Peterson, Judge.

text:
    A16A0125.
    ROBINSON v. THE STATE.
    (785 SE2d 304)
   Peterson, Judge.

Tony Robinson appeals his convictions for aggravated assault, criminal damage to property in the second degree, and cruelty to children in the third degree. He argues that (1) the guilty verdicts are against the weight of the evidence; (2) improper jury conduct should have resulted in a mistrial and shows that the verdict “is inherently lacking in due process”; and (3) the trial court erred in admitting evidence of his prior convictions. We find that the evidence was sufficient to authorize the guilty verdicts, Robinson waived his arguments as to juror misconduct, and the trial court did not abuse its discretion in admitting evidence of Robinson’s prior convictions. Therefore, we affirm Robinson’s convictions.

1. Robinson argues that the guilty verdicts were against the weight of the evidence, which we will construe as an argument that the evidence was insufficient to support his convictions. When appellate courts review the sufficiency of the evidence, they do not “reweigh the evidence or resolve conflicts in witness testimony” but instead defer “to the jury’s assessment of the weight and credibility of the evidence.” Greeson v. State, 287 Ga. 764, 765 (700 SE2d 344) (2010) (citation omitted); see also Allen v. State, 296 Ga. 738, 741 (2) (770 SE2d 625) (2015) (whether to grant a new trial on grounds the verdict is against the weight of the evidence is matter solely for trial court’s discretion; appellate courts may review only for sufficiency). We determine 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 (99 S. Ct. 2781, 61 LE2d 560) (1979) (citation omitted) (emphasis in original).

So viewed, the evidence shows that Robinson was in a relationship with the victim and had been living in her apartment for several months. During the course of their relationship, Robinson was physically violent toward the victim. The victim called police in June 2013 following one particular violent incident. Prior to the trial over that incident, Robinson asked the victim to testify that her injuries were self-inflicted, but the victim failed to appear in court rather than testify to that effect.

Subsequently, on October 5, 2013, Robinson and the victim argued over his use of a cell phone — for which the victim was paying — to have frequent phone conversations with his ex-girlfriend. Robinson followed the victim into her bedroom, stating, “I told you I was going to kill you.” Robinson grabbed the victim by her arms as she tried to move across the bed, positioning himself on top of her. After he let her go, the victim announced that she was leaving the home, but Robinson grabbed her keys and cell phone. Eventually she persuaded him to allow her to leave by inviting him to go to Wal-Mart with her and her son.

Along with her son, the victim managed to get to the car in time to lock Robinson out of it. As the victim began to back out of her parking space, Robinson tried to open the car’s doors, and then ran back to the apartment. The victim pulled back into her parking spot and yelled out of the window, “I’m calling the police on you, you stupid bitch.” Robinson picked up a concrete slab that was near the apartment door and approached the front of the victim’s car. He swung it multiple times at the victim’s car; it ultimately came through the window and injured the victim in the head, with a piece of concrete ending up in hér lap. The victim’s son screamed in the back seat. The victim drove to a library, where she called police. The victim was hospitalized for five days due to her injuries, including a skull fracture and hearing loss. To completely repair the victim’s car would have cost about $1,600.

An officer who responded to the 911 call found the victim sitting in her car at the library, her head bleeding profusely. A concrete slab was in between the victim’s legs, and her driver’s side window was shattered. The officer later went to the apartment complex parking lot, where police found two other pieces of broken concrete, as well as broken car parts. A friend of the victim testified that Robinson called her and said, “I’ll find [the victim] before they find me”; the friend testified over objection that she interpreted that as a “threat.”

Robinson testified in his own defense at trial. He admitted throwing the concrete slab at the victim’s car, but said the victim was trying to run him over at the time. He said he “ran for [his] life” and felt his life was in danger. The victim and her son both denied that the victim’s car hit Robinson.

Robinson argues that the guilty verdicts were a product of the introduction of his prior criminal history and the testimony that Robinson had threatened the victim when he told her friend, “I’ll find [the victim] before they find me.” However, as explained in Division 3, his prior convictions were properly admitted. As for Robinson’s argument about the friend’s testimony that he threatened the victim — which he does not support with any legal authority — our review of the evidence shows that any error in admitting that statement was harmless given the weight of the evidence against Robinson.

Robinson’s position at trial was that his need to defend himself justified throwing a concrete slab at his girlfriend’s car. “Once [Robinson] raised the affirmative defense of justification and testified to the same, the State then bore the burden of disproving that defense beyond a reasonable doubt.” Agyemang v. State, 334 Ga. App. 137, 138-39 (1) (778 SE2d 387) (2015). Robinson argues on appeal that his testimony (and, to some extent, the testimony of the victim’s minor child) contradicted the victim’s testimony, showing that Robinson was acting in self-defense. But it is for the jury, not this Court, to assess the credibility of the witnesses and resolve conflicts in their testimony. See Greeson, 287 Ga. at 765. Robinson also complains that the responding officer testified that he could not say exactly how the victim’s car was positioned when it lost its driver’s side mirror. To the extent that Robinson suggests that the positioning of the victim’s car showed that she was the aggressor during the incident in the parking lot, the victim refuted that suggestion through her testimony, and “[t]he testimony of a single witness is generally sufficient to establish a fact[.]” OCGA § 24-14-8.

Robinson suggests that the victim’s testimony itself showed that she was the aggressor. He points to her testimony that he was at the back of her car, trying to get in, when she “started trying to put the car in reverse.” However, the victim went on to testify that Robinson ran back to her home before picking up a concrete slab and charging toward her car. She and her son also testified that her car did not hit Robinson. Robinson argues that the victim’s admitted decision to return briefly to her parking spot and yell that she was calling the police showed that she did not fear Robinson causing her any harm. But even assuming this is true, fear on the victim’s part is not a necessary element of the crimes of which Robinson was convicted. See, e.g., OCGA § 16-5-20(a) (“Aperson commits the offense of simple assault when he or she either: (1) [a]ttempts to commit a violent injury to the person of another; or (2) [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.”) (emphasis added); OCGA § 16-5-21(b)(2) (“A person commits the offense of aggravated assault when he or she assaults... [wjith 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 injury[.]”).

This case presented an issue of credibility, which was for a jury to decide. The jury, by its verdict, indicated that it credited the evidence contrary to Robinson’s justification defense. See Agyemang, 334 Ga. App. at 139. Our review of the evidence persuades us that it was sufficient to reject Robinson’s theory of self-defense.

2. Robinson argues that he was prejudiced by improper jury conduct that should have resulted in a mistrial and shows the verdict is “lacking in due process.” His argument is based on two incidents, the first while the State was still presenting its case and the second during deliberations.

Where a defendant fails to move for a mistrial, he waives any appellate argument that the trial court erred by not granting one. See Little v. State, 332 Ga. App. 553, 555 (2) (774 SE2d 132) (2015). An argument that a juror should have been removed from a jury also is waived when counsel fails to request a juror be struck for cause. See Ware v. State, 321 Ga. App. 640, 642 (2) (742 SE2d 156) (2013). In this case, defense counsel indicated he had no objection to the trial court’s decisions, in one instance, to discharge a juror and utilize an alternate and, in the other instance, to allow the juror in question to continue deliberations with the panel. By consenting to the trial court’s handling of these juror issues, Robinson has waived any argument that the trial court erred in that respect, including by leaving a juror on the panel or failing to grant a mistrial.

3. Finally, Robinson argues that the trial court erred by admitting evidence of his previous convictions. Robinson was paroled in 2006 on convictions for armed robbery and voluntary manslaughter. He was convicted of aggravated stalking and terroristic threats in 2012. The trial court admitted evidence of the guilty convictions for general impeachment purposes, over a defense objection. We conclude the trial court did not abuse its discretion.

Subject to the time limits of OCGA § 24-6-609(b), OCGA § 24-6-609(a)(l) provides that evidence that an accused who testifies has been convicted of a crime punishable by death or imprisonment in excess of one year “shall be admitted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the accused.”

The introduction of evidence of a prior felony conviction is intended to afford the jury a basis to infer that the witness’s character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony.
The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness.

Smith v. State, 331 Ga. App. 296, 299 (2) (771 SE2d 8) (2015) (citation and punctuation omitted). A trial court’s decision to admit, a defendant’s prior conviction under OCGA § 24-6-609(a)(l) is reviewed for an abuse of discretion. Id. at 300 (2).

OCGA § 24-6-609(b) provides that a conviction shall not be admissible if more than ten years have passed since the conviction or the release of the witness from confinement, whichever is later, “unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” Robinson was not paroled on the armed robbery and voluntary manslaughter convictions until 2006, less than ten years before the 2014 trial. Accordingly, the more stringent “substantially outweighs” standard does not apply even as to those convictions. See United States v. $ 21, 175.00 in U.S. Funds, 521 Fed. App’x 734, 741 (11th Cir. 2013); Smith, 331 Ga. App. at 299 (2) n.9. This approach differs from the prior OCGA § 24-9-84.1(a), under which, except for convictions involving dishonesty or false statements, even recent felony convictions could be used to impeach a defendant only if the probative value “substantially outweigh[ed]” the prejudicial effect.

Under the prior Code section, Georgia trial courts undertaking that balancing were to consider factors such as (1) the kind of felony involved and its impeachment value, (2) the time of the conviction and the defendant’s subsequent history, (3) the similarity between the past crime and the charged crime (lest evidence of a similar crime create an unacceptable risk of prejudice); (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue. See Waye v. State, 326 Ga. App. 202, 205-06 (3) (756 SE2d 287) (2014); see also Quiroz v. State, 291 Ga. App. 423, 428 (4) (662 SE2d 235) (2008). This court has raised questions about the continued applicability of these factors to the new Evidence Code’s provision for instances when not more than ten years have passed since the conviction or the release of the witness from confinement. See Smith, 331 Ga. App. at 300 (2). However, the federal courts have employed these factors under a prior version of the federal evidence rule that is substantively similar to our new evidentiary rule. See United States v. Preston, 608 F.2d 626, 639 n.17 (5th Cir. 1979). They remain a useful guide.

The trial court considered those factors here. The trial court correctly noted the centrality of the credibility dispute between Robinson and the victim. The trial court pointed out that the defendant had received multiple convictions after his 2006 parole, including one in 2007. The trial court acknowledged that the prior convictions did not involve crimes of dishonesty, saying that “cuts against the State a little bit,” but rightly pointed out that, as the statute is structured, crimes of dishonesty are considered under a different standard. The trial court considered the similarity between the prior convictions and the pending charges against Robinson, including that on their face the 2012 convictions sounded as though they involved “some sort of domestic situation,” deciding that was not enough of a similarity to prevent their use for impeachment purposes. Even under the prior, more stringent standard, this Court has found that it is not an abuse of discretion to allow a defendant charged with violent crimes to be impeached with convictions for violent offenses. See Jones v. State, 318 Ga. App. 105,107-08 (3) (733 SE2d407) (2012) (no abuse of discretion in admitting prior aggravated assault conviction at trial for murder and aggravated assault — charges on which defendant was acquitted — and firearms offenses); Newsome v. State, 289 Ga. App. 590, 592-94 (2) (657 SE2d 540) (2008) (no abuse of discretion to admit prior convictions for aggravated assault and possession of a firearm during the commission of a felony at trial for aggravated assault, aggravated stalking, cruelty to a child, and possession of a firearm during the commission of a felony). We find no abuse of discretion in the trial court’s thoughtful and considered analysis.

Robinson also argues that the prior convictions were improperly admitted because the State was allowed to offer certified copies of them into evidence even after he acknowledged them on the stand. He relies on Ross v. State, 279 Ga. 365, 366-68 (2) (614 SE2d 31) (2005), in which our Supreme Court held that it was error to reject a defendant’s offer to stipulate to his status as a convicted felon when the State’s purpose for admitting the defendant’s prior conviction into evidence was to satisfy the elements of the charge of possession of a weapon by a convicted felon. The high court therein set forth the following limited exception to the general rule that a defendant cannot stipulate to facts and thereby obviate the need for proof over the State’s objection:

Decided April 5, 2016.

Tucker & Associates, Matthew A. Tucker, Jay T. Winkler, for appellant.

Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

[Wjhen (1) a defendant’s prior conviction is of the nature likely to inflame the passions of the jury and raise the risk of a conviction based on improper considerations, and (2) the purpose of the evidence is solely to prove the defendant’s status as a convicted felon, then it is an abuse of discretion for the trial court to spurn the defendant’s offer to stipulate to his prior conviction and admit the evidence to the jury.

Id. at 368 (2). However, Robinson’s attempt to apply the Ross exception here is foreclosed by our decision in Jones, which explained that the Ross exception did not apply to evidence used for the proper purpose of impeaching a defendant’s credibility as a witness. Jones, 318 Ga. App. at 108 (4). Therefore, we discern no error in the trial court’s admission of the prior convictions.

Judgment affirmed.

Ellington, R J., and Mercier, J., concur.

       Robinson also appears to complain about the trial court’s failure to give a charge under Allen v. United States, 164 U.S. 492 (17 S. Ct. 154, 41 LE 528) (1896), after the jury indicated that it was “hung.” This argument is not included within any of his enumerations of error, and so we do not address it. See Brouin v. State, 315 Ga. App. 115, 119 (2) (c) n.18 (726 SE2d 612) (2012).

       Although the trial transcript and the parties’ briefs indicate these convictions were entered in 1986, court filings from the related proceedings indicate the convictions were entered in 1987. The apparent discrepancy does not change our analysis.

       Because the trial of this case took place in 2014, Georgia’s new Evidence Code applies. See Ga. L. 2011, pp. 99, 214, § 101.

       Given the new Evidence Code’s similarity with the federal rules, Georgia courts look to federal case law in interpreting it, with any conflicts among the circuits to he resolved by following the U.S. Court of Appeals for the Eleventh Circuit. See State v. Jones, 297 Ga. 156, 158 (1) (773 SE2d 170) (2015).


author: MCFADDEN, Judge.

text:
    A16A0758.
    HILL-BLOUNT v. THE STATE.
    (785 SE2d 309)
   MCFADDEN, Judge.

A jury found Corey Hill-Blount guilty of armed robbery and possession of a firearm during the commission of a crime, and the trial court entered his judgment of conviction on July 28, 2008. Thirty-seven days later, on September 3, 2008, Hill-Blount filed a motion for a new trial, which the trial court denied on February 3, 2015. Hill-Blount filed a notice of appeal on February 6, 2015. Because the motion for new trial was untimely, we lack jurisdiction and, accordingly, must dismiss the appeal.

1. Years-long delay in transmission of the record.

As an initial matter, we note that Hill-Blount’s motion for a new trial was denied six years and five months after it was filed. The record contains no explanation for this delay. As discussed in Division 2, infra, Hill-Blount may be entitled to pursue an out-of-time appeal. Resolution of that issue will delay any possible consideration of the merits of this case by this court for approximately another year. We therefore again remind the bench and bar that

this sort of extraordinary post-conviction, pre-appeal delay puts at risk the rights of defendants and crime victims and the validity of convictions obtained after a full trial. It is the duty of all those involved in the criminal justice system, including trial courts and prosecutors as well as defense counsel and defendants, to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay. That duty unfortunately was not fulfilled in this case.

Robinson v. State, 334 Ga. App. 646, 647 (1) (780 SE2d 86) (2015) (punctuation omitted); see also Shank v. State, 290 Ga. 844, 849 (5) (c) (725 SE2d 246) (2012); Morgan v. State, 290 Ga. 788, 788-789, nn. 1, 2 (725 SE2d 255) (2012); Hill v. State, 290 Ga. 493, 493, n. * (722 SE2d 708) (2012); Murphy v. State, 290 Ga. 459, 459, nn. 1, 2 (722 SE2d 51) (2012); Waye v. State, 326 Ga. App. 202, 202-203 (1) (756 SE2d 287) (2014).

2. Appellate jurisdiction.

The proper and timely filing of the notice of appeal is an absolute requirement to confer appellate jurisdiction upon this court. Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). A notice of appeal must be filed within 30 days of the entry of an appealable judgment. OCGA § 5-6-38 (a). Although the filing of a motion for a new trial generally extends the deadline for filing a notice of appeal, see OCGA § 5-6-38 (a), an untimely motion for a new trial is void and does not extend the time for filing an appeal, Wicks v. State, 277 Ga. 121, 121-122 (587 SE2d 21) (2003). To be timely, a motion for a new trial must be made “within 30 days of the entry of the judgment on the verdict.” OCGA § 5-5-40 (a). A defendant may obtain permission from the trial court to file an out-of-time motion for a new trial, the denial of which maybe appealed directly. See Washington v. State, 276 Ga. 655, 656 (1) (581 SE2d 518) (2003). Here, however, the record does not show that Hill-Blount sought permission to file an out-of-time motion.

Decided April 5, 2016.

Motion for new trial. Richmond Superior Court. Before Judge Annis.

Peter D. Johnson, for appellant.

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

Because Hill-Blount’s motion for a new trial was filed 37 days after entry of his judgment of conviction, it was untimely and did not extend the time for filing the notice of appeal. See Wicks, supra at 121-122. Under these circumstances, Hill-Blount’s appeal is untimely and therefore must be dismissed for lack of jurisdiction. See Peters v. State, 237 Ga. App. 625, 625 (516 SE2d 331) (1999).

3. Notice to appellant of his right to petition for leave to file an out-of-time appeal.

Because Hill-Blount is represented by counsel, he is informed of the following in accordance with Rowland v. State, supra at 875-876: This appeal has been dismissed because you failed to file a timely notice of appeal from your judgment of conviction. If you still wish to appeal, you may petition the trial court for leave to file an out-of-time appeal. If the trial court grants your request, you will have 30 days from the entry of that order to file a notice of appeal referencing your conviction. If the trial court denies your request, you will have 30 days from the entry of that order to file a notice of appeal referencing the denial of your request for an out-of-time appeal.

The Clerk of Court is directed to send a copy of this order to Hill-Blount and to his attorney, and the latter also is directed to send a copy to Hill-Blount.

Appeal dismissed.

Miller, P. J., and McMillian, J., concur.


author: MERCIER, Judge.

text:
    A15A1819.
    ENVISION PRINTING, LLC v. EVANS.
    (786 SE2d 250)
   MERCIER, Judge.

Envision Printing, LLC sued Bernie Evans, alleging that he defaulted on a promissory note. Evans moved for summary judgment, asserting that he was not personally responsible for the debt because he had signed the promissory note solely in his capacity as an officer of a limited liability company. The trial court granted Evans’s motion for summary judgment, and Envision Printing appeals. Finding no merit in Envision Printing’s contentions, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Carter v. Moody, 236 Ga. App. 262, 263 (511 SE2d 520) (1999) (citation and punctuation omitted).

So viewed, the record shows that Evans was the CEO of Red Rhino Market Group, LLC (“Red Rhino”), that Red Rhino was a customer of Envision Printing, and that Red Rhino was in arrears on its account with Envision Printing. On December 6, 2013, Evans executed a promissory note (hereafter, the “note”) in favor of Envision Printing. In pertinent part, the note states:

FOR VALUE RECEIVED, the undersigned (hereinafter referred to as “Maker”) promises to pay to the order of Envision Printing, LLC, . . .

The terms of the note are set out thereafter, and this signature block follows:

WITNESS MY HAND AND SEAL.
Red Rhino Market Group, LLC
_(SEAL)
Witness By: Jeff Neiswanger, as manager
_(SEAL)
Witness Jeff Neiswanger
/si_ Is/_(SEAL)
Witness Bernie Evans

The signatures of Evans and one witness appear on the two lines indicated; the words “By: Jeff Neiswanger, as manager (SEAL),” and “Jeff Neiswanger (SEAL)” are crossed out. There are no other signatures on the note.

In moving for summary judgment, Evans pointed to the following evidence: the note contained no language indicating that Evans would be personally responsible for the debt; the note used the singular term “Maker” throughout, and the signature box was titled “Red Rhino Market Group, LLC,” under which were spaces for several signatures; the only address listed in the note as the Maker’s address was Red Rhino’s corporate address; Evans averred in an affidavit that he had signed the note solely in his capacity as CEO of Red Rhino; prior to signing the note, a Red Rhino employee sent an e-mail to Envision Printing stating that “Bernie have [sic] full authorization under the LLC documents to sign for Red Rhino Market Group” (emphasis supplied); an Envision Printing employee replied to that e-mail, also by e-mail, instructing the Red Rhino employee to “have Bernie sign it,” and did not object to the “to sign for Red Rhino” statement; Envision Printing sent the note to Red Rhino’s e-mail address for signatures; and a Red Rhino employee witnessed Evans’s signing of the note.

In its response, Envision Printing argued that Evans was personally responsible for the debt. Envision Printing pointed to, among other things, the affidavit of its (Envision Printing’s) president wherein the latter averred that Evans had “signed the Note personally[, and] Envision accepted the Note as a personal obligation of Bernie Evans and continued to do business with Red Rhino after receiving the Note.” Envision Printing also asserted that Evans had signed the note without indicating thereon that he was doing so in a representative capacity.

In its order granting summary judgment to Evans, the trial court found that Evans had signed the promissory note solely in his representative capacity and was not personally liable. The court further found that Envision Printing knew that Evans had not signed in his personal capacity, and that Evans was entitled to an award of attorney fees pursuant to OCGA § 9-15-14 (in an amount to be later determined); the court directed the parties to submit an affidavit and response in connection with Evans’s attorney fee request.

1. Envision Printing contends that the trial court erred by granting summary judgment to Evans when, pursuant to OCGA § 11-3-402 (b) (2), he was personally liable under the note. We disagree.

Generally, a corporation’s officers and the corporation are entirely separate and distinct entities. Contracts maybe signed by one acting in a representative capacity, or a representative may make himself liable for the debt of the corporation; this Court examines the language of the contract to determine in what capacity the representative is bound.

Grot v. Capital One Bank (USA), 317 Ga. App. 786, 794 (6) (732 SE2d 305) (2012); see American Arbitration Assn. v. Bowen, 322 Ga. App. 51, 53 (743 SE2d 612) (2013) (like a corporation, a limited liability company is a business entity that protects its members from personal liability for business debts; members may incur personal liability for an LLC’s business debts if they execute a written agreement to personally guarantee the company’s debts and liabilities).

The construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, no construction is required, and the court simply enforces the contract according to its clear terms. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury. The existence or nonexistence of an ambiguity is a question of law for the court. If the court determines that an ambiguity exists, however, a jury question does not automatically arise, but rather the court must first attempt to resolve the ambiguity by applying the rules of construction in OCGA § 13-2-2.

General Steel v. Delta Bldg. Systems, 297 Ga. App. 136, 138 (1) (676 SE2d 451) (2009).

“The cardinal rule of [contract] construction is to ascertain the intention of the parties.” Empire Distributors v. George L. Smith II Ga. World Congress Center Auth., 235 Ga. App. 742, 744 (509 SE2d 650) (1998) (citation and punctuation omitted); OCGA § 13-2-3. We note that “[c]ontract disputes are particularly well suited for adjudication by summary judgment.” Elwell v. Keefe, 312 Ga. App. 393, 394-395 (718 SE2d 587) (2011) (footnote omitted). In this case, looking at the whole contract, we conclude that there is ambiguity as to the capacity in which Evans signed, but, as discussed below, that ambiguity can be resolved by applying the rules of contract construction.

OCGA § 11-3-402 (b) prescribes the conditions under which an authorized representative’s signature on a note may make the representative personally liable for the obligation. Marek Interior Systems v. White, 230 Ga. App. 518, 519 (1) (496 SE2d 749) (1998). That statute provides, in pertinent part:

(2) . . . [I]f the form of the signature does not show unambiguously that the signature is made in a representative capacity or the represented person is not identified in the instrument, the representative is liable on the instrument to a holder in due course that took the instrument without notice that the representative was not intended to be liable on the instrument. With respect to any other person, the representative is liable on the instrument unless the representative proves that the original parties did not intend the representative to be liable on the instrument.

OCGA § 11-3-402 (b) (2).

In this case, the form of Evans’s signature does not show unambiguously that he signed the instrument in a representative capacity. See OCGA § 11-3-402 (b) (2). At the same time, the represented person (Red Rhino Market Group, LLC) is clearly identified in the instrument. Id. Thus, under OCGA § 11-3-402 (b) (2), Evans is liable if Envision Printing took the note “without notice that [he] was not intended to be liable on the instrument.” We conclude that Envision Printing had notice that Evans was not intended to be personally liable on the note.

In interpreting a contract, we are required to look at the whole contract and give the contract a reasonable construction. See OCGA § 13-2-2; McLendon v. Priest, 259 Ga. 59, 60 (376 SE2d 679) (1989). The note in this case does not expressly or unequivocally state that Evans was personally guaranteeing the obligation of Red Rhino (an LLC) or that, by signing, he was waiving all defenses to the note’s enforcement. See Elwell, supra at 396. And, other than his name being listed in the signature box below “Red Rhino Market Group, LLC” and Jeff Neiswanger’s name, nothing in the note identifies or pertains to Evans personally. Further, Envision Printing has pointed to a separate document (titled “Credit Application”) that Red Rhino’s manager (Neiswanger) executed, wherein Neiswanger expressly agreed to personally guarantee payment of Red Rhino’s indebtedness to Envision Printing. But Evans signed no such document. Finally, “[u]nder the statutory rules of contract construction, if a contract is capable of being construed two ways, it will be construed against the preparer and in favor of the non-preparer. OCGA § 13-2-2 (5).” Hertz Equip. Rental Corp. v. Evans, 260 Ga. 532, 533 (397 SE2d 692) (1990). Envision Printing prepared the promissory note. The trial court did not err in construing the contractual ambiguity against Envision Printing. See id.

2. Envision Printing contends that the trial court erred by considering parol evidence. However, in interpreting contracts, “[a]ll the attendant and surrounding circumstances may be proved and, if there is an ambiguity, latent or patent, it may be explained!)]” OCGA § 13-2-2 (1). See Marek Interior Systems v. White, 230 Ga. App. 518, 520-521 (2) (496 SE2d 749) (1998) (“parol evidence is admissible if there is an ambiguity on the face of the instrument on the issue of representative capacity” (punctuation omitted)); Empire Distributors, supra at 744 (parol evidence is admissible to explain an ambiguity in a written contract); Dundon v. Forehand, 152 Ga. App. 749, 750 (1) (a) (263 SE2d 687) (1979) (parol evidence is admissible to explain the capacity in which one signed an agreement in which the language is ambiguous). Envision Printing’s reliance on Attkisson v. Cavanagh, 201 Ga. App. 633 (411 SE2d 786) (1991), is misplaced because that case was decided pursuant to former versions of OCGA §§ 11-3-402 and 11-3-403; those statutes underwent substantive changes in 1996, such that a different analysis now applies. See Attkisson, supra; Marek Interior Systems, supra. We also note that the instrument in Attkisson, when viewed as a whole, may not have presented an ambiguity; the opinion in that case does not include such details. Id. The trial court did not err by considering parol evidence in the instant case.

Decided March 10, 2016 —

Reconsideration dismissed April 6, 2016.

William W. White, for appellant.

3. Envision Printing contends that the court erred because if the note was ambiguous, such ambiguity presented a question of fact for the jury. This contention is without merit. Construction of ambiguous contracts is the duty of the court, and no jury question is raised unless after application of pertinent rules of construction ambiguity remains. Archer v. Carson, 213 Ga. App. 161, 163 (1) (444 SE2d 82) (1994). “[W]here the contract is ambiguous in its terms, then the trial court must apply the rules of construction to determine the intent of the parties as a matter of law prior to any jury determination.” In re Estate of Sims, 259 Ga. App. 786, 788 (1) (578 SE2d 498) (2003) (citations omitted); see generally OCGA § 13-2-2 (“The construction of a contract is a question of law for the court.”). In this case, the trial court was authorized to resolve the ambiguity. See generally Archer, supra.

4. Envision Printing contends that “the trial court erred in directing the parties to submit affidavits on attorney’s fees because the underlying judgment is in error”; Envision Printing asserts no other basis for reversal in connection with the attorney fee ruling. As we explained in Divisions 1 through 3, supra, the trial court did not err by entering judgment in Evans’s favor. Therefore, this contention is without merit.

Judgment affirmed.

Andrews, P. J., and Miller, P. J., concur.

Gumprecht Law Firm, Michael E. Gumprecht, for appellee.


author: ELLINGTON, Presiding Judge. MCFADDEN, Judge,

text:
    A15A2148.
    WILEY v. THE STATE.
    (782 SE2d 850)
   ELLINGTON, Presiding Judge.

A Banks County jury found Crystal Wiley guilty of four counts of aggravated child molestation, OCGA § 16-6-4 (c); four counts of child molestation, OCGA § 16-6-4 (a) (1); and four counts of sexual battery, OCGA § 16-6-22.1 (b). Wiley appeals following the trial court’s denial of her motion for new trial. She contends that her trial counsel was ineffective in failing to offer his informed opinion as to whether she should accept or reject the State’s plea offer of fifteen to twenty years, to serve ten in prison.

The evidence, viewed in the light most favorable to the jury’s verdict, see Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), showed that the victim’s mother, who was also Wiley’s sister, testified that Wiley told her in 2012 that Wiley had molested the victim beginning when the victim was seven years old. Within hours of Wiley’s disclosure, the mother spoke to the victim, then 11 years old, and she confirmed that Wiley had molested her. The victim testified to multiple acts of sodomy and molestation committed against her by Wiley.

The trial court sentenced Wiley to life imprisonment, to serve twenty-five years on each count of aggravated child molestation, ten years to serve on each count of child molestation, and twelve months to serve on each count of sexual battery, with all sentences to run concurrently. Wiley moved for a new trial and argued that, among other things, her trial counsel was ineffective in failing to offer an informed opinion of what plea she should enter.

The evidence presented at the hearing on Wiley’s motion for new trial showed that the prosecutor made a plea offer pursuant to which Wiley would plead guilty to child molestation and be sentenced to either fifteen or twenty years, to serve ten in prison. Within a week of trial, counsel met with Wiley and her parents for several hours. Counsel testified that the discussions regarding the plea offer lasted more than an hour, which included periods when he left the room so that Wiley could discuss the offer with her parents. According to counsel, he advised Wiley that if she accepted the plea she would serve between 70 to 90 percent of the “j ail time,” but if she went to trial and was found guilty she would serve “a straight 25 years” without any probation or parole. During the meeting, counsel advised that the weaknesses of the defense’s case included that the victim claimed that Wiley had committed the offenses and that counsel had been unable to speak to the victim so as to evaluate her as a witness. Counsel also advised Wiley that the strength of the defense’s case was the period of time between the alleged crimes and the victim’s outcry, as well as the forensic interview of the victim, which counsel assessed as “not looking to ... get objective answers ... but to solicit support” for the outcry. Counsel did not advise Wiley as to his opinion of the likelihood that she would be convicted, nor did he offer an opinion as to whether Wiley should accept or reject the plea.

Wiley testified at the hearing on motion for new trial that the discussion with her counsel regarding the plea offer lasted between one and two hours. To her recollection, the State’s plea offer was fifteen years, “do nine.” She recalled that counsel advised her of the strengths and weaknesses of the case, and then “left [her] and [her] family to make a decision.” She acknowledged that counsel had informed her that if she were convicted of aggravated child molestation that the sentence would be 25 years to life.

When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below the objective standard of reasonableness, — that is, reasonable considering all the circumstances. And, that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

(Citations and punctuation omitted.) Lloyd v. State, 258 Ga. 645, 647 (2) (373 SE2d 1) (1988). See Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). “In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citations and punctuation omitted.) Hughes v. State, 289 Ga. 98, 100 (3) (709 SE2d 764) (2011).

Whether to plead guilty is a decision belonging to the accused, not his or her attorney. Cammer v. Walker, 290 Ga. 251, 254 (1) (719 SE2d 437) (2011). Although the accused must make the decision whether to accept a proposed plea agreement, “the accused should have the full and careful advice of counsel.” (Citations and punctuation omitted.) Id. at 255 (2). Thus, before trial, the “accused is entitled to rely upon his [or her] counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his [or her] informed opinion as to what plea should be entered.” (Citation and punctuation omitted.) Id. See Johnson v. State, 289 Ga. 532, 534 (712 SE2d 811) (2011) (accord); Cleveland v. State, 285 Ga. 142, 144 (674 SE2d 289) (2009) (accord).

Wiley contends that her trial counsel was deficient in failing to give his “professional input” as to whether she should accept or reject the State’s plea offer. The evidence shows without dispute that trial counsel did not offer his opinion as to whether Wiley should, or should not, accept the plea deal. However, counsel advised Wiley of the State’s plea offer, made her aware of the sentences she faced if she pleaded guilty or was convicted following a trial, and discussed the evidence against her, including his professional assessment of the strengths and weaknesses of the evidence. Wiley does not identify, and we are unaware of, authority requiring that in every instance defense counsel, in the exercise of objectively reasonable assistance, must advise the accused either to accept or reject a plea offer. An inquiry into the reasonableness of counsel’s performance must be made “considering all the circumstances.” Strickland v. Washington, 466 U. S. at 688 (III) (A). And the Supreme Court of Georgia has said that

[a]n attorney ordinarily may satisfy the duty to provide informed legal advice regarding a plea offer by discussing with the accused the risks of going to trial, the evidence against him or her, and differences in possible sentences that would be imposed following a guilty plea and following a conviction at trial.

(Citations omitted.) Cammer v. Walker, 290 Ga. at 255 (2). See Johnson v. State, 322 Ga. App. 612, 619 (4) (744 SE2d 903) (2013) (accord). Here, Wiley’s counsel provided her with such advice.

Wiley maintains that her counsel should have done more, particularly by offering his opinion as to which plea should be entered, because of the facts of the case, because she had been diagnosed as paranoid schizophrenic, and because she was facing a penalty of at least 25 years to serve in prison, without probation or parole, if she proceeded to trial and was convicted. Trial counsel could have reasonably concluded, however, that the evidence against Wiley was not overwhelming and there were circumstances, particularly the delay in the victim’s outcry, which were favorable to the defense. Neither of the choices confronting Wiley, to either accept the plea offer or to proceed to trial, was shown to be unreasonable in light of the facts of the case against her, and we cannot conclude that trial counsel acted unprofessionally in failing to expressly advise Wiley to choose one over the other. Trial counsel was also aware that Wiley had been diagnosed with paranoid schizophrenia, he reviewed her medical records, and he knew that she had been receiving outpatient care and medication. Wiley does not show that her trial counsel made any unprofessional decisions in light of her medical diagnosis. And, insofar as the severity of the sentence she faced if she was convicted following a trial, Wiley was advised by counsel of this risk. According to trial counsel, Wiley gave the State’s plea offer “serious consideration.” The evidence supports the trial court’s findings that Wiley was “fully informed of what she was facing” and “had full awareness of her alternatives,” and that, under the circumstances, counsel’s performance did not fall below the objective standard of reasonableness. The trial court did not err in rejecting Wiley’s claim of ineffective assistance of counsel.

Judgment affirmed.

Mercier, J., concurs. McFadden, J., concurs specially.

MCFADDEN, Judge,

concurring specially.

I agree that Crystal Wiley has not shown that she received ineffective assistance of counsel, but I would decide the appeal on her failure to show prejudice instead of reaching the issue of whether trial counsel’s performance was deficient. See Hendrix v. State, 298 Ga. 60, 61-62 (2) (779 SE2d 322) (2015) (where defendant fails to satisfy either the “deficient performance” or the “prejudice” prong of the test for ineffective assistance set forth in Strickland v. Washington, 466 U. S. 668, 695 (104 SCt 2052, 80 LE2d 674) (1984), the reviewing court need not examine the other prong).

This appeal arises from Wiley’s regret at having turned down a plea offer. She argues that she received ineffective assistance of counsel because her trial counsel “fail[ed] to give his professional input as to the acceptance or rejection of the proposed plea.” The majority rejects that argument, and the record supports a finding that trial counsel exhibited a high level of diligence in assisting with what appears to have been an agonizing decision, given that the plea offer reflected a substantial possibility of acquittal. But the record also undisputedly reflects that trial counsel did not offer Wiley his bottom-line opinion as to whether or not she should accept the plea offer.

The majority holds that trial counsel’s decision not to offer a bottom-line opinion was a reasonable exercise of his professional judgment, and I find that analysis persuasive. But I do not concur in the analysis because it does not address one of Wiley’s primary arguments — the implications of the following language from our Supreme Court’s decision in Cleveland v. State, 285 Ga. 142 (674 SE2d 289) (2009):

The Supreme Court [of the United States] held over sixty years ago that “(p)rior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.”

Id. at 144 (emphasis supplied), citing Von Moltke v. Gillies, 332 U. S. 708, 721 (68 SCt 316, 92 LE 309) (1948) (plurality opinion). (In her brief Wiley improperly attributes this language to Lloyd v. State, 258 Ga. 645 (373 SE2d 1) (1988), a decision that does not contain the language but that is discussed by our Supreme Court in Cleveland, supra.)

Although it seems unlikely that either the Supreme Court of the United States or our Supreme Court intended the result for which Wiley advocates here, the language those courts used does, at least at first blush, suggest that trial counsel must give a bottom-line opinion in advising a defendant on a plea deal. Nevertheless, Wiley has pointed to no authority applying the above language in such a manner, and I am aware of none.

Under these circumstances, I believe the better approach is to assume without deciding that Wiley has shown deficient performance and to instead resolve this case on the prejudice prong. Where, as here,

the defendant’s complaint is that [she] went to trial instead of pleading guilty because of counsel’s deficient representation . . . the proper question ... is whether [she] demonstrated that, but for counsel’s deficient performance, there is a reasonable probability that [she] would have accepted the [s]tate’s plea offer.

Cleveland, supra, 285 Ga. at 145 (citations omitted). Wiley offered no evidence whatsoever that there was a reasonable probability that she would have accepted the plea offer had her trial counsel given his bottom-line opinion about whether or not to accept it. Wiley did testify at the hearing on her motion for new trial that there was a reasonable probability she would have accepted the plea offer had her trial counsel specifically opined that certain evidence might be excluded, that her motion to dismiss certain charges might not be successful, or that there was a significant chance she might be convicted. She also testified that, had her trial counsel “spent more time with [her] discussing the different aspects of the plea and the evidence and the law” that there was a reasonable probability she would have accepted the offer. Her testimony, however, did not speak to the issue of her trial counsel’s failure to give a bottom-line opinion on whether or not she should plead. Moreover, the trial court expressly found these post-trial assertions not to be credible, and Wiley’s credibility on this point was a matter for the trial court to decide. See id. at 147.

Accordingly, the record supports the trial court’s finding that Wiley failed to demonstrate the prejudice required for her claim of ineffective assistance of trial counsel, and for that reason I concur in affirming the trial court’s judgment.

Decided February 24, 2016 —

Reconsideration denied April 7, 2016.

George H. Law III, for appellant.

J. Bradley Smith, District Attorney, Samuel E. Skelton, Assistant District Attorney, for appellee.

       Counsel could not recall if the offer was for fifteen years or twenty years, hut he testified that it was a “matter of serving ten.”

       As expressed by the United States Court of Appeals for the Second Circuit, in the context of plea offers, “[cjounsel’s conclusion as to how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a wide range of reasonableness because representation is an art, and there are countless ways to provide effective assistance in any given case.” (Citations and punctuation omitted.) Purdy v. United States, 208 F3d 41, 45 (2nd Cir. 2000).

         At the hearing on the motion for new trial, Wiley testified as to the medication she was taking when she conferred with counsel regarding the plea offer, and, upon questioning by the trial court, acknowledged that the medication was a mood stabilizer that did not cause negative side effects.

       See Johnson v. State, 276 Ga. 57, 60 (4) (a) (573 SE2d 362) (2002) (Trial counsel’s testimony that he had discussed with appellant matters such as the risks of going to trial, the evidence against him, and the possible punishment, was sufficient for the trial court to conclude that appellant had not shown that his trial counsel was deficient in his duty to provide informed legal advice.); Lloyd v. State, 258 Ga. at 648 (2) (a) (A defendant “is entitled to he told that an offer to plead guilty has been made and to he advised of the consequences of the choices confronting him [or her].”); Harris v. State, 330 Ga. App. 165, 167 (767 SE2d 747) (2014) (Evidence showed that appellant’s trial counsel informed him of the State’s plea offer, and that they discussed the risks of going to trial, the evidence against him, and the differences in possible sentences following a guilty plea and following a conviction at trial, and such will ordinarily satisfy the attorney’s duty to provide informed legal advice regarding a plea offer.).

       The trial court also found that Wiley failed to show prejudice in that, even if defense counsel’s performance was deficient, Wiley did not show that there was a reasonable probability that she would have accepted the State’s plea offer if counsel had so advised. See Cleveland v. State, 285 Ga. at 148 (To show prejudice, the defendant was required to carry the “burden of proving a reasonable probability that, but for counsel’s deficient performance, he would have pled guilty.”). However, as Wiley failed to carry her burden to show her counsel’s performance was deficient, we need not consider the issue of prejudice. See State v. Mobley, 296 Ga. 876, 877-878 (770 SE2d 1) (2015) (“[A] court is not required to address both components of the inquiry [into ineffective assistance] if the defendant makes an insufficient showing on one.”) (citation and punctuation omitted).