author: Dillard, Judge.

text:
    A11A1901.
    BOARD OF COMMISSIONERS OF PUTNAM COUNTY v. BAREFOOT.
    (721 SE2d 612)
   Dillard, Judge.

The Board of Commissioners of Putnam County (“the County”) sought summary judgment against Wendy Barefoot’s personal-injury action, alleging that the County was entitled to immunity from suit. The trial court denied the County’s motion for summary judgment, holding that sovereign immunity had been waived by the County’s purchase of liability insurance covering injuries arising from the “use” of a County vehicle. On appeal from this denial, the County alleges that the trial court erred by (1) holding that the use of a motor vehicle “may be remote in time with respect to plaintiffs harm” and still give rise to waiver; (2) applying an overly broad construction to the phrase “use of a motor vehicle”; (3) holding that the use of the vehicle in question was not too incidental to give rise to waiver; and (4) holding that Barefoot presented sufficient evidence to show that her injury was the result of a condition created by the vehicle in question. For the reasons noted infra, we reverse.

Viewed de novo in the light most favorable to Barefoot, the record shows that on December 14, 2007, Barefoot was traveling down Lower Harmony Road in Putnam County when she saw a truck approaching in the other direction. As the truck came closer and the road narrowed, Barefoot realized that it was in her lane and that the vehicles would collide if she did not move.

Barefoot abruptly swerved to miss the oncoming truck but then lost control of her SUV as she felt it simultaneously shake across the road and slide around as if it were on black ice. She lost consciousness soon thereafter when her SUV came to a stop nose-down in a creek beside the road.

Realizing that Barefoot had lost control and crashed, the driver and the passenger of the truck she allegedly swerved to miss called 911 and waited with her until help arrived. As a result of the accident, Barefoot suffered, among other injuries, fractured ribs, a pulmonary contusion, damage to her jaw, and an impact to her skull that required the insertion of metal plates and left numbness in her face.

Thereafter, Barefoot filed suit against the driver of the truck and against the County. Barefoot alleged that she lost control of her vehicle as a result of excessive gravel that had recently been used to repair the roadway, and the responding patrol officer noted in a report that a loss of control and surface debris were contributing factors to the accident. Both the driver and the passenger of the truck also testified that loose gravel was on the road at the time of the accident and that they too had experienced difficulty controlling their vehicle when traveling the same road earlier in the day.

In response to these allegations, the County moved for summary judgment on the basis of sovereign immunity, contending that no County vehicle was in “use” when Barefoot’s accident occurred and that no County employee was involved in same. In reply, Barefoot admitted that no County vehicle was involved in the accident but believed there was a question as to whether a County vehicle was “used” so as to waive sovereign immunity.

In this regard, it is undisputed that on December 13, 2007, the day before Barefoot’s accident, a County employee conducted road maintenance on the road at issue by using a vehicle known as a “pot-patcher.” The employee testified that his job was to repair cracks and holes in the roadway by using his best judgment to fill them with a mixture of tar and gravel. The amount of gravel used would depend on the consistency of the tar, and the employee noted that if, in his assessment, he had put down too much gravel, he would call another County employee to sweep it up. He also testified that even when the appropriate amount of gravel is used, there is no guarantee that it will remain in place because heavy traffic can destroy patchwork—and here, it is undisputed that the road at issue was subject to heavy traffic.

Ultimately, the trial court determined that there was sufficient evidence of the “use” of a County vehicle to find a waiver of sovereign immunity pursuant to OCGA § 33-24-51. This appeal by the County follows.

At the outset, we note that summary judgment is appropriate when “the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” This burden is met by a defendant when “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 [the] plaintiffs case.” And if the moving party meets this burden, “the nonmoving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue.” With these guiding principles in mind, we turn now to the County’s enumerations of error.

1. The County first contends that the trial court erred in holding that the use of the pot-patcher was not too remote in time to waive sovereign immunity. We agree.

First, we note that the doctrine of sovereign immunity “protects governments from legal action unless they have waived their immunity from suit.” And sovereign immunity “can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.”

For example, a county may waive sovereign immunity, pursuant to OCGA § 33-24-51, by purchasing liability insurance that will cover damages “arising by reason of ownership, maintenance, operation, or use of any motor vehicle . . . ,” A determination of “whether an event arises from the ‘use’ of a motor vehicle depends largely on the circumstances, and a bright-line definition is elusive.” But statutes that provide for a waiver of sovereign immunity, such as OCGA § 33-24-51, “are in derogation of the common law and thus are to be strictly construed against a finding of waiver.” Keeping the foregoing in mind, in construing the meaning of “use,” we have explained that “the question to be answered is whether the injury originated from, had its origin in, grew out of, or flowed from the use of the motor vehicle as a vehicle.” However, while the term “does extend beyond actual physical contact,” it “does not imply remoteness.” And this is reflected in our case law in that when we have found a waiver of sovereign immunity for the “use” of a motor vehicle, it has concerned motor vehicles that were actively in use when the injury arose—which clearly was not the case with the pot-patcher at issue here.

Indeed, although there is a dispute as to whether Barefoot’s accident was caused by excess gravel left in the road by the pot-patcher, it is undisputed that the County pot-patcher was not present when Barefoot’s accident occurred. Thus, whatever role the pot-patcher played approximately 24 hours before the accident when it dispersed gravel on Lower Harmony Road, it was no longer being used as a motor vehicle at the time Barefoot’s injuries arose. This is in contrast to the cases in which we have held that a vehicle was “in use” for purposes of waiving sovereign immunity under OCGA § 33-24-51 when the vehicle was quite clearly “being used” as a motor vehicle at the same time the injury occurred. And given that we must strictly construe OCGA § 33-24-51 against a finding of waiver, we disagree with the trial court that the use of the County’s pot-patcher gave rise to a waiver of sovereign immunity under these facts. Thus, we agree with the County that any use of the pot-patcher was too remote in time to waive sovereign immunity pursuant to OCGA § 33-24-51, and we reverse the trial court’s denial of summary judgment.

Decided December 16, 2011

Owen, Gleaton, Egan, Jones & Sweeney, W. Seaborn Jones, Derrick L. Bingham, for appellant.

Savage, Turner, Pinson & Karsman, Robert B. Turner, Kathryn H. Pinckney, M. Steven Heath, Christopher D. Britt, Brenda H. Trammell, for appellee.

2. Because we have held that the trial court erred in denying summary judgment based on the County’s first enumeration of error, we need not consider the remaining enumerations.

Accordingly, for the foregoing reasons, we reverse the trial court’s denial of summary judgment to the County.

Judgment reversed.

Mikell, C. J., and Smith, P J., concur.

        See Harmon v. Innomed Techs, Inc., 309 Ga. App. 265, 265 (709 SE2d 888) (2011) (“We review de novo a trial court’s grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party.”).

       The driver and the passenger both denied that the truck was ever in Barefoot’s lane.

       The suit against the driver of the truck was later dismissed without prejudice at Barefoot’s request.

       The record shows that the pot-patcher has two engines, drives up and down roads, and is self-propelled.

        Thompson v. City of Fitzgerald, 248 Ga. App. 725, 725 (548 SE2d 368) (2001).

        Id. at 725-26 (punctuation omitted).

        Id. at 726.

        Williams v. Whitfield County, 289 Ga. App. 301, 302 (656 SE2d 584) (2008).

        DeKalb State Court Prob. Dep’t v. Currid, 287 Ga. App. 649, 651 (1) (653 SE2d 90) (2007) (punctuation omitted).

       OCGA § 33-24-51 (a) (emphasis supplied); see also OCGA § 36-92-2 (providing the monetary limits up to which sovereign immunity is waived “for a loss arising out of claims for the negligent use of a covered motor vehicle”).

        Gish v. Thomas, 302 Ga. App. 854, 861 (2) (691 SE2d 900) (2010) (punctuation omitted); see also Williams, 289 Ga. App. at 304 (same).

        Gish, 302 Ga. App. at 860 (2) (emphasis supplied).

        Id. at 861 (2) (punctuation omitted); see also Williams, 289 Ga. App. at 304 (same).

        Mitchell v. City of St. Marys, 155 Ga. App. 642, 645 (2) (271 SE2d 895) (1980) (punctuation omitted).

        Cf. Am. Cas. Co. v. Fisher, 195 Ga. 136, 141 (23 SE2d 395) (1942) (“When the goods have been taken off the automobile and have actually come to rest, when the automobile itself is no longer connected with the process of unloading, and when the material which has been unloaded from the automobile has plainly started on its course to be delivered by other power and forces independent of the automobile and the actual method of unloading, the automobile then may be said to be no longer in use.”). Accord Pavlik v. St. Paul Mercury Ins. Co., 291 F2d 124, 126 (7th Cir. 1961) (holding that vehicle was no longer in use when accident occurred after goods were unloaded); Zurich Gen. Accident & Liab. Ins. Co. v. Am. Mut. Liab. Ins. Co. of Boston, 192 A. 387 (N.J. 1937) (same).

        Compare McElmurray v. Augusta-Richmond County, 274 Ga. App. 605, 611 (2) (b) n.36 (618 SE2d 59) (2005) (holding that “where a truck is being used for spreading sewage sludge, damages resulting from the spreading of the sludge from the truck are injuries arising by reason of use of the truck” and noting that “[t]he land would have been contaminated when the sewage sludge was applied” (emphasis supplied)), and Mitchell, 155 Ga. App. at 645 (2) (holding that “where a truck is being used for mosquito eradication, damages resulting from the spraying of insecticide from that truck are injuries arising by reason of the ‘use’ of that truck” (emphasis supplied)), with City of Rossville v. Britton, 170 Ga. App. 1, 3 (2) (316 SE2d 16) (1984) (holding that city garbage truck was not “in use” when a child was injured by a dumpster placed by the truck two days before). Cf. Roberts v. Burke County Sch. Dist., 267 Ga. 665, 665-66 (482 SE2d 283) (1997) (holding that school bus was not “in use” when it dropped child off, left the scene, and child was struck by another vehicle); DeKalb County Sch. Dist. v. Allen, 254 Ga. App. 66, 69-70 (1) (561 SE2d 202) (2002) (holding that school bus was “in use” when it was at scene to pick up child and child was struck by another vehicle); Brock v. Sumter County Sch. Bd., 246 Ga. App. 815, 817-18 (1) (542 SE2d 547) (2000) (holding that school bus was not “in use” when child was struck by another vehicle while waiting for the bus because school bus was not at the scene).

        See Gish, 302 Ga. App. at 860 (2).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A11A2061.
    In the Interest of J. H.
    (721 SE2d 616)
   BARNES, Presiding Judge.

The juvenile court adjudicated J. H. delinquent for committing multiple acts which would have constituted felonies if he had been an adult, including terroristic threats, cruelty to children in the second degree, family violence simple battery, participating in criminal street gang activity, and criminal damage to property in the second degree. At the hearing, the juvenile court determined that J. H. had three previous adjudications for acts that would have been felonies if he had been an adult, and in his written order held that J. H. had committed “Designated Felonies” and required restrictive custody pursuant to OCGA § 15-11-63. The court thus committed J. H. to the custody of the Georgia Department of Juvenile Justice for care, supervision, and planning, to be confined in a Youth Development Center for 60 months. J. H. appeals, asserting that the State failed to prove venue and that the evidence was insufficient to sustain his adjudication of delinquency on any of the acts alleged.

Decided December 16, 2011.

Samantha M. Edwards, for appellant.

J. David Miller, District Attorney, Laura A. Wood, Jessica W. Clark, Assistant District Attorneys, for appellee.

The State, to its credit, concedes that J. H.’s adjudication and commitment should be reversed because the State failed to prove venue and failed to produce sufficient evidence to sustain the adjudication on any of the acts alleged. The only witness who testified at the hearing was a police officer who simply repeated the hearsay complaints made to him by J. H.’s stepfather.

Because the State failed to prove venue and because the evidence against J. H. was insufficient, the juvenile court’s adjudication of delinquency and order of commitment is reversed.

Judgment reversed.

Adams and Blackwell, JJ., concur.


author: Miller, Presiding Judge.

text:
    A11A1587.
    RUDOLPH v. THE STATE.
    (721 SE2d 625)
   Miller, Presiding Judge.

Following a jury trial, Rajkumar Rudolph was found guilty of statutory rape (OCGA § 16-6-3 (a)), aggravated sexual battery (OCGA § 16-6-22.2 (b)), aggravated child molestation (OCGA § 16-6-4 (c)), child molestation (OCGA § 16-6-4 (a)), and burglary (OCGA § 16-7-1 (a)). Rudolph appeals from the denial of his motion for new trial, contending that his trial counsel was ineffective for failing to call two witnesses who would have undermined the victim’s trial testimony, for failing to properly consult him about his right to testify, and incorrectly informing the trial court that he did not want to testify. We discern no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence.” (Citation and punctuation omitted.) Fogerty v. State, 304 Ga. App. 546 (1) (696 SE2d 496) (2010). So viewed, Rudolph developed a relationship with his friend’s 12-year-old daughter, A. H., and showered her with gifts, including a cell phone. Over the course of several months, Rudolph and A. H. called and exchanged text messages with each other, which eventually turned sexual in nature. On November 15, 2007, Rudolph entered A. H.’s house without permission or authority. Upon seeing A. H. upstairs, Rudolph approached her, took off his pants, and placed A. H. on the floor. Rudolph then kissed A. H. on her breasts and vagina, inserted a finger into her vagina, and had sexual intercourse with her against her will.

1. Rudolph contends that his trial counsel was ineffective for failing to call his two sons to testify at trial, because their testimony would have impeached the victim’s testimony that she had numerous phone conversations with Rudolph.

To prevail on a claim of ineffective assistance of counsel, Rudolph must show both that trial counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984); Aaron v. State, 275 Ga. App. 269, 271 (4) (620 SE2d 499) (2005). We accept the trial court’s factual findings, unless clearly erroneous, and we review de novo the lower court’s legal conclusions. Boatright v. State, 308 Ga. App. 266, 267 (1) (707 SE2d 158) (2011).

It is well established that the decision as to which defense witness to call is a matter of trial strategy and tactics, and that tactical errors in that regard will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances.

(Citations and punctuation omitted.) Hubbard v. State, 285 Ga. 791, 794 (3) (683 SE2d 602) (2009).

At the hearing regarding Rudolph’s motion for new trial, his two sons testified that A. H. had a crush on one of Rudolph’s sons, and that A. H. often called Rudolph when she was searching for the son. The older son testified that, because his cell phone was broken during the relevant period, he often talked to A. H. using telephones belonging to other family members, including those belonging to Rudolph. To the contrary, however, the younger son stated that his older brother’s cell phone was working during that time. Trial counsel stated that he would not have called the two sons to testify given these inconsistencies, because his credibility with the jury would have been damaged. Under the circumstances, trial counsel’s decision not to call Rudolph’s sons was not deficient. See Hubbard, supra, 285 Ga. at 794 (3).

Further, even if Rudolph’s sons had testified at trial, Rudolph has not demonstrated that there is a reasonable probability that the outcome of the trial would have been different. While the testimony of the sons may have indicated that A. H. had a relationship with Rudolph’s son, it did not directly bear on the sexual acts that A. H. stated Rudolph performed on her. See Peñaranda v. State, 203 Ga. App. 740, 744 (4) (e) (417 SE2d 683) (1992) (holding that trial counsel was not ineffective for failing to call the victim’s babysitter, because the babysitter’s testimony did not relate to the sexual act alleged by the victim). As a result, Rudolph has not established that his counsel was ineffective.

2. Rudolph also contends that his trial counsel was ineffective for failing to advise him about his right to testify, and for incorrectly advising the court that Rudolph did not want to testify. Rudolph admitted that he had a conversation with trial counsel about testifying well before his trial, and that trial counsel advised him not to testify. Rudolph claims that counsel failed to have another conversation with him at trial. Trial counsel stated that he remembered the trial court discussing with Rudolph whether he wanted to testify at trial, and the trial transcript confirms the same. In particular, the trial court advised Rudolph to talk to his attorney about whether he should testify, and while there is no record of this discussion, trial counsel stated that he was certain that he had this conversation with Rudolph, because the court suggested that he do so. Based on his common practice, trial counsel stated that he would have directed Rudolph not to testify, but would have made it clear that it was ultimately Rudolph’s decision. See Bazemore v. State, 273 Ga. 160, 162 (1) (535 SE2d 760) (2000) (“Certainly, evidence of a routine or standard practice or procedure can be used in demonstrating compliance with constitutional standards.”) (citation omitted). Although Rudolph claims that his testimony proves otherwise, “it is the function of the trial court at the hearing on the motion for new trial to determine witness credibility and to resolve conflicts in the testimony.” (Citation omitted.) Mobley v. State, 264 Ga. 854, 856 (2) (452 SE2d 500) (1995). Here, the trial court chose to credit trial counsel’s testimony that counsel discussed with Rudolph his right to testify, and we have no power to overturn that credibility determination. See Huff v. State, 271 Ga. App. 553 (610 SE2d 177) (2005).

In any event, Rudolph has not shown that there is any likelihood that the outcome of the trial would have been different if he had testified at trial. At the hearing on the motion for new trial, Rudolph did not present any evidence as to what the content of his testimony would have been had he testified at trial, and therefore, he failed to demonstrate ineffective assistance of counsel. See Brown v. State, 288 Ga. App. 671, 672 (1) (a), (b) (655 SE2d 287) (2007). Moreover, trial counsel testified that Rudolph had privately admitted that he committed the conduct for which he was charged, and trial counsel stated that he was concerned about having Rudolph testify because he did not want to present perjured testimony. “As trial counsel is precluded from assisting his client in presenting perjured testimony, we reject [Rudolph’s] claim that his attorney was ineffective” for advising him to not testify. (Punctuation and footnote omitted.) Grooms v. State, 261 Ga. App. 549, 551 (3) (a) (583 SE2d 216) (2003). Based on the foregoing, Rudolph’s ineffective assistance of counsel claim fails.

Decided December 19, 2011.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, Richard A. Vandever, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington and Doyle, JJ., concur.


author: Adams, Judge.

text:
    A11A1763.
    In the Interest of D. E., a child.
    (721 SE2d 627)
   Adams, Judge.

D. E. was adjudicated delinquent following a finding that he committed burglary. He contends the evidence was insufficient to sustain the judgment.

On appeal, “[t]he 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.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). See also In the Interest ofJ. L. H., 289 Ga. App. 30 (656 SE2d 160) (2007) (same for delinquency proceedings). And, even in a delinquency proceeding “hearsay evidence has no probative value even when it is admitted without objection.” (Citation and punctuation omitted.) In the Interest ofE. C., 311 Ga. App. 549, 551 (2) (716 SE2d 601) (2011).

The nonhearsay evidence included the following: Detective Heather Turner testified that officers got a report of a burglary on December 28, 2010 and spoke to several alleged witnesses. While speaking with a witness at 214 Warren Street, the witness led Turner to a gun located under a bed, and, based on a telephone call to someone she believed to be the father of the witness, Turner confiscated the weapon. Based on police information, the gun had been stolen. Based on other information, Turner was led to 1307 West Hill Avenue Lane, from where, it was reported, the gun had been stolen. Detective Michael Rhodes testified that he investigated an incident at that address and that it was reported that a .22 caliber rifle had been stolen. Tonya Greer testified that D. E., her nephew, offered to sell her an Xbox game system and some games for $78; two days later he lowered the offer to $48.

Decided December 19, 2011.

Meredith G. Brasher, Patrick Warren, for appellant.

All of the remaining evidence that purportedly connected D. E. with the theft of the Xbox game system and the rifle was hearsay or double hearsay. “[I]t is error to permit an investigating officer to testify, under the guise of explaining the officer’s conduct, to what other persons related to the officer during the investigation.” (Citations and punctuation omitted.) White v. State, 273 Ga. 787, 788 (1) (546 SE2d 514) (2001).

Even D. E.’s purported admission was double hearsay. Detective Turner testified that Harvey Sessoms, who claimed to be D. E.’s cousin, told Turner that D. E. had a stolen gun in his bedroom; that an unidentified friend told him, i.e., Sessoms, that it was stolen from 1307 West Hill Avenue Lane; and that D. E. told him that he stole the gun. Neither Sessoms, the unidentified friend, nor D. E. testified.

Although [D. E.’s] statement might be an admission against interest, that exception would overcome only one layer of the hearsay. See Highsmith v. Fillingim, 171 Ga. App. 548, 549 (320 SE2d 391) (1984) (although one layer of hearsay may be overcome with exception to hearsay rule, second layer of hearsay remained).

Savage v. KGE Associates Ltd. Partnership, 260 Ga. App. 770, 779 (2) (c) (580 SE2d 591) (2003). Compare Moak v. State, 222 Ga. App. 36, 41 (5) (473 SE2d 576) (1996) (both layers of hearsay fell within hearsay exceptions). Accordingly, absent the hearsay, the evidence that D. E. committed burglary was plainly insufficient. See, e.g., In the Interest of E. C., 311 Ga. App. 551 (2) (adjudication of delinquency based on hearsay evidence reversed).

Judgment reversed.

Barnes, P. J., and Blackwell, J., concur.

J. David Miller, District Attorney, Laura A. Wood, Justo C. Cabral III, Assistant District Attorneys, for appellee.


author: MILLER, Presiding Judge.

text:
    A11A1915.
    In the Interest of R. H., a child.
    (721 SE2d 628)
   MILLER, Presiding Judge.

A juvenile court adjudicated R. H. delinquent for committing acts that would, if he were an adult, amount to burglary in violation of OCGA § 16-7-1. R. H. contends on appeal that the evidence was insufficient to sustain his adjudication of delinquency. We disagree and affirm the judgment below.

To prove that a juvenile is delinquent for committing acts of a criminal nature, the State must prove the commission of these acts beyond a reasonable doubt, just as it would in a criminal prosecution of an adult for the same acts. So, when a juvenile challenges the sufficiency of the evidence, we apply the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and we consider whether the evidence adduced at the hearing would permit a rational trier of fact to conclude beyond a reasonable doubt that the juvenile committed the acts with which he is charged. In considering the sufficiency of the evidence, we view the evidence in the light most favorable to the adjudication below, keeping in mind that it is for the trier of fact, not this Court, to weigh this evidence, resolve any conflicts in the evidence, and assess the credibility of witnesses.

(Citations and punctuation omitted.) In the Interest ofH. A., 311 Ga. App. 660, 661 (716 SE2d 768) (2011).

So viewed, the evidence shows that on the morning of November 15, 2010, the victim’s neighbor observed R. H., who was accompanied by another juvenile, knocking on the back door of the victim’s residence. She witnessed R. H. tampering with the victim’s door, open it a crack, and then close it. The victim was not at home. Although the neighbor did not see either of the juveniles enter the victim’s residence at that point in time, she left her home to run errands shortly thereafter. She returned home several hours later, at which time she became aware that someone had broken into the victim’s residence.

Later that same day, the neighbor called the police to report the suspicious activity in the neighborhood. Upon the responding off!-cers’ arrival at the scene, the police obtained from the neighbor a description of the activity and the juveniles, and then entered the victim’s residence to photograph the interior of the home. The residence was open even though the victim had locked her door before she left for work in the morning and had not yet returned home. The next day, the victim reported to the police that an envelope containing $450, three DVD movies, and two video games were missing from her home. She also reported that her gaming system and other video games had been disturbed, and a portion of a cigar was lying on a counter in her home. At his delinquency hearing, R. H. admitted that he had knocked on the victim’s door, “cracked it a little bit,” screamed the name of the victim’s boyfriend, and sat on the porch for awhile. The evidence revealed that the juveniles had wanted to see if the neighbor’s boyfriend was home so that they could play the neighbor’s video games, as they had done in the past.

“A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another . . . .” (Punctuation omitted.) OCGA § 16-7-1 (a).

R. H. argues that there was insufficient evidence of unauthorized entry into the victim’s residence. His argument is without merit. The evidence shows that R. H. was at the victim’s residence and was seen tampering with, and opening, the back door of the home. In addition, the victim testified that neither she nor her resident boyfriend gave R. H. permission to enter her residence on November 15, 2010, or to otherwise enter her residence when they were not there. Although R. H. focuses on the absence of testimony from the victim’s resident boyfriend, the testimony of the victim herself, as the property owner, was sufficient to show that R. H.’s entry was without authority. Cf. Davis v. State, 308 Ga. App. 7, 11 (1) (a) (ii) (706 SE2d 710) (2011) (holding that tenant’s testimony was sufficient, without testimony of property owner, to show that defendant’s entry was without authority); Webster v. State, 157 Ga. App. 813 (278 SE2d 714) (1981) (holding that the evidence was sufficient to establish entry was made without authority where one of three trustees, all of whom were legally entitled to withhold permission to enter burglarized church, testified that defendants did not have permission to enter church at time and date of burglary or to remove property therefrom). Accordingly, the evidence in this case was sufficient to enable the juvenile court to conclude that R. H. unlawfully entered the victim’s home.

R. H. also contends that there was insufficient evidence of intent to commit burglary. Indeed, “mere illegal entry alone does not satisfy all the elements of the crime of burglary; some evidence must also exist of an intent to commit a felony or, as in this case, a theft, separate and distinct from the unauthorized entry.” (Citation omitted.) Westmoreland v. State, 281 Ga. App. 497, 499 (2) (636 SE2d 692) (2006). “An intent to steal may be inferred when the evidence shows an unlawful entry into the building of another where valuable goods are stored or kept inside.” (Punctuation and footnote omitted.) In the Interest of T. C., 310 Ga. App. 482, 483 (714 SE2d 69) (2011). Here, the victim described valuable items that were missing from her residence, including $450 in cash, three DVD movies, and two video games. She also reported that her gaming system and video games had been disturbed. Moreover, R. H. was aware that items of value, specifically including the video games, were located inside the neighbor’s residence. This evidence authorized the juvenile court, sitting as the trier of fact, to infer that R. H. entered the residence with the intent to commit a theft. Cf. id. (“The evidence that boxes had been ransacked, and that the [victim’s] home was devoid of electronics, authorized the juvenile court, sitting as the trier of fact, to infer that [the juvenile] entered the residence with the intent to commit a theft but found nothing he wished to take.”).

Decided December 20, 2011.

Alice A. Button, for appellant.

Fredric D. Bright, District Attorney, Johnathan C. Gaskin, Joseph M. McKinnon, Assistant District Attorneys, for appellee.

Finally, R. H. argues that the inconsistent verdicts between R. H. and the other juvenile, whose burglary charge was dismissed, show that there was a failure of proof of evidence as to both juveniles. R. H.’s argument is unavailing. Contrary to R. H.’s assertion otherwise, the evidence against R. H. was not the same as that against the other juvenile. Notably, it was R. H., and not the other juvenile, who was seen tampering with and opening the door of the victim’s residence; the other juvenile, however, was only seen walking away from the victim’s residence and in the direction of his own home.

In sum, the evidence adduced at the delinquency hearing was sufficient to enable a rational trier of fact to find the essential elements of burglary beyond a reasonable doubt.

Judgment affirmed.

Ellington and Doyle, JJ., concur.


author: McFadden, Judge.

text:
    A11A2334.
    DENNARD v. THE STATE.
    (721 SE2d 610)
   McFadden, Judge.

Cedric Dennard appeals from his conviction for criminal attempt to commit armed robbery. He claims that the trial court erred in admitting similar transaction evidence, allowing hearsay testimony and failing to grant immunity to a witness. Finding no error, we affirm.

Construed in favor of the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence shows that Dennard arranged to meet Yi Hsuan Huang in a shopping mall to sell four iPhones to Huang for $850. The two met at the mall, and Dennard told Huang that the phones were in his truck. They then went to the parking lot, where Dennard pulled out a gun and demanded Huang’s money. Huang, who had $900 with him, said he would give Dennard the money if he stopped pointing the gun at him. Dennard put the gun in his pocket, and a struggle ensued. Dennard attempted to run away, but was apprehended by a security officer.

1. Dennard contends that the trial court erred by permitting the state to introduce evidence of two prior offenses because they are not sufficiently similar to the current attempted armed robbery. We disagree.

Evidence that a defendant has committed an independent offense or bad act is admissible if the State shows and the trial court rules that there is a sufficient connection or similarity between the independent offenses or acts and the crime charged so proof of the former tends to prove the latter. When considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question. We will uphold the trial court’s decision to admit a similar transaction unless it is an abuse of discretion.

(Citation and punctuation omitted.) Avila v. State, 289 Ga. 409, 411 (2) (711 SE2d 706) (2011).

Here, the evidence showed that approximately four years before the attempted armed robbery in this case, Dennard and two other males stopped their car beside a woman in a store parking lot and attempted to steal her purse. As she struggled with one of the men who had gotten out of the car, an occupant of the car pointed a gun out the window, and when bystanders intervened, a shot was fired. The would-be robbers sped away from the scene, but were later apprehended by police, who found Dennard in the front passenger seat with two guns under his seat. Dennard was charged with criminal attempt to commit armed robbery and two counts of aggravated assault, and he pled guilty to the aggravated assault counts.

The evidence also showed that several years prior to that incident, Dennard committed a robbery at a jewelry store. Using a gun to threaten the store clerk, he stole two pieces of jewelry and later sold the stolen items for cash. After he was contacted by police, Dennard admitted that he had committed the robbery and pled guilty to robbery by force.

Although Dennard now argues that the prior offenses are not similar to the current charge, at the similar transaction hearing he conceded that there were similarities between the prior jewelry store robbery and this case. Regardless, we agree with the finding of the trial court that there is sufficient similarity between both prior offenses and the instant criminal attempt to commit armed robbery. All three of the incidents involved the use of a gun while forcibly attempting to steal property from a lone victim, and one of the prior offenses, like the current one, occurred in a parking lot. See Pace v. State, 272 Ga. App. 16, 16-17 (1) (611 SE2d 694) (2005). “The trial court also gave a proper limiting instruction regarding the jury’s use of the evidence. Under these circumstances, the admission of the similar transaction[s] was clearly not an abuse of discretion.” Avila, 289 Ga. App. at 411.

2. Dennard claims that the trial court erred in allowing hearsay testimony from one of the similar transaction witnesses. The claim is without merit.

A police lieutenant was called to testify about Dennard’s prior robbery of the jewelry store. Defense counsel objected when the lieutenant testified that, while investigating a different robbery at the same store, the suspects said that they had previously met with Dennard. The trial court sustained defense counsel’s hearsay objection, ruling that the lieutenant could not testify about what the suspects in a different crime told him, but that he could explain what he did after talking to them.

The lieutenant then testified that, after speaking with those suspects, he went and spoke with Dennard. At trial, Dennard raised no objection to that testimony, but now claims that it was inadmissible hearsay. “[B]y not making a hearsay objection at the time the testimony was introduced, [Dennard] has waived this issue for purposes of appeal.” (Citation omitted.) Wood v. State, 304 Ga. App. 52, 52-53 (2) (695 SE2d 391) (2010).

Furthermore, even if the objection had not been waived, the testimony in question was not hearsay because the lieutenant did not testify about another person’s out-of-court statements, and instead merely explained that he went to talk to Dennard after having spoken with other persons. See Howard v. State, 305 Ga. App. 159, 161 (2) (a) (699 SE2d 114) (2010) (testimony considered hearsay only if witness testifies about another party’s statement in order to prove its truth); OCGA § 24-3-2 (facts explaining conduct in legal investigation not hearsay).

Decided December 8, 2011

Reconsideration denied December 21, 2011.

Bernadette C. Crucilla, for appellant.

Wayne G. Tillis, District Attorney, Sandra G. Matson, Dorothy V. Hull, Assistant District Attorneys, for appellee.

3. Dennard claims that the trial court should have granted immunity to a jail inmate so he could testify as a defense witness without compromising his right against self-incrimination. However, “blinder Georgia law, the district attorney has discretion to grant immunity to witnesses for the state. [OCGA § 24-9-28 (a).] Our statutes provide no such discretion to the court and, further, make no provision for a grant of immunity to defense witnesses.” Dampier v. State, 249 Ga. 299, 300 (290 SE2d 431) (1982). Accordingly, we find í no error. See House v. State, 203 Ga. App. 55 (1) (416 SE2d 108) (1992) (no error in refusing to grant use immunity to defense witness).

Judgment affirmed.

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


text:
    A11A1888.
    COLLIER et al. v. WEHMEIER et al.
    (721 SE2d 919)
   McFadden, Judge.

Maycel Collier and Cary Collier appeal the dismissal of their declaratory judgment action against Rosemary Wehmeier and six other defendants. They argue that the trial court abused its discretion in applying the seven-factor forum non conveniens test. Because we find that the trial court did not abuse its discretion and considered all seven factors as it was required to do, we affirm.

When Bruce Collier died in Florida, Maycel Collier and her daughter, Cary Collier, Florida residents, filed a petition for the administration of his estate in the Circuit Court for Marion County, Florida. They contended that Maycel Collier was Bruce Collier’s surviving spouse and that Cary Collier was his daughter. Maycel Collier sought appointment as the personal representative of the estate. Potential beneficiaries of Bruce Collier objected to the grant of letters of administration to Maycel Collier on the ground that she was not Bruce Collier’s surviving spouse. The resolution of the issue is pending in the Marion County, Florida court.

Maycel Collier and Cary Collier filed this action in Fulton County Superior Court, seeking a declaration that Maycel Collier was married by common law to Bruce Collier at the time of his death and that Cary Collier is Bruce and Maycel Collier’s legitimate daughter. They named seven defendants, five of whom are Florida residents and two of whom live in the metropolitan Atlanta area.

Three of the defendants moved to dismiss the Fulton County action under the doctrine of forum non conveniens. The trial court granted the motion, and the appellants filed this appeal.

OCGA § 9-10-31.1 (a) provides that a court may decline to hear a case if it “finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state[.]” The statute lists seven factors that the trial court must consider in making the decision. The seven factors are:

(1) Relative ease of access to sources of proof;
(2) Availability and cost of compulsory process for attendance of unwilling witnesses;
(3) Possibility of viewing of the premises, if viewing would be appropriate to the action;
(4) Unnecessary expense or trouble to the defendant not necessary to the plaintiffs own right to pursue his or her remedy;
(5) Administrative difficulties for the forum courts;
(6) Existence of local interests in deciding the case locally; and
(7) The traditional deference given to a plaintiffs choice of forum.

OCGA § 9-10-31.1 (a). The movant has the burden of showing that the OCGA § 9-10-31.1 (a) factors support dismissal. See R. J. Taylor Mem. Hosp. v. Beck, 280 Ga. 660, 662 (3) (631 SE2d 684) (2006). We review a trial court’s decision under the statute for an abuse of discretion. The John Hardy Group v. Cayo Largo Hotel Assocs., 286 Ga. App. 588, 590 (2) (649 SE2d 826) (2007).

1. The appellants argue that the only evidence before the court was the allegations in their verified complaint. Therefore, they claim, the trial court abused its discretion and arbitrarily disregarded the only evidence before it in order to rule in favor of the defendants. But, as the defendants counter, the facts necessary for the resolution of the issue are undisputed, and the trial court therefore had a sufficient basis to consider the issue. See Hawthorn Suites &c. v. Feneck, 282 Ga. 554, 555 (1) (651 SE2d 664) (2007).

2. The appellants argue that the superior court erred in its application of the seven factors. Considering the first and second factors together, the relative ease of access to sources of proof and the availability and cost of compulsory process for attendance of unwilling witnesses, the court found that all the parties, but for two defendants, reside in the state of Florida. (Although the court wrote that all but two of the parties reside in Georgia, it is clear from the context that the court meant to write Florida. The appellants do not contend otherwise.) This fact, the court found, weighed in favor of litigating the matter in Florida.

The appellants argue that at least two nonparty witnesses — neighbors of Bruce and Maycel Collier — reside in Georgia, and it would be more convenient for them to present their testimony in Georgia. These witnesses, they assert, are beyond the subpoena power of the Florida court, and the appellants will be deprived of their testimony if they are forced to litigate the issue in Florida. They do not describe the nature of the testimony, other than that the witnesses will testify that they believed Bruce Collier and Maycel Collier were married. Additionally, the appellants argue that they plan to present medical records from South Fulton Medical Center, which may require representatives of the hospital to provide testimony. The appellants do not describe what these records are.

As for the third factor, it is not necessary to view any premises. The parties concede, and the trial court found, that this factor is neutral.

Considering the fourth factor, the unnecessary expense or trouble to the defendants not necessary to the plaintiffs own right to pursue his or her remedy, the court ruled that due to the location of most parties and the pending related probate matter in Florida, this factor weighs in favor of dismissal.

The trial court found that factor five, the administrative difficulties for the forum court, weighed in favor of dismissal because of the related matter pending in Florida that would likely result in scheduling and other conflicts. The appellants contend that this factor is neutral.

The trial court also weighed the sixth factor, the local interest in deciding the case locally, in favor of the defendants. It observed that at the time of Bruce Collier’s death, neither he nor Maycel Collier owned property or resided in Georgia. Further, the very issue is pending in the Florida probate matter. The appellants argue that this factor weighs in their favor because the issue involves the application of Georgia law. But the entire issue arose in the context of the administration of a Florida resident’s Florida estate involving potential claimants who primarily are residents of Florida.

Decided December 21, 2011.

Jerry A. Landers, Jr., for appellants.

Stephen B. Davis, Fred L. Cavalli, Robert E. Turner, for appel-lees.

Finally, the court held that the traditional deference to the plaintiffs choice of forum weighed in favor of the appellants. The appellants argue that the trial court should have given great weight to this factor, and in the absence of a clear showing of inconvenience to the defendants, this factor trumps the other factors. OCGA § 9-10-31.1 (a) requires the trial court to “give consideration” to this factor as well as the others, and the court’s order indicated that it did so.

The trial court made written findings of fact, supported by evidence, reflecting an analysis of the procedural framework of the statute, specifically considering and weighing each of the seven factors of OCGA § 9-10-31.1 (a). See Fed. Ins. Co. v. Chicago Ins. Co., 281 Ga. App. 152, 153 (635 SE2d 411) (2006). We therefore can discern no abuse of discretion and affirm the trial court’s decision to dismiss the action on forum non conveniens grounds.

Judgment affirmed.

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


author: McFADDEN, Judge.

text:
    A11A1890.
    ELLINGTON v. GALLERY CONDOMINIUM ASSOCIATION, INC.
    (721 SE2d 631)
   McFADDEN, Judge.

Courtney Ellington appeals the grant of summary judgment to Gallery Condominium Association, Inc. in its suit to recover unpaid condominium assessments. She argues that genuine issues of material fact exist and that the evidence does not support the association’s award of attorney fees. We find that Ellington did not meet her burden of coming forward with evidence to create a genuine issue of material fact and that the evidence supports the attorney fees award. We thus affirm.

The association filed this suit seeking to recover unpaid association assessments, late fees, utilities, interest and attorney fees. Ellington answered the complaint, admitting that she had agreed to pay a portion of the assessments but contending that the association failed to respond to her requests for an accounting of the additional amounts the association charged, beyond what she had agreed to pay.

The association filed a motion for summary judgment, and Ellington responded. The trial court granted the motion. It found that by failing to respond timely to the association’s request for admissions, Ellington admitted that she had not made a condominium assessment payment since September 1, 2009. Further, the court noted that in her response to the summary judgment motion, Ellington challenged the amounts the condominium association charged, but she did not deny that she had not paid what she owes. The court observed that the association had presented evidence about the amount owed at the hearing on the motion for summary judgment, and the court entered judgment for that amount. The court also awarded the association costs and attorney fees under OCGA § 44-3-109 (b) (3).

1. Summary judgment is appropriate when the court,
viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. 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 nonmov-ing party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citations and punctuation omitted.) Atlanta Georgetown Condo. Assn. v. Chaplin, 235 Ga. App. 460, 460-461 (509 SE2d 729) (1998).

(a) Ellington argues that the association did not prove that it could charge utilities as part of the assessments. The association attached the declaration of condominium to its motion for summary judgment. “[T]he relationship between a condominium association and its unit owners is a contractual one, and the condominium instruments are analogous to an express contract between the unit owner/members and the condominium association.” (Citation and punctuation omitted.) Frantz v. Piccadilly Place Condo. Assn., 278 Ga. 103, 105 (2) (597 SE2d 354) (2004). The documents “should be strictly construed as they are written, giving the language its clear, simple, and unambiguous meaning.” (Citation omitted.) Bradford Square Condo. Assn. v. Miller, 258 Ga. App. 240, 245 (1) (a) (573 SE2d 405) (2002).

The Gallery Condominium declaration provides that common expenses shall be assessed against all the units. It defines common expenses as “the expenses incurred ... by the [association for the general benefit of the condominium.” The declaration also grants the association the right, upon certain conditions of an owner’s nonpayment, “to suspend water, electricity, gas, heat, air conditioning, or other utility services . . . paid for as a [c]ommon [e]xpense by the [a]ssociation.” These provisions clearly contemplate the association paying for utilities as a common expense. Additionally, OCGA § 44-3-80 (b) (3) provides “[a]ny other common expenses significantly disproportionately benefiting all of the units shall be assessed equitably among all of the condominium units.” Under this statute as well as the declaration of condominium, the association was within its authority to charge unit owners for utilities the association had paid as a common expense.

(b) Ellington argues that the association never proved the method it used for calculating and recording the utilities. She argues that the association’s own documents — an account ledger dated July 2010, the complaint, and the motion for summary judgment — all show different amounts due, thereby creating an issue of material fact. “[W]e conclude that the trial court’s grant of the [association’s motion for summary judgment seeking damages which accrued after the date its complaint was filed implicitly approved an amendment thereof to such effect under OCGA § 9-11-15 (b).” Pew v. One Buckhead Loop Condo. Assn., 305 Ga. App. 456, 458 (1) (a) (700 SE2d 831) (2010). And because the trial court considered the association’s evidence at the hearing on the summary judgment motion yet Ellington did not include the hearing transcript in the appellate record, we must assume the judgment below is correct. Hosseini v. Donino, 222 Ga. App. 697 (1) (475 SE2d 665) (1996).

(c) Ellington argues that the affidavits of Ben Burton and Jason Welchel, on which the association relied in support of its motion for summary judgment, are based on hearsay. In his affidavit, Ben Burton, the property manager, testified that he participates in and is familiar with the association’s billing of owners for assessments and other costs and charges under the declaration; that he is familiar with the association’s records and record-keeping process; and that he had personal knowledge of the information in his affidavit. He attached to his affidavit the account ledger for Ellington. This was sufficient to satisfy the business records exception to the hearsay rule. See Hertz Corp. v. McCray, 198 Ga. App. 484, 485-486 (2) (402 SE2d 298) (1991). The trial court did not err in considering this affidavit.

In his affidavit, Jason Welchel, the director of property management for the association, testified that he is familiar with the dispute between the association and Ellington. He testified that at the request of a member of the board of directors, he contacted Ellington to discuss her concerns but she did not return his calls. Welchel also testified that an unspecified “representative of the association” left a letter inviting Ellington to attend a board meeting and that the letter was transmitted by e-mail to Ellington. Further, he testified that an unspecified “representative of the association” left a voice mail on Ellington’s cellular phone. He attached to his affidavit the association’s notes concerning communications with Ellington.

To the extent Welchel’s affidavit contained hearsay, Ellington has failed to demonstrate that

the trial court considered any inadmissible evidence in reaching its decision. [She has] failed to rebut the presumption that the trial court recognized the inadmissible evidence and disregarded it. Moreover, even if the trial court had considered some inadmissible evidence we would not find it to be reversible error in the case sub judice because the uncontroverted admissible evidence demanded the judgment.

Spell v. Bible Baptist Church, 166 Ga. App. 22, 24 (2) (303 SE2d 156) (1983).

2. Ellington argues that the trial court erred in awarding the association attorney fees under OCGA § 44-3-109 (b) (3) because the association did not request fees under that statute in its complaint. She further argues that the amount awarded was not reasonable.

Under OCGA § 44-3-109 (b) (3), “[t]o the extent that the condominium instruments provide, the personal obligation of the unit owner . . . shall also include [t]he costs of collection, including court costs, . . . and reasonable attorney’s fees actually incurred.” The undisputed evidence in this case shows that the declaration grants the association the right to institute a collection suit against a delinquent owner and to seek all amounts due, including attorney fees. Consequently, “an award of attorney fees was mandated under the statute. Where a statute’s language as to an award of attorney fees is mandatory, the trial court is required to award attorney fees.” Springs Condo. Assn. v. Harris, 297 Ga. App. 507, 508 (677 SE2d 715) (2009). '

As for Ellington’s argument that the amount of-fees awarded was unreasonable, the court observed in its order that evidence was presented at the hearing, and the association attached to its motion for summary judgment the affidavit of its attorney outlining the fees incurred. The trial court had evidence before it to assess the proper amount of fees to be awarded, and “[wjithout the transcript, there is simply nothing to review.” Solon Automated Sues. v. Crescent Court Apartments, 132 Ga. App. 593, 594 (3) (208 SE2d 607) (1974).

Decided December 21, 2011.

LeRyan P. Lambert, for appellant.

Moore & Reese, Julie A. Liberman, for appellee.

Judgment affirmed.

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


author: Andrews, Judge.

text:
    A11A2384.
    GOFFAUX v. THE STATE.
    (721 SE2d 635)
   Andrews, Judge.

Douglas Fullmer Goffaux appeals from the trial court’s order denying his pre-trial motion to dismiss his indictment for child molestation on the ground that the State violated his right to a speedy trial under the Sixth Amendment to the United States Constitution. For the following reasons, we vacate the order denying the motion and remand the case for reconsideration by the trial court.

Goffaux was arrested on August 2, 2007, on the charge of child molestation, released on bond the following day, and indicted on one count of child molestation on February 4, 2011. He pled not guilty on March 25, 2011, retained defense counsel for the first time on March 30, 2011, and filed his motion to dismiss the indictment for lack of a speedy trial on April 15, 2011. The trial court denied the motion on July 20, 2011, and Goffaux appealed.

In considering a defendant’s claim that he was denied his constitutional right to a speedy trial, the trial court is required to decide as a threshold matter whether the delay at issue was long enough to create “presumptive prejudice.” Doggett v. United States, 505 U. S. 647, 651 (112 SC 2686, 120 LE2d 520) (1992); Scandrett v. State, 279 Ga. 632, 633 (619 SE2d 603) (2005); Ruffin v. State, 284 Ga. 52, 55 (663 SE2d 189) (2008). If the delay was not long enough to create presumptive prejudice, the speedy trial claim fails at the threshold. Id. A delay long enough to be presumptively prejudicial triggers a requirement that the trial court analyze the speedy trial claim by balancing the conduct of the state and the defendant under four factors set forth in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972): (1) whether the delay before trial was uncommonly long; (2) whether the state or the defendant is more to blame for the delay; (3) whether, in due course, the defendant asserted the right to a speedy trial; and (4) whether the defendant suffered prejudice as a result of the delay. Doggett, 505 U. S. at 651-652. Furthermore, after making a threshold determination that the delay was long enough to create presumptive prejudice, the trial court must consider the delay a second time as part of the prejudice factor of the four-factor Barker analysis. Boseman v. State, 263 Ga. 730, 732 (438 SE2d 626) (1994). In reviewing the trial court’s ruling on appeal, no single factor is necessary or sufficient to sustain a speedy trial claim, and we afford deference to the trial court’s findings of fact and weighing of disputed facts. Williams v. State, 277 Ga. 598, 599 (592 SE2d 848) (2004). “We review the trial court’s ruling for abuse of discretion.” Fallen v. State, 289 Ga. 247, 248 (710 SE2d 559) (2011).

As to the threshold inquiry of whether the delay at issue was long enough to create presumptive prejudice, “[wjhere a trial has not occurred, the delay should be calculated from the date of arrest or other formal accusation to the date on which a defendant’s speedy trial motion was granted or denied.” State v. Porter, 288 Ga. 524, 526 (705 SE2d 636) (2011). Calculated from Goffaux’s arrest on August 2, 2007, to the denial of his motion to dismiss on July 20, 2011, a delay of almost 48 months occurred in this case. “A delay approaching one year is generally deemed to be presumptively prejudicial.” State v. Pickett, 288 Ga. 674, 675 (706 SE2d 561) (2011). Because the delay in this case crossed the threshold for presumptive prejudice, the trial court correctly proceeded to analyze the four Barker factors. Ruffin, 284 Ga. at 58.

As to the first Barker factor — the length of the delay — despite the fact that Goffaux was released on bond, the delay of almost 48 months in this case was uncommonly long. Ruffin, 284 Ga. at 57-59. The trial court correctly found that this factor weighs against the State.

As to the second Barker factor — the reasons for the delay — the only explanation provided by the State for the delay was the extended illness of a police investigator assigned to the case, but there was no evidence that the State deliberately delayed the trial in order to hamper the defense. The trial court correctly found that, because the evidence showed that delay attributable to the State was negligent, unintentional, or unexplained, this factor weighed to a lesser degree or benignly against the State. Strunk v. United States, 412 U. S. 434, 436 (93 SC 2260, 37 LE2d 56) (1973); State v. Carr, 278 Ga. 124, 126 (598 SE2d 468) (2004); Boseman, 263 Ga. at 733.

As to the third Barker factor — the defendant’s assertion of the right to a speedy trial — we find that the trial court significantly erred in its analysis. The trial court weighed this factor strongly against Goffaux on the basis that it was his responsibility to assert the right to a speedy trial; that he failed to do so until he filed his motion to dismiss the indictment for lack of a speedy trial on April 15, 2011, over 44 months after his arrest; and that he failed to file a statutory demand for a speedy trial pursuant to OCGA § 17-7-170. The record shows that Goffaux was arrested on August 2, 2007, released on bond on August 3, 2007, but not indicted on the charges for which he was arrested until February 4, 2011. Goffaux could have asserted his constitutional right to a speedy trial at any time after he was arrested; he was not required to wait until he was indicted 42 months after his arrest. Pickett, 288 Ga. at 676; Ruffin, 284 Ga. at 63. Moreover, “once his constitutional right accrues, the defendant has the responsibility to assert it, and delay in doing so normally will be weighed against him.” Pickett, 288 Ga. at 676. As to Goffaux’s failure to file a statutory speedy trial demand, he was not entitled to file a demand during the 42 months following his arrest but prior to the indictment (OCGA § 17-7-170 (a)), and the filing of a demand after the indictment was not a prerequisite for asserting a violation of the constitutional right to a speedy trial. State v. Gleaton, 288 Ga. 373, 376 (703 SE2d 642) (2010). The question under this Barker factor is whether Goffaux asserted the constitutional right to a speedy trial “in due course,” which “requires a close examination of the procedural history of the case with particular attention to the timing, form, and vigor of the accused’s demands to be tried immediately.” Ruffin, 284 Ga. at 63. Although the trial court found that Goffaux’s delay in asserting his right to a speedy trial strongly weighed against him, the court did not consider or discuss that “a trial court has the discretion to mitigate the weight given this factor when a defendant fails to assert his right during the period between arrest and indictment if he was out on bond and without counsel.” Pickett, 288 Ga. at 676; Gleaton, 288 Ga. at 375-376. Goffaux was out on bond and without counsel for the entire period of 42 months between his arrest and indictment and then obtained counsel and asserted his right to a speedy trial by moving to dismiss the indictment two-and-a-half months after he was indicted. Porter, 288 Ga. at 528. Whether this Barker factor should be weighed differently based on these particular circumstances is a matter that requires consideration and the exercise of discretion by the trial court. Pickett, 288 Ga. at 677.

As to the fourth Barker factor — prejudice as a result of the delay — this factor required that the trial court consider three types of prejudice which could be caused by an unreasonable delay before trial: (1) oppressive pretrial incarceration; (2) anxiety and concern of the defendant; and (3) impairment of the defense by the dimming of memories and loss of exculpatory evidence. Doggett, 505 U. S. at 654; Johnson v. State, 268 Ga. 416, 417 (490 SE2d 91) (1997). It is undisputed that Goffaux was not subjected to oppressive pretrial incarceration, and the trial court did not err by concluding that Goffaux failed to show that he suffered anxiety or concern in excess of that commonly experienced by defendants facing the charge at issue. Williams v. State, 279 Ga. 106, 110 (610 SE2d 32) (2005); Herndon v. State, 277 Ga. App. 374, 379 (626 SE2d 579) (2006). Impairment of the defense is the most important type of prejudice considered as part of the fourth Barker factor “because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Barker, 407 U. S. at 532. Goffaux argues that the trial court should have found that the delay of almost 48 months impaired his defense because, as a result of the delay, the victim’s memory may have dimmed or changed and other witnesses who might have had information helpful to the defense — men with whom the victim’s mother lived after the alleged molestation — could not be located. Goffaux produced no specific or particularized evidence that the delay prejudiced his ability to produce testimony or raise defenses. The trial court correctly found that Goffaux’s generalized claims or speculation about possible changes in the victim’s memory or about witnesses who might be helpful were insufficient to establish prejudice. Frazier v. State, 277 Ga. App. 881, 883 (627 SE2d 894) (2006); Jackson v. State, 272 Ga. 782, 783 (534 SE2d 796) (2000). But even without specific proof of prejudice, there is a presumption that the delay of almost 48 months in this case “ compromise [d] the reliability of [the] trial in ways that neither party can prove or, for that matter, identify.” Doggett, 505 U. S. at 655. Accordingly, after considering the delay for the first time in the threshold determination of “presumptive prejudice,” the trial court was also required to consider the delay a second time by factoring it into the prejudice analysis with “the presumption that pretrial delay has prejudiced the accused intensif[ying] over time.” Doggett, 505 U. S. at 652, 656-658; Boseman, 263 Ga. at 732; Fallen, 289 Ga. at 248. “Delay does not per se prejudice the defense because it can tilt the case in favor of the defense or the prosecution, and ‘one cannot generally be sure which of them it has prejudiced more severely.’ [Doggett, 505 U. S.] at 655; Barker, 407 U. S. at 521.” State v. Giddens, 280 Ga. App. 586, 589 (634 SE2d 526) (2006). It follows that “the presumptive prejudice arising from delay ‘cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria.’ Doggett, [505 U. S. at 656]. Instead, ‘it is part of the mix of relevant facts, and its importance increases with the length of delay.’ Id.” Boseman, 263 Ga. at 732; Fallen 289 Ga. at 248. Although the trial court found no specific proof of the three types of prejudice that could be caused by an unreasonable delay, we find no indication in the court’s order that it considered for a second time the presumptive prejudice arising from the pretrial delay of almost 48 months by factoring it into the prejudice analysis as part of the mix of relevant facts.

Decided December 21, 2011.

Wade C. Hoyt III, for appellant.

Leigh E. Patterson, District Attorney, John F. McClellan, Jr., Assistant District Attorney, for appellee.

Balancing all four Barker factors, the trial court found that Goffaux had not been denied his Sixth Amendment right to a speedy trial and denied the motion to dismiss the indictment. Nevertheless, as set forth above, we find that the trial court’s analysis of the third and fourth Barker factors reflects significant legal errors. Specifically, the trial court failed in Barker factor three to give any consideration to facts showing that Goffaux was out on bond and without counsel during the 42-month period between his arrest and indictment, and failed in Barker factor four to consider the effect of presumptive prejudice arising from the 48-month pretrial delay. Although a trial court’s application of the Barker balancing test is reviewed on appeal only for abuse of discretion, “where . . . the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished.” Williams, 277 Ga. at 601; Pickett, 288 Ga. at 679.

If the trial court significantly misapplies the law or clearly errs in a material factual finding, the trial court’s exercise of discretion can be affirmed only if the appellate court can conclude that, had the trial court used the correct facts and legal analysis, it would have had no discretion to reach a different judgment.

Pickett, 288 Ga. at 679. Considering the legal errors in the trial court’s analysis, we cannot conclude that, even absent those errors, the trial court would have been required as a matter of law to exercise its discretion to find that Goffaux’s Sixth Amendment right to a speedy trial was not violated. Accordingly, we vacate the trial court’s judgment and remand the case to the trial court for the court to exercise its discretion considering all the relevant facts and the correct legal analysis as set forth above. Id. at 679-680.

Judgment vacated and case remanded.

Phipps, P. J., and McFadden, J., concur.


author: MlKELL, Chief Judge.

text:
    A10A1182.
    BOYKINS v. THE STATE.
    (721 SE2d 639)
    Decided December 22, 2011.

      Lynn M. Kleinrock, for appellant.

      Gwendolyn Keyes Fleming, District Attorney, William T. Kemp III, Daniel J. Quinn, Assistant District Attorneys, for appellee.
   MlKELL, Chief Judge.

The Supreme Court granted certiorari in this case and, in Boykins v. State, reversed the judgment of this Court. Therefore, we vacate our earlier opinion and adopt the judgment of the Supreme Court as our own.

Judgment reversed.

Smith, P. J., and Adams, J., concur.

       290 Ga. 71 (717 SE2d 474) (2011).

        Boykins v. State, 307 Ga. App. 404 (705 SE2d 186) (2010).


text:
    A11A1685.
    SADAT-MOUSSAVI v. THE STATE.
    (721 SE2d 647)
   BARNES, Presiding Judge.

A jury found Mohammad Sadat-Moussavi guilty of six counts of aggravated assault, one count of pointing a firearm at another, one count of false imprisonment, one count of terroristic threats, two counts of aggravated battery, and one count of possession of a firearm during the commission of a felony. On appeal from the denial of his motion for new trial, he contends that the trial court abused its discretion in failing to strike a prospective juror for cause. We disagree and affirm.

The record reflects that after reading the bill of indictment to the prospective jurors, the trial court asked the statutory voir dire questions set out in OCGA § 15-12-164 (a). Juror No. 28 gave an affirmative response to the statutory question regarding whether any of the prospective jurors had any prejudice or bias either for or against the accused. See OCGA § 15-12-164 (a) (2).

During individual voir dire, the prosecutor asked Juror No. 28 why she had indicated that she was prejudiced or biased. Juror No. 28 replied, “After you read the counts, what was in them, I just feel like if you had the gun and someone was shot, how could you say you are not guilty.” The prosecutor responded by explaining that the indictment was “just allegations” and that the State had the burden to prove those allegations beyond a reasonable doubt. The prosecutor then asked the juror whether she still felt that she was biased, and Juror No. 28 responded, “Yeah. Because — I mean, they said it was robbery and he had a weapon. I mean, he had the weapon, the guy was shot. Yes, you have to prove it. But the facts are still there as far as I know from what she read that he had a weapon and the person was shot.” The prosecutor then reiterated that “the indictment itself is just allegations, there are no facts” and asked whether, “Lgjiven that, do you feel that you could listen to the evidence that will come from that stand and render a verdict?” Juror No. 28 answered, “Yes.”

When subsequently asked by defense counsel whether, in the juror’s mind, the defendant “would have to show to you that he was not guilty,” Juror No. 28 responded, “He would have to show me.” Thereafter, defense counsel asked, “You’ve already been convinced from what you’ve heard that he’s guilty?” Juror No. 28 answered, “Yes. He has to prove he’s not guilty.”

However, the prosecutor then followed up by asking, “If the judge were to tell you that the defendant does not have to prove anything [and] that the State has to prove everything, would you still hold the defendant to the burden of proving. . . .” Juror No. 28 responded, “If you can’t prove it, then he wouldn’t be guilty.” The prosecutor replied, “Exactly. And if the judge were to tell you that the defendant is under no obligation to prove anything, that the State must prove the case, do you still maintain that bias?” Juror No. 28 answered, “No.”

Following this response, defense counsel asked, “So now you’re saying that the defendant doesn’t have to prove anything?” Juror No. 28 responded, “Because it’s on the State to prove it she said. So I have to listen to what she has to say. I have to listen to what the State has to offer. I didn’t know he doesn’t have to say anything.” Defense counsel then asked, “So at this point in time, do you feel that you can be a fair and impartial juror to both sides?” Juror No. 28 replied, “Yes. . . . Because of the way she explained it, they have to prove it.”

Defense counsel moved for Juror No. 28 to be disqualified for cause on the ground that she was prejudiced and biased against the defendant. The trial court denied the motion. Defense counsel subsequently exercised a peremptory strike to excuse Juror No. 28.

On appeal, Sadat-Moussavi contends that in light of the colloquy involving Juror No. 28, it is clear that the prospective juror was biased against him and would have required him to prove his own innocence. Consequently, he maintains that the trial court erred in denying his motion to disqualify Juror No. 28 for cause. We are unpersuaded.

Decided December 27, 2011.

Kenneth D. Kondritzer, for appellant.

In order to disqualify a juror for cause, it must be established that the juror’s opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence. Whether to strike a juror for cause lies within the discretion of the trial court.

(Citations and punctuation omitted.) Carter v. State, 252 Ga. 502, 506 (8) (315 SE2d 646) (1984).

Here, Juror No. 28 initially indicated that she believed that the defendant was guilty in light of the indictment and that he would have to prove his own innocence. But once the prosecutor fully explained to Juror No. 28 that the indictment contained “just allegations,” that the State had to prove the allegations in the indictment beyond a reasonable doubt, and that the defendant was “under no obligation to prove anything,” the juror indicated that she was no longer confused and could be fair and impartial between the State and the defendant. Thus, the record reflects that Juror No. 28 altered her initial position and expressed the ability to remain fair and impartial once she had a better understanding of the indictment and of the allocation of the burden of proof.

Given this record, the trial court acted within its discretion in denying the motion to excuse Juror No. 28 for cause. “It is not isolated responses, but the ‘final distillation’ of a prospective juror’s voir dire which determines whether a juror is qualified to serve.” (Citation and punctuation omitted.) Ramirez v. State, 279 Ga. 569, 573 (3) (619 SE2d 668) (2005). See Thorpe v. State, 285 Ga. 604, 606 (3) (678 SE2d 913) (2009) (noting that “[wjhether or not a prospective juror is qualified must be determined based on a consideration of the voir dire as a whole”). It follows that “[t]he trial court was not compelled to rely only upon [Juror No. 28’s] initial expression of a potentially disqualifying belief, rather than her subsequent qualifying answers.” Bishop v. State, 268 Ga. 286, 289 (5) (486 SE2d 887) (1997). We therefore defer to the trial court’s finding that Juror No. 28 was qualified to serve as a juror in this case. See O’Kelley v. State, 284 Ga. 758, 764 (2) (d) (670 SE2d 388) (2008); Raulerson v. State, 268 Ga. 623, 629-630 (4) (491 SE2d 791) (1997); Bishop, 268 Ga. at 289 (5); Diaz v. State, 262 Ga. 750, 753 (2) (b) (425 SE2d 869) (1993); Carter, 252 Ga. at 506-507 (8).

Judgment affirmed.

Adams and Blackwell, JJ., concur.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.


text:
    A11A1939.
    CAMPBELL v. THE STATE.
    (721 SE2d 649)
   BARNES, Presiding Judge.

A jury convicted Gregory Louis Campbell of driving under the influence of drugs to the extent that it was less safe to drive (“DUI - less safe”), possession of marijuana, speeding, and failure to change the address on his driver’s license. The trial court denied his motion for new trial. Proceeding pro se, Campbell contends on appeal that the trial court erred in denying his motion to suppress. For the reasons set forth below, we affirm.

In reviewing a trial court’s decision on a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous. Further, because the trial court is the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them. However, when evidence is uncon-troverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Punctuation and footnotes omitted.) Hammont v. State, 309 Ga. App. 395, 396 (710 SE2d 598) (2011). Moreover, “we may consider trial testimony in addition to the testimony submitted during the motion to suppress hearing.” (Citation omitted.) Davis v. State, 304 Ga. App. 355, 356 (1) (696 SE2d 381) (2010).

Viewed in the light most favorable to the trial court’s ruling, the record shows that at around midnight on February 4, 2009, an officer with the City of Woodstock Police Department was conducting speed enforcement along Interstate 92 in Cherokee County. Using a laser speed detection device, the officer measured the speed of the vehicle driven by Campbell at 63 miles per hour. The posted speed limit was 45 miles per hour.

The officer initiated a traffic stop of Campbell’s vehicle for speeding. When the officer subsequently approached Campbell’s vehicle, he smelled what he believed in light of his training and experience was the “faint odor of burnt marijuana” emanating from inside the vehicle. The officer requested that Campbell and the front seat passenger produce their driver’s licenses for examination, and both of them complied. When the officer asked Campbell if the address on his license was correct, he responded that the address was incorrect. Campbell further noted that he had lived at a different address for approximately one year. The officer also asked Campbell if there was anything in the vehicle “that [the officer] needed to be concerned about” such as “guns, knives, drugs, or bombs,” and he responded, “nothing you need to be concerned about.”

The officer returned to his patrol car and radioed for assistance in light of his observations and conversation with Campbell. As the officer ran a check on Campbell and his passenger’s licenses, he noticed that Campbell appeared to be moving around in his vehicle as if he was “either moving something or try[ing] to conceal something in the back seat.” A second officer arrived at the scene as backup, and he likewise observed that Campbell was moving around in his seat in a suspicious manner.

At that point, the first officer returned to the vehicle and directed Campbell to step outside onto the road, where the officer conducted a pat-down search for weapons. Campbell’s eyes were bloodshot, but he denied having drunk any alcohol. The officer also could smell the odor of marijuana on Campbell’s person, and he asked Campbell how much marijuana he had smoked. Campbell admitted that he had smoked part of a “blunt” about an hour before.

The first officer then administered a series of field sobriety tests, including the walk-and-turn test, the one-leg-stand test, and the eye convergence test. On the walk-and-turn test, Campbell exhibited five clues of impairment. He exhibited three clues of impairment on the one-leg-stand test, after which Campbell told the officer, “You got me.” During the eye convergence test, Campbell’s left eye could not maintain contact with the stimulus and drifted away, likewise indicating impairment.

After administering the field sobriety tests, the first officer arrested Campbell for DUI - less safe. According to the officer, he arrested Campbell based upon the totality of the circumstances, including that he was speeding, admitted to smoking marijuana, had the smell of marijuana on his person, and exhibited multiple clues of impairment during several of the field sobriety tests.

Decided December 27, 2011

After being placed under arrest, a substance that later tested positive as marijuana and weighing 0.3 grams was seized from Campbell’s right shoe. Campbell also was read the implied consent notice and agreed to take a State-administered blood test. The blood sample thereafter taken from Campbell at the hospital tested positive for THC metabolite, which was indicative of marijuana use.

Because Campbell filed this appeal pro se, we will construe his brief liberally. See Beasley v. State, 255 Ga. App. 522 (566 SE2d 333) (2002). Construed in this manner, Campbell argues that there was no probable cause justifying his arrest and that, as a result, the trial court should have excluded the results of his State-administered blood test and other evidence obtained after his arrest. His argument lacks merit.

In determining whether sufficient probable cause existed, “[t]he material inquiry is whether the facts within the [officer’s] knowledge at the time of the arrest constituted reasonably trustworthy information sufficient to authorize a prudent person to believe that [Campbell] had committed that offense.” (Citation and punctuation omitted.) Pinch v. State, 265 Ga. App. 1, 4 (2) (593 SE2d 1) (2003). “Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction.” (Citation and punctuation omitted.) Norman v. State, 214 Ga. App. 408, 409 (448 SE2d 219) (1994).

Here, Campbell was observed speeding, admitted to smoking marijuana, had the smell of marijuana on his person, had bloodshot eyes, and exhibited multiple clues of impairment during several of the field sobriety tests. In light of these combined circumstances, the arresting officer clearly had sufficient probable cause to arrest Campbell for DUI - less safe. See, e.g., Albert v. State, 236 Ga. App. 146, 149-150 (2) (511 SE2d 244) (1999), overruled in part on other grounds, Baker v. State, 252 Ga. App. 695, 702 (1) (556 SE2d 892) (2001); State v. Sumlin, 224 Ga. App. 205, 208 (4) (480 SE2d 260) (1997); Knox v. State, 216 Ga. App. 90, 90-91 (1) (453 SE2d 120) (1995). Accordingly, the trial court committed no error in denying Campbell’s motion to suppress.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

Gregory L. Campbell, pro se.

David L. Cannon, Jr., Solicitor-General, Barry W. Hixson, David M. McElyea, Assistant Solicitors-General, appellee.

         Campbell also claims that the trial court lacked subject matter and personal jurisdiction over him and that his trial counsel was ineffective for failing to raise these jurisdictional issues. These claims are without merit.

       The first officer also administered the horizontal gaze nystagmus test and the Romberg test, but Campbell did not exhibit any clues of impairment on those tests. The officer noted that based upon his training and experience, a person who has smoked marijuana will not exhibit any clues of impairment on the horizontal gaze nystagmus test unless the marijuana is “laced” with another substance such as PCE

       Campbell’s request for an extension of time to file an amended brief is hereby denied. We likewise deny the State’s motion to dismiss this appeal.


text:
    A11A2055.
    FULTON COUNTY BOARD OF TAX ASSESSORS v. LM ATLANTA AIRPORT, LLC.
    (721 SE2d 640)
   BARNES, Presiding Judge.

The Fulton County Board of Tax Assessors (the “Board”) appeals from the superior court’s order awarding attorney fees and costs to LM Atlanta Airport, LLC in litigation over the valuation of commercial property for ad valorem tax purposes. The Board does not dispute the amount of attorney fees and costs that were awarded by the superior court. Rather, the Board argues that the superior court was without authority to award attorney fees and costs under OCGA § 48-5-311 (g) (4) (B) (ii). We disagree and affirm.

The record reflects that the property at issue is located near the Hartsfield-Jackson Atlanta International Airport in Fulton County and contains a full-service hotel with approximately 500 rooms. The property consists of two tax parcels that are operated jointly and are currently owned by LM Atlanta Airport, LLC. LM Atlanta appealed the Board’s valuation of the property for tax years 2009 and 2010. Only the 2010 tax appeal is the subject of this appeal, although the 2009 tax appeal is relevant to the analysis of the specific issues raised by the parties.

The 2009 Tax Appeal. In 2009, the Board appraised the property as having a fair market value of $34,937,700. LM Atlanta appealed the valuation to the Fulton County Board of Equalization, which reduced the appraised value to $21,034,000. Pursuant to OCGA § 48-5-311 (g), LM Atlanta then appealed the $21,034,000 valuation by the Board of Equalization to the Superior Court of Fulton County, alleging incorrect valuation of the subject property and non-uniform assessment.

The 2010 Tax Appeal. In 2010, while the 2009 tax appeal remained pending, the Board once again appraised the property as having a fair market value of $34,937,700, despite the fact that the Board of Equalization had recently reduced the value for the property in the 2009 tax appeal. LM Atlanta appealed the 2010 appraisal to the Board of Equalization, which reduced the appraised value to $21,034,000 consistent with its valuation for the prior year. As in the 2009 tax appeal, LM Atlanta then appealed the $21,034,000 valuation to the Superior Court of Fulton County in accordance with OCGA § 48-5-311 (g). In its notice of appeal to the superior court, LM Atlanta prayed for recovery of its reasonable attorney fees and the costs of litigation pursuant to OCGA § 48-5-311 (g) (4) (B) (ii).

The 2010 tax appeal was assigned to a different superior court judge than the 2009 tax appeal. The superior court judge in the 2010 tax appeal ordered the parties to mediation, but it proved unsuccessful. The parties engaged in discovery, and LM Atlanta retained an expert appraiser to value the property and incurred other expert witness expenses as the 2010 tax appeal moved forward.

Resolution of the 2009 Tax Appeal. Meanwhile, as the 2010 tax appeal was pending, the 2009 tax appeal was tried in a bench trial before the superior court in March 2011. Following the bench trial, the superior court entered a final order finding that the fair market value of the property was $6,362,733 (the “2009 Final Order”). The 2009 Final Order provided that the parties would bear their own attorney fees. Neither party appealed the 2009 Final Order.

Resolution of the 2010 Tax Appeal. Following entry of the 2009 Final Order, the Board conceded that, pursuant to OCGA § 48-5-299 (c), the fair market value of the property for tax year 2010 was $6,362,733 by operation of law. OCGA § 48-5-299 (c) provides that the Board may not change for the “next two successive years,” absent certain specific circumstances not applicable here, “the valuation established or decision rendered in an appeal to the board of equalization or superior court.” The Board and LM Atlanta agreed that the 2009 tax appeal set the value of the property for purposes of OCGA § 48-5-299 (c), such that the tax years 2010 and 2011 were the “next two successive years” during which the value could not be changed by the Board.

However, the parties were unable to agree on how to dispose of the 2010 tax appeal or on the issue of attorney fees and costs. Specifically, LM Atlanta asked the superior court to enter a final order disposing of the case and moved for an award of reasonable attorney fees and the costs of litigation pursuant to OCGA § 48-5-311 (g) (4) (B) (ii). That statutory subsection provides in relevant part that “[i]f the final determination of value on appeal is 80 percent or less of the valuation set by the county board of equalization or hearing officer as to commercial property, . . . the taxpayer[ ] . . . shall recover costs of litigation and reasonable attorney’s fees incurred in the action.” OCGA § 48-5-311 (g) (4) (B) (ii).

In contrast to LM Atlanta, the Board argued that a final order was unnecessary given that the value of the property for tax year 2010 had been set by operation of law by OCGA § 48-5-299 (c). The Board further argued that because the value of the property had been set by operation of law, there could be no independent “final determination of value” in the 2010 tax appeal that would authorize an award of attorney fees and costs under OCGA § 48-5-311 (g) (4) (B) (ii). Consequently, the Board moved to dismiss LM Atlanta’s motion for attorney fees and the costs of litigation.

Rejecting the Board’s argument, the superior court entered a final order in the 2010 tax appeal concluding that the fair market value of the property was $6,362,733 as a matter of law pursuant to OCGA § 48-5-299 (c), denied the Board’s motion to dismiss, and awarded LM Atlanta attorney fees and costs under OCGA § 48-5-311 (g) (4) (B) (ii) (the “2010 Final Order”). The Board now appeals the award of attorney fees and costs contained in the 2010 Final Order.

We conclude that the trial court committed no error in awarding attorney fees and costs to LM Atlanta. “OCGA § 48-5-311 (g) governs the method by which a taxpayer or county board of tax assessors may appeal a decision of the county board of equalization to the superior court of the county in which the land lies.” Clayton County Bd. of Tax Assessors v. City of Atlanta, 299 Ga. App. 233 (682 SE2d 328) (2009). And, in the context of tax appeals under that subsection, OCGA § 48-5-311 (g) (4) (B) (ii) mandates an award of reasonable attorney fees and the costs of litigation to a taxpayer owning commercial property where there has been a “final determination of value on appeal” and that value “is 80 percent or less of the valuation set by the county board of equalization or hearing officer.”

The Board does not contest that the value of the property set forth in the 2010 Final Order was less than 80 percent of the value set by the Board of Equalization. Instead, the Board argues that OCGA § 48-5-311 (g) (4) (B) (ii) does not apply because there has been no “final determination of value” which would entitle LM Atlanta to attorney fees and costs in the 2010 tax appeal. In this regard, the Board argues that pursuant to OCGA § 48-5-299 (c), the valuation of the property for 2010 was set by operation of law by the 2009 Final Order. According to the Board, there must be an independent “final determination of value” in order for attorney fees and costs to be authorized, and a valuation of the property predicated upon OCGA § 48-5-299 (c) does not meet that requirement. The Board thus asserts that the superior court’s award of attorney fees and costs in the 2010 tax appeal was not statutorily authorized.

We are unpersuaded. The Board’s contention is controlled directly and adversely to it by our decision in Fulton County Bd. of Tax Assessors v. Lamb, 298 Ga. App. 618, 620-621 (680 SE2d 656) (2009). In Lamb, a taxpayer appealed the valuation of his property for tax year 2002, and that appeal was resolved by a consent order entered in the superior court. Id. at 619-620. In 2004, the Board increased the valuation of the property, and the taxpayer ultimately appealed to the superior court after the Fulton County Board of Equalization likewise held that the value of the property had increased. Id. at 619. However, on the first day of trial in the 2004 tax appeal, the Board for the first time stipulated that, pursuant to OCGA § 48-5-299 (c), the value of the property in 2004 was the valuation reflected in the 2002 consent order by operation of law, and the jury was discharged. Id.

The superior court in Lamb subsequently held a hearing on attorney fees and costs and awarded them to the taxpayer pursuant to OCGA § 48-5-311 (g) (4) (B) (ii). Lamb, 298 Ga. App. at 620. The court reasoned that OCGA § 48-5-299 (c) did not preclude an award of attorney fees and costs under OCGA § 48-5-311 (g) (4) (B) (ii) because the 2004 tax appeal “got litigated” and the taxpayer had incurred significant expenses in litigating the case before the Board ultimately agreed that the value of the property was controlled by OCGA § 48-5-299 (c). Id.

On appeal to this court in Lamb, the Board argued that the value of the taxpayer’s property in 2004 was the same as the value set by the 2002 consent order pursuant to OCGA § 48-5-299 (c), and, therefore, that there had been no new “final determination of value” in the 2004 tax appeal. Id. at 618-619. As such, the Board argued that attorney fees and costs were not authorized under OCGA § 48-5-311 (g) (4) (B) (ii). We rejected the Board’s argument, holding that “[njothing in [OCGA § 48-5-311 (g) (4) (B) (ii)] preclude[d] its application to appeals involving OCGA § 48-5-299 (c)” and that the superior court’s reasoning for awarding attorney fees and costs was sound. Id. at 620.

The situation in the present case is materially similar to that of Lamb. As in that case, here there was a tax appeal in a prior year (the 2009 tax appeal) over the valuation of the taxpayer’s property that was resolved by entry of an order in the superior court (the 2009 Final Order). The tax year in the current case (the 2010 tax appeal) is within two years of the tax year in that prior appeal, leading the Board ultimately to concede that OCGA § 48-5-299 (c) applied and controlled the valuation of the property. But, as in Lamb, the taxpayer was compelled to file the current tax appeal to challenge an overvaluation of the property and to incur significant expenses in litigating that appeal, in the interim before the Board made its concession regarding the value of the property. Under these circumstances, the present case is controlled by Lamb, and the trial court thus committed no error in awarding attorney fees and costs pursuant to OCGA § 48-5-311 (g) (4) (B) (ii).

Decided December 27, 2011.

Turner & Ross, William R. Turner, Valerie A. Ross, for appellant.

Freeman, Mathis & Gary, Jack R. Hancock, Michelle Y. Terry, for appellee.

In arguing for a different result, the Board relies upon Mundell v. Chatham County Bd. of Tax Assessors, 280 Ga. App. 389 (634 SE2d 180) (2006). Yet, in Lamb, we expressly addressed Mundell and pointed out that it was distinguishable because “Ltjhe issue of attorney fees under OCGA § 48-5-311 (g) (4) (B) (ii) was not before us” in that case. Lamb, 298 Ga. App. at 621. Accordingly, the Board’s reliance on Mundell is misplaced and affords no basis for reversal.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       OCGA § 48-5-299 (c) provides in part:
      Real property, the value of which was established by an appeal in any year, that has not been returned by the taxpayer at a different value during the next two successive years, may not be changed by the board of tax assessors during such two years for the sole purpose of changing the valuation established or decision rendered in an appeal to the board of equalization or superior court. . . .