author: Phipps, Presiding Judge.

text:
    A10A2072.
    DAVIS v. THE STATE.
    (706 SE2d 710)
   Phipps, Presiding Judge.

Michael Leonard Davis was convicted of burglary, aggravated assault, and misdemeanor obstruction of an officer. He contends that the evidence was insufficient and that a variance between the allegata and the probata was fatal. Davis also contends that the trial court erred by refusing to give his requested charge on impeachment, denying his motion for a mistrial, and denying his motion for a new trial based upon his claim of ineffective assistance of counsel. Because Davis has shown no reversible error, we affirm.

1. When an appellant challenges the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

The events underlying this case began at a house with street address “308 Alder Street.” Ricky Hill was renting the house, where he and his family had lived until a fire damaged the upstairs level in July 2007. Because Hill continued to pay rent, store almost all of the family’s belongings inside the house, and receive his mail there, he checked on the house each day.

When he drove to the property at about noon on September 19, 2007, it was immediately apparent to him that someone had opened an exterior door. Hill went into the house and found a man, who dove out a bedroom window and fled on foot. Hill exited the same window and chased the man. Hill noted that the man had anchored on his shoulders a red book bag that belonged to his (Hill’s) child. The man also was carrying a plastic bag, which he soon abandoned while trying to escape Hill.

When Hill was very close to catching the man, the man stopped, turned around, and “took a swing” at Hill, which “swing” Hill demonstrated at trial. Hill further recounted that he took a few steps backward, then brought up his hands and “got ready for the fight.” Hill testified, “[The man] looked at me like I was stupid and looked over towards his right hand. . . . He had a funny look on his face, so he looked over at his hand again; and I looked over to see what he kept looking at and he had a screwdriver in his hand.” The screwdriver was seven to eight inches long. At that point, Hill retreated backward, and the man began to flee. Hill “stayed behind him . . . without getting too close” because he was concerned that the man had a screwdriver. Meanwhile, Hill used his cell phone to report the burglary to police, describing further the location of his ongoing foot pursuit of the perpetrator, as well as the perpetrator’s gender, race, and clothing.

Within about 15 minutes of the start of the foot chase, a POST-certified investigator with the City of Tifton Police Department arrived in the area in response to a dispatch report. The investigator immediately noted a man who matched the description in the lookout report, including having in his possession a red bag. Hill pointed the investigator to the man as the perpetrator. In addition, onlookers in the area began pointing at the man, shouting that he was the one who had been chased. The investigator, who was not in full uniform, but was wearing a badge and his sidearm, stopped his car in the middle of the street, activated its strobe lights, identified himself to the man as “Police,” and commanded the man to put the red bag down and to show his hands.

The man, Hill testified at trial, was “completely defiant,” persistently denying that he had done anything wrong. Similarly, the investigator testified that the man turned his body toward him in an aggressive stance, became “very loud and aggressive” with him, and demanded that the officer tell him what he wanted with him. The investigator ordered the man to “get down”; the man did not. The investigator noted that the man kept his left hand near the red bag that was on his left side. Recalling information supplied in the lookout report that the suspect might be armed, the investigator drew his gun and again ordered the man to put his hands in the air. The man disregarded the order and continued to be loud and argumentative. Soon thereafter, approaching sirens could be heard; the man moved his hand away from the red bag; and the investigator returned his gun to its holster. The investigator seized the opportunity to grab the man and put him on the hood of his police car for handcuffing. The man continued to be verbally argumentative and repeatedly tried to snatch his arms free of the investigator’s grasp. Finally, with the help of backup officers who arrived, the investigator was able to handcuff the man.

After the man was arrested, Hill traced the path taken back to the house. Along the way, he found various articles that belonged to him. At trial, Hill identified Davis as the man he had found in his house and pursued until the police caught and arrested him.

Davis elected not to testify and not to call any witnesses. However, his lawyer advised the court that the defense wanted to present to the jurors, for impeachment purposes, a video recording of Hill’s statement to the police on the date of the incident. Defense counsel did not seek to redact any portion of the video recording, and the prosecutor announced that the state had no objection to playing the entire video recording. Immediately before the defense played the recording for the jurors, the trial court informed them, “[T]he parties have stipulated and agreed to exhibit to you an interview that was conducted on [the date of the incident] at the police department.” The video recording showed Hill describing and demonstrating his encounter with Davis, including Davis fleeing the house and then taking a swing at Hill with a screwdriver in his hand.

(a) Burglary is committed

when, without authority and with the intent to commit a felony or theft therein, [a person] enters or remains within the dwelling house of another or any building ... or other such structure designed for use as the dwelling of another or enters or remains within any other building ... or any room or any part thereof.

The indictment alleged that Davis committed that offense by entering “the dwelling house of James Ricky Hill without authority, located at 308 Alder Street, Tifton, Tift County, with the intent to commit a theft therein.”

(i) Davis argues that there was no proof that the structure at issue was a “dwelling house” because Hill was no longer living there. This argument is controlled adversely to Davis by cases such as Waldrop v. State and Sanders v. State. As recognized therein, Georgia’s burglary statute is very broad and “does not limit its application to buildings of any particular type or in any particular condition.” Here, the evidence showed the house at issue to be a building under the burglary statute. And in the final charge to the jury, the trial court instructed that the burglary statute proscribed unauthorized entry into or remaining in “any building or dwelling place of another.”

Davis argues that the house at issue here did not fall within the term “building” under the burglary statute, asserting that it was not sufficiently enclosed and secured. Citing Redfern v. State, Davis points to evidence that Hill and his family had moved out due to fire damage, a window was broken out, and prior to the date of the incident, the house had been broken into on several occasions. Davis’s reliance upon Redfern is misplaced because that case, which determined that a 2,000-foot-high broadcast tower did not fall within the broad meaning given to the term “building” under the burglary statute, is factually inapposite. Here, the evidence showed that the damage caused by the fire was primarily on the upper floor. And while Hill and his family had moved out, Hill nevertheless had continued to pay rent, continued to store most of their belongings there, and checked each day that the house remained locked. There is no merit in Davis’s argument.

(ii) Davis also argues that there was no showing that he was not authorized to enter the structure, because the property owner (Hill’s landlord) did not testify. Given that Hill was still paying rent to the property owner, still storing his belongings there, and still receiving mail there, his testimony that Davis was not authorized to be in the house was sufficient to show that Davis’s entry was “without authority.”

(b) Aggravated assault is committed when a person “assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Simple assault is committed when a person, inter alia, “[cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” The indictment alleged that Davis “did make an assault upon the person of James Ricky Hill, with a screwdriver, which when used offensively against a person is likely to or actually does result in serious bodily injury.”

Davis argues that the evidence showed that he was merely holding the screwdriver, rather than using it to attack or threaten Hill. He also argues that there was insufficient proof that Hill was placed in reasonable apprehension of receiving a violent injury, given Hill’s continued pursuit of him despite knowing about the screwdriver.

The jury was not required to view the evidence as Davis urges. Here, the evidence showed that Davis had a seven- to eight-inch-iong screwdriver in his hand; that he “took a swing” at Hill when Hill caught up to him; that Hill assumed a fighting stance until he noticed the screwdriver; that Hill then immediately retreated; and that Hill did not thereafter try to personally apprehend Davis, but opted to call the police and only trail Hill while keeping a safe distance. Viewed in the light most favorable to the prosecution, the evidence showed aggravated assault. Davis’s reliance upon Nichols v. State is misplaced.

(c) Misdemeanor obstruction is committed when “a person . . . knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties.” The indictment alleged that Davis “did knowingly and willfully obstruct and hinder [the police investigator], a law enforcement officer in the lawful discharge of said officer’s official duties by struggling with said officer and resisting arrest.”

(i) Davis argues that there was insufficient proof that the investigator was in the lawful discharge of any official duty, asserting that the investigator had no reason to believe that he was committing any crime when he sought to subdue him. Davis cites Wynn v. State, which stated:

[A]n officer is not within the lawful discharge of his official duties when he approaches and questions an individual without specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Where circumstances do not provide an officer with articulable suspicion (less than probable cause, but greater than mere caprice) that the law has been or is about to be violated, the officer’s act of detaining and questioning an individual is nothing more than a police-citizen encounter outside the scope of the officer’s “official” police duties.

The investigator’s encounter with Davis stemmed from a lookout bulletin. “A stop pursuant to a lookout requires only specific and articulable facts which, together with rational inferences drawn therefrom, reasonably warrant the intrusion.” Here, the investigator had ample specific and articulable facts to justify the stop. Minutes after having heard the lookout bulletin, the investigator arrived at the scene to discover a man there matching the description provided in the lookout bulletin, including having a red bag in his possession. Hill pointed to the man as the perpetrator, and gathered onlookers were shouting as they pointed the investigator to Davis. These circumstances were sufficient to give rise to a reasonable suspicion of criminal conduct, and there is no merit in Davis’s claim that the investigator nevertheless “should have spoken with the witnesses first to guarantee that [he] was the suspect in question.”

(ii) Davis asserts that his conduct did not rise to the level of obstruction. Given the account above of Davis’s conduct in response to the officer’s commands and efforts, there is no merit to this assertion. Davis has misplaced his reliance upon inapposite cases.

2. Davis contends that there was a fatal variance between the allegata and probata. Specifically, Davis points out that the indictment alleged that he burglarized a “dwelling place,” whereas the evidence showed that Hill was no longer living there. Additionally, Davis points out (as we have noted above) that the court defined burglary in its final charge as committed “when a person enters or remains in any building or dwelling place of another.”

Pretermitting whether Davis waived this issue, Davis has shown no fatal variance.

We no longer adhere to an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance fatal.

Here, the burglary count of the indictment correctly specified the location of the building unlawfully entered and also accurately identified the date of the crime.

[These] allegations definitely informed [Davis] as to the charge! ) against him so as to enable him to present his defense and not to be taken by surprise. The allegations were further adequate to protect [Davis] against another prosecution for the same offense. The indictment’s description of the structure as a dwelling house as opposed to a building did not mislead [Davis] in such a manner that impeded his ability to present a subsequent defense or surprise him at trial, and he cannot be subjected to a subsequent prosecution for the burglary of the building in question. Thus, [Davis] has failed to show that any variance was fatal.

3. Davis contends that the trial court erred by refusing to declare a mistrial after the state made an improper closing argument. Davis points to the prosecutor’s remark that: “Mr. Davis is incredibly lucky to be drawing breath today because there are a lot of officers given the numbers of officers who are killed each and every year by folks doing just what Mr. Davis does —.”

This sentence was cut off by an objection, asserting that the remark was injecting improper, prejudicial commentary. The prosecutor countered that the statement was a reasonable inference from the investigator’s testimony that he had considered that Davis might have had a weapon, then adding, “it is more than proper for me to say there are police officers that are killed every year under similar circumstances.” The trial court overruled the objection, finding the complained-of remark was “sort of public knowledge.” However, the court cautioned the prosecutor to tender argument that was supported by the evidence. Thereupon, the prosecutor resumed the argument as to that issue, but only by repeating that Davis was lucky to be alive and adding that Hill was also lucky to be alive in light of evidence of Davis’s aggravated assault upon him. From there, the prosecutor turned to a wholly different topic.

Davis argues that the prosecutor exceeded the wide latitude afforded counsel during closing argument because there was no evidence that he was attempting to kill any of the officers involved in this case and therefore the remark referencing unknown instances where officers had been killed in the line of duty was improper. However, the prosecutor’s remarks did not go so far as to insinuate that Davis had attempted to kill any of the officers that day. And, the remarks did relate, in part, to Davis’s obviously precarious situation given the investigator’s response to his encounter with Davis, namely, drawing his gun. Moreover, after being cautioned by the trial court that the wide latitude afforded counsel during closing argument was not boundless, the prosecutor did not revisit the point concerning police officers, but turned to the more narrow encounter between Davis and Hill involving the screwdriver, which gave rise to the aggravated assault count.

“When prejudicial matter is improperly presented to the jury, a mistrial is appropriate if it is essential to preserve the defendant’s right to a fair trial.” A trial court’s decision not to grant a mistrial based on a prosecutor’s improper remarks will not be disturbed on appeal absent a manifest abuse of discretion. Here, consideration of the entire record satisfies us that the prosecutor’s remarks did not deprive Davis of a fair trial. Denial of his motion for a mistrial was no abuse of discretion.

4. Davis contends that the trial court erred by refusing to give his requested charge on impeachment in its entirety.

“[A]n instruction on impeachment must be read in conjunction with the entire jury instruction and provides no cause for reversal if the court’s instruction in its entirety makes it plain that the jury is the sole judge of witness credibility.” In the instant case, the court’s final charge plainly explained that matters of witness credibility were exclusively within the jury’s province. Because the final charge, taken as a whole, fully and adequately informed the jurors of the correct legal principles concerning credibility and impeachment, we find no basis for reversal.

5. Davis contends that the trial court erred by rejecting his claim of ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel,

a defendant must establish, pursuant to Strickland v. Washington, that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. ... In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review a trial court’s legal conclusions de novo.

We need not address both components of the Strickland test if the showing on one is insufficient, nor must we address the components in any particular order.

Specifically, Davis argues that his trial counsel erred by failing to request charges on simple battery and simple assault as lesser included offenses of the charged crime of aggravated assault.

(a) Simple battery is committed when a person “either: (1) [i]ntentionally makes physical contact of an insulting or provoking nature with the person of another, or (2) [¿Intentionally causes physical harm to another.” As Davis concedes, there was no evidence that Davis made physical contact with Hill or caused physical harm to him. Where, as here, “the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” Davis has failed to demonstrate that his trial counsel erred.

(b) Simple assault is committed when a person “either: (1) [ajttempts to commit a violent injury to the person of another; or (2) [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” As set forth above, the indictment alleged the latter manner only and stated that the assault was aggravated because it was committed with a screwdriver. Davis argues that the evidence allowed for a finding that the screwdriver was not “used offensively against [Hill]” as contemplated by the aggravated assault statute. Therefore, Davis claims, the jury should have been instructed on simple assault as a lesser included offense. “Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.”

But there was no evidence in this case showing that Davis committed merely simple assault. Instead, the evidence was uncon-troverted that, when Davis “took a swing” at Hill, Davis was holding the screwdriver in the same hand. Hill demonstrated during direct examination Davis’s actions in taking the “swing.” And when Davis’s lawyer revisited that demonstration, she asked, “Now you got off the stand and you showed the jury how it was Mr. Davis came at you with a screwdriver?” Hill responded, “Yes.” While the lawyer’s question did not constitute evidence, Hill’s response thereto did. Moreover, the evidence showed, after Davis “took a swing” at Hill with the screwdriver (as the latter demonstrated at trial, then testified that his demonstration showed how the former “came at [him] with the screwdriver”) and Hill realized what had happened, Hill immediately retreated out of his fighting stance and aborted his plan to personally apprehend Davis. In addition, the video recording presented by Davis showed Hill describing and demonstrating that Davis took a swing at him with a screwdriver in the same hand.

Decided February 17, 2011.

John G. Edwards, for appellant.

C. Paul Bowden, District Attorney, Kevin E. Hutto, Assistant District Attorney, for appellee.

The evidence thus showed that Davis’s assault upon Hill was “with a . . . [screwdriver]” within the purview of the aggravated assault statute. And where, as here, the “evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” It follows, then, that Davis’s trial counsel’s performance was not deficient by not requesting such a charge.

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

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

       See Knight v. State, 266 Ga. 47, 48 (2) (464 SE2d 201) (1995) (prior inconsistent statement of witness who takes the stand and is subject to cross-examination is admissible as substantive evidence).

       See generally id.; Overton v. State, 295 Ga. App. 223, 236-237 (5) (671 SE2d 507) (2008) (noting that prior statements may be admissible under the rule of completeness); Phillips v. State, 289 Ga. App. 281, 282 (2) (656 SE2d 905) (2008) (same).

       Davis raises no Confrontation Clause challenge to Hill’s out-of-court statement; indeed, “the Sixth Amendment’s Confrontation Clause is not implicated where the proponent of the hearsay is the defendant.” Al-Amin v. State, 278 Ga. 74, 89 (19), n. 12 (597 SE2d 332) (2004).

       OCGA § 16-7-1 (a).

       See Sanders v. State, 293 Ga. App. 534, 537 (2) (b) (667 SE2d 396) (2008) (noting that, for purposes of the burglary statute, “dwelling house” has been defined as a “residence or habitation of a person other than the defendant, where such person makes his abode”) (punctuation and footnote omitted).

       300 Ga. App. 281 (684 SE2d 417) (2009).

       Supra.

        Waldrop, supra at 283 (1) (citation and punctuation omitted); Sanders, supra at 537 (2) (b) (punctuation and footnote omitted); see In the Interest of J. B. M., 294 Ga. App. 545, 546 (1) (669 SE2d 523) (2008) (having incorporated the all-inclusive word “building,” the burglary statute has been interpreted as applying to “buildings of whatever kind”) (citation and punctuation omitted).

       See Sanders, supra (“house under construction which is so far completed as to be capable of providing shelter to people, animals, or property constitutes a building under (the burglary) statute”) (punctuation, footnote and emphasis omitted.).

       246 Ga. App. 572 (540 SE2d 701) (2000).

       Id. at 574-575.

       See Sanders, supra; In the Interest of J. B. M., supra.

       OCGA § 16-7-1; see Glaze v. State, 253 Ga. App. 349, 351 (559 SE2d 90) (2002) (testimony of renter is sufficient to prove lack of authority to enter a dwelling place).

       OCGA § 16-5-21 (a) (2).

       OCGA § 16-5-20 (a).

        See Mickens v. State, 277 Ga. 627, 629 (593 SE2d 350) (2004) (the jury determines the credibility of the witnesses and resolves evidentiary conflicts or inconsistencies).

       See Crane v. State, 297 Ga. App. 880, 883-884 (2) (678 SE2d 542) (2009) (aggravated assault shown, based on evidence that defendant confronted victim while holding a claw hammer and that victim defended himself with a baseball bat based on his fear that defendant was going to strike him, despite defendant’s argument that he had no intention of hitting victim with hammer and that the victim had attacked him); Lawson v. State, 275 Ga. App. 334, 338 (3) (620 SE2d 600) (2005) (aggravated assault shown, based on evidence that defendant entered store with a mask concealing his face, that he opened the cash drawer, that he attempted to wrangle a key from a clerk’s hand after she locked the cash drawer, that he made repeated demands for money, that he banged his hands on the register, and that he appeared to have been holding a gun, causing the clerk to retreat to the office in fear that he would shoot her); McSears v. State, 226 Ga. App. 90, 92 (3) (485 SE2d 589) (1997) (aggravated assault shown, based on evidence that defendant intentionally swung knife to scare victim).

       238 Ga. App. 412, 413-414 (2) (519 SE2d 20) (1999) (evidence insufficient to show aggravated assault, where the defendant never actually touched the knife or threatened the officer with it; at most, the evidence showed that defendant unsuccessfully reached for the knife and briefly struggled with officer over it).

       OCGA § 16-10-24 (a).

       236 Ga. App. 98 (511 SE2d 201) (1999).

       Id. at 99 (2) (citations, punctuation and emphasis omitted).

        In the Interest of B. K. M., 247 Ga. App. 588, 590 (544 SE2d 504) (2001) (citation omitted); see Bright v. State, 265 Ga. 265, 279 (5) (a) (455 SE2d 37) (1995).

         See Overand v. State, 240 Ga. App. 682, 683 (1) (523 SE2d 610) (1999); see also Burgess v. State, 290 Ga. App. 24, 27 (658 SE2d 809) (2008).

       (Emphasis supplied.)

       See. e.g., Coley v. State, 178 Ga. App. 668, 669 (344 SE2d 490) (1986) (defendant’s mere failure to immediately follow police orders was insufficient to show obstruction).

       See Webb v. State, 277 Ga. App. 355, 359 (2) (626 SE2d 545) (2006).

        Weeks v. State, 274 Ga. App. 122, 125 (1) (616 SE2d 852) (2005) (citation, punctuation and footnote omitted).

        Sanders, supra at 538 (2) (c) (footnote omitted); see Weeks, supra at 125-126; Edward v. State, 261 Ga. App. 57, 59 (2) (581 SE2d 691) (2003) (variance was not fatal where the indictment charged the correct address of the burglary, but may have misidentified the house’s owner).

        Brown v. State, 278 Ga. 544, 548 (7) (604 SE2d 503) (2004) (citation omitted).

        Byrum v. State, 282 Ga. 608, 613 (10) (652 SE2d 557) (2007).

       See Williams v. State, 172 Ga. App. 682 (324 SE2d 544) (1984) (although prosecutor’s closing argument remarks — mentioning instances wherein law enforcement officials had been killed while attempting to effect arrest and adding that “(b)ut for the grace of God,” appellant would have been on trial for just such an offense — were irrelevant and improper, trial court’s refusal to declare a mistrial was not reversible error); see generally Stafford v. State, 271 Ga. 620, 622-623 (7) (523 SE2d 307) (1999) (even assuming that matter presented to jury improperly placed defendant’s character in issue, trial court did not abuse its discretion in denying motion for mistrial, where it was not apparent that a mistrial was necessary to preserve defendant’s right to a fair trial).

       See Byrum, supra; Stafford, supra; Williams, supra.

        Berry v. State, 267 Ga. 476, 480 (4) (c) (480 SE2d 32) (1997); see Morris v. State, 239 Ga. App. 100, 104 (6) (520 SE2d 485) (1999).

       See Berry, supra; Morris, supra.

       See Sharpe v. State, 272 Ga. 684, 688-689 (6) (531 SE2d 84) (2000) (final charge, as a whole, must be considered in assessing whether alleged error therein is reversible); see also Berry, supra; Morris, supra.

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Espinosa v. State, 285 Ga. App. 69, 72 (2) (645 SE2d 529) (2007) (footnotes omitted).

        Turner v. State, 253 Ga. App. 760, 763 (6) (560 SE2d 539) (2002).

       OCGA § 16-5-23 (a).

        Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994) (citation and emphasis omitted).

       OCGA § 16-5-20 (a).

       See Division 1 (b), supra.

       OCGA § 16-5-21 (a) (2).

        Edwards, supra.

       Id. (citation and emphasis omitted).

       See Strickland, supra.


source: Caselaw Access Project

author: Ellington, Chief Judge.

license: Public Domain

text:
    A10A2140.
    FREEMAN v. EICHHOLZ.
    (705 SE2d 919)
   Ellington, Chief Judge.

Carolyn Freeman appeals from an order of the Superior Court of Chatham County which granted summary judgment to attorney Benjamin Sheftall Eichholz in this legal malpractice suit. The court concluded that Eichholz was entitled to summary judgment because Freeman could not prove, as a matter of law, that Eichholz’s negligence proximately caused her alleged harm. Specifically, the court found that, despite Eichholz’s failure to timely file an ante litem notice in Freeman’s underlying personal injury suit, Freeman could not recover in that suit for the injuries she sustained when, while visiting an inmate at the Wayne State Prison, the chair in which she sat collapsed. Freeman contends the court should have concluded that she was an invitee, and not a licensee, and that the prison violated its duty of ordinary care to her as an invitee. We agree that Freeman was an invitee. Nevertheless, we affirm the trial court’s grant of summary judgment because, regardless of Freeman’s status, the record supports the court’s finding that she could not have prevailed in the underlying suit and, thus, could not establish that her attorney proximately caused her alleged harm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiffs case. Our review of an appeal from summary judgment is de novo.

(Citations, punctuation and emphasis omitted.) Griffin v. Fowler, 260 Ga. App. 443, 444 (579 SE2d 848) (2003). So viewed, the record reveals the following relevant facts.

Wayne State Prison permits inmate visitation on weekends and holidays. On November 15, 2003, a regular visitation day, Freeman went to the prison to see a friend who was incarcerated there. Freeman had been to the designated visitation area at least 11 times before. After a corrections officer admitted Freeman to the visitation area, she walked to the table where her friend was to be seated, and she sat down in a chair provided by the prison. The chair collapsed, with the plastic back separating from the metal frame. Freeman fell to the floor and struck her head, and she was knocked unconscious by the blow. She suffered injuries to her neck, head, and back.

The chairs used by the prison are stackable. They have molded, one-piece “poly-shell” seats which are attached beneath the seat to a metal frame and chair legs. Freeman’s chair collapsed when the seat became detached from its frame. There is no competent evidence in the record establishing what caused the seat to become detached from its frame. Prison officials deposed that, on the day Freeman was injured, the prison had in place a procedure for inspecting the chairs in the designated visitation area. At the end of each visitation day, corrections officers inspected the chairs for contraband and for damage before they stacked the chairs and stored them in a closet. The officers had a duty to inspect and to make a report of any contraband found. If the officers discovered that a chair was damaged or defective, it was their standard practice to send it to the prison’s maintenance unit to be repaired or replaced. After the chairs were stored, they remained locked away, accessible only by the officers, until they were needed again.

When the chairs are removed from storage and set up for the next visitation day, corrections officers are present and supervise the staff and inmates who help set up the room for visitors. On the day Freeman was injured, three corrections officers were supervising visitation. There is no evidence that anyone saw a problem with the chair at issue nor is there any evidence to show that the chair had an obvious problem or may have been dangerous. Freeman also deposed that she saw nothing wrong with the chair before she sat on it. The officers deposed said they had no recollection or records of any other chair having collapsed in the visitation area.

On January 23, 2004, Freeman retained Eichholz to represent her in a personal injury suit against the State of Georgia and the Department of Corrections. It is undisputed that Eichholz failed to timely file the ante litem notice required by OCGA § 50-21-26. Consequently, Freeman’s lawsuit, which was filed by later-retained counsel, was dismissed with prejudice. On November 14, 2006, Freeman filed the instant legal malpractice suit. After a hearing, the Superior Court of Chatham County granted Eichholz’s motion for summary judgment, finding that Freeman failed to prove that, but for Eichholz’s negligence, she would have won a judgment in her favor on her underlying personal injury claim.

1. Freeman contends that the trial court erred in concluding that her status for the purpose of analyzing her underlying negligence claim was that of a licensee. We agree and hold, given the facts of this case, that Freeman was an invitee.

In a cause of action for negligence, Freeman bears the burden of establishing four essential elements:

(1) [a] legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiffs legally protected interest as a result of the alleged breach of the legal duty.

(Citation and punctuation omitted.) Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). See also Dixie Group v. Shaw Indus. Group, 303 Ga. App. 459, 466-467 (4) (693 SE2d 888) (2010). The legal duty of care owed by a landowner to a person coming upon the property varies and is fixed according to the legal status of the person entering the premises. See Jones v. Barrow, 304 Ga. App. 337, 338-339 (1) (696 SE2d 363) (2010); see also Jarrell u. JDC & Assoc., 296 Ga. App. 523, 524-525 (675 SE2d 278) (2009). A landowner owes the highest duty — the duty of ordinary care — to an invitee. OCGA § 51-3-1; Jarrell v. JDC & Assoc., 296 Ga. App. at 525. A landowner owes a lesser duty — to avoid causing wilful or wanton injury — to a licensee. OCGA § 51-3-2 (b); Jarrell v. JDC & Assoc., 296 Ga. App. at 525.

Whether an inmate’s visitor should be classified as an invitee or a licensee has not been addressed by Georgia’s appellate courts. An invitee is one who enters the premises for any lawful purpose “by express or implied invitation.” OCGA § 51-3-1. For an express or implied invitation to exist, a privity of interest must exist between the owner or occupier of the premises and the purported invitee. Epps v. Chattahoochee Brick Co., 140 Ga. App. 426, 427 (1) (231 SE2d 443) (1976).

The accepted test to determine whether one is an invitee or a licensee is whether the party coming onto the business premises had present business relations with the owner or occupier which would render his presence of mutual benefit to both, or whether his presence was for his own convenience, or was for business with one other than the owner or occupier.

(Citations omitted.) Moore-Sapp Investors v. Richards, 240 Ga. App. 798, 799 (1) (a) (522 SE2d 739) (1999); accord Anderson v. Cooper, 214 Ga. 164, 169 (104 SE2d 90) (1958) (courts should look for “real or supposed” benefits to landowner and purported invitee); Matlack v. Cobb Elec. Membership Corp., 289 Ga. App. 632, 634 (658 SE2d 137) (2008); Clark Atlanta Univ. v. Williams, 288 Ga. App. 180, 181 (654 SE2d 402) (2007). A licensee, on the other hand, is one whose visit is “merely for his own interests, convenience, or gratification.” OCGA § 51-3-2 (a) (3); Behforouz v. Vakil, 281 Ga. App. 603, 603-604 (636 SE2d 674) (2006).

In the instant case, the record supports a finding that both parties to the underlying litigation received benefits from prison visitation. That Freeman derived value from her visit is patent because it is something that she voluntarily sought. She traveled to the prison at least 11 times to see her friend. Although less obvious, the defendants benefitted from inmate visitation as well. The applicable Rules and Regulations of the State of Georgia provide that “[vjisiting is an inmate privilege[,] not a right. As such, some or all of an inmate’s visiting privileges may be suspended or revoked as a disciplinary measure^]” Ga. Comp. R. & Regs. r. 125-3-4-.01 (2010). Thus, an authorized visitor’s name may be removed from an inmate’s visitor list for violating prison rules. Ga. Comp. R. & Regs. r. 125-3-4-.02 (3) (2010). On the other hand, the warden may authorize “special visits ... for compassionate or other valid reasons” when the visitor is expected “to exert a salutary effect through their visit.” Ga. Comp. R. & Regs. r. 125-3-4-.02 (4) (2010). These rules reveal that inmate visitation is a tool that may be used to punish, to reward, or to rehabilitate. As such, visitation benefits prison officials and the state penal system. See Overton v. Bazzetta, 539 U. S. 126, 134 (II) (123 SC 2162, 156 LE2d 162) (2003) (“Withdrawing visitation privileges is a proper and even necessary management technique to induce compliance with the rules of inmate behavior.”).

That benefit is significant enough that Georgia’s Rules and Regulations require that “[e]ach correctional institution shall maintain a visiting area where inmates may visit with their authorized visitor. Toilet facilities shall be available for the visitors.” Ga. Comp. R. & Regs. r. 125-3-4-.04 (2010). Prison officials are required to notify authorized visitors when they have been removed from an inmate’s visitor list or when an inmate’s visitation privileges have been suspended “so that potential visitors may avoid the inconvenience and frustrations associated with an unproductive trip.” Ga. Comp. R. & Regs. r. 125-3-4-.03. Wayne State, the prison at issue in this case, held itself open to visitors, maintaining regular visitation hours. That the defendants in the under lying suit supported inmate visitation reveals that it was beneficial to them.

Thus, under the facts of this case, we hold that visitation between inmates and their authorized and properly admitted visitors benefits both the visitor and the defendants so that a “mutuality of benefit” exists sufficient to establish the requisite privity of interest. Applying the accepted test, we conclude that Freeman’s status in the underlying case was that of an invitee, and therefore, the trial court’s determination that Freeman was a licensee was erroneous.

2. Although we conclude that Freeman was an invitee, the trial court was nevertheless correct in concluding that Freeman failed to show that the defendants in the underlying suit breached the duty of ordinary care owed to her.

It is fundamental that, in a premises liability case, “[t]he true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner and not known to the person injured that a recovery is permitted.” (Citations, punctuation and emphasis omitted.) Ballard v. Southern Regional Med. Center, 216 Ga. App. 96, 97 (1) (453 SE2d 123) (1995).

It is undisputed that no prison employee or official had actual knowledge that the chair was defective. Freeman argues that the defendants in the underlying suit had constructive knowledge that the chair was defective because, if the corrections officers had properly inspected the chair, they would have discovered the defect. However, there is no evidence in the record establishing the nature of the alleged defect. Freeman deposed that she heard someone say that “the screws or something” attaching the chair to the frame may have come out, causing the chair to fall apart. And, a corrections officer deposed that, if the seat had become loose from its frame, it should have been taken out of service. Both Freeman and the corrections officer, however, were speculating about why the chair fell apart as neither actually observed any defect.

There is no evidence establishing exactly how the chair was defective, whether the defect was one which would be visible during an inspection, or how long the defect existed; thus, there is no logical foundation for arguing that such a defect should have been discovered during the prison’s inspection procedure. As we held in Ballard v. Southern Regional Med. Center, “there is no duty to discover a defect which is not manifested until the incident causing injury.” Id. at 98 (1). Consequently, there is no evidence from which a jury could infer that prison officials had constructive knowledge that the chair was defective. Because Freeman failed to produce evidence from which a jury could infer that the defendants in the underlying suit had superior knowledge of the hazard, the defendants would have been entitled to summary judgment. See id.

3. Because the evidence shows, as a matter of law, that Freeman would not have prevailed in the underlying negligence action, the trial court properly concluded that Freeman could not meet her burden of proving, as a matter of law, that her attorney’s negligence proximately caused the claimed harm in the instant legal malpractice action. As we have held, to

Decided February 17, 2011.

Warren R. Hinds, for appellant.

Oliver Maner, Patrick T. O ’Connor, Benjamin M. Perkins, Douglas E. Herman, for appellee.

prevail on a legal malpractice claim, a client must prove that (1) he employed the defendant attorney; (2) the attorney failed to exercise ordinary care, skill, and diligence; and (3) this failure was the proximate cause of damages to the client. To establish proximate cause, the client must show that but for the attorney’s error, the outcome would have been different; any lesser requirement would invite speculation and conjecture. The defendant attorney is entitled to summary judgment if he shows that there is an absence of proof adduced by the client on the issue of proximate cause.

(Citation omitted.) Millsaps v. Kaufold, 288 Ga. App. 44, 44-45 (653 SE2d 344) (2007). Here, the evidence shows that Freeman would not have prevailed below; rather, the defendants in the underlying suit would have been entitled to judgment as a matter of law. Therefore, Freeman “cannot show a causal link between [her] attorney’s failure to [timely file the requisite ante litem notice, which resulted in her case being dismissed,] and any injury suffered.” Houston v. Surrett, 222 Ga. App. 207, 209 (2) (474 SE2d 39) (1996). Because Freeman cannot prove proximate causation, an essential element of her legal malpractice claim, the trial court properly granted summary judgment to Eichholz. See id.

Judgment affirmed.

Doyle, J., concurs. Andrews, J., concurs in Division 2 and in the judgment.

       Of those jurisdictions that have addressed the issue, the majority have concluded that a prison inmate’s visitor is an invitee of the prison. See, e.g., Tobar v. United States, 696 FSupp.2d 1373, 1379 (S.D. Ga. 2009) (because visitation indirectly benefits prison officials, inmate’s visitor is an invitee); Levy v. State of Illinois, 22 Ill. Ct. Cl. 694, 696 (1958) (“The fact that the state institutions have visitors’ days and encourage visits with patients [of the prison hospital] would indicate that claimant was more than a ‘licensee,’ and should be treated as an ‘invitee.’ ”); Blair v. Ohio Dept. of Rehab. &c., 582 NE2d 673, 677-678 (Ohio Ct. Cl. 1989) (applying the “invitation and purpose” test, the court concluded that the inmate’s visitor was an invitee); Lewis v. United States, 702 FSupp. 231, 234 (E.D. Mo. 1988) (by opening itself to visitors during certain visiting hours, the prison impliedly invites or encourages family members of inmates to enter the premises, and thus, assumes the obligation of keeping the premises reasonably safe for its “public invitees”); but cf. Linn v. United States, 979 FSupp. 521, 523 (c) (E.D. Ky. 1997) (finding that the visitor was the inmate’s social guest and that the government derived no benefits from his presence, the court concluded the visitor was a licensee).

       In her appellate brief, Freeman contends that the doctrine of res ipsa loquitur should be applied to fill the evidentiary gap between the alleged negligence of the prison employees and her injury. Our review of the pleadings, of Freeman’s response to Eichholz’s motion for summary judgment, and of the court’s order reveals that the issue of the applicability of the doctrine of res ipsa loquitur was not raised and argued before the trial court. Consequently, the issue is not properly before us. See Ballard v. Southern Regional Med. Center, 216 Ga. App. at 99 (2); Jones v. Equipment King Intl., 287 Ga. App. 867, 869 (1) (652 SE2d 811) (2007) (“We will not reverse an award of summary judgment based on an argument raised for the first time on appeal.”) (footnote omitted).


author: Adams, Judge.

text:
    A10A1998.
    WARE v. THE STATE.
    (707 SE2d 111)
   Adams, Judge.

Clifford Lovett Ware was tried and convicted of the sale of cocaine and sentenced to ten years, four to serve. He appeals following the denial of his amended motion for new trial. He contends the evidence was insufficient in that it only shows that he possessed or delivered cocaine but not that he sold it. He also contends the trial court committed a related error when charging the jury on the definition of the crime and erred with regard to the admission of certain audio evidence.

Construed in favor of the verdict, the evidence at trial shows that on September 27, 2007, an undercover officer assigned to the Hall County Multi-Agency Narcotics Squad received a call regarding a possible prostitute and went to the specified location — a high crime area — in an unmarked truck. When the officer arrived, the suspected prostitute walked away, but Ware, who was also in the area, approached the officer’s truck and asked him what he was looking for. The officer replied that he was looking “for some soft or hard, which would be either crack cocaine or powder cocaine,” and, at that point, Ware got into the officer’s truck. Ware gave the officer directions to a local hotel, and, when they arrived, Ware “said that he could go over there and he had a hook up over there at the hotel.” Ware got out, told the officer to wait in the truck, and headed for the hotel. At that point, the officer drove out of the parking lot in order to have time to get a recorder ready, call for backup, and arrange an open communication line so that agent Andy Smith could hear what was happening. From that point forward the officer’s conversations were recorded.

When the undercover officer returned, Ware was very upset about the officer driving off, and he said that they would now have to go somewhere else, which they did. But Ware was unsuccessful at the second location, and he recommended going back to the hotel. During their drive, Ware bragged about having the ability to get drugs and to avoid serving jail time because he had other people — “mules” — who “took all the heat, but tried to pin it on him.”

Back at the hotel, Ware gave instructions about where to park and how to drop him off, drive around, and meet him in another parking lot. Ware told the officer to give him the money, and the officer gave him a marked $20 bill. Ware went into a room at the hotel, returned minutes later, and gave the officer two rocks of what proved to be cocaine. Thereafter, agents who had been monitoring the events initiated a traffic stop and arrested Ware. Other agents went to the hotel room, placed a man named Warren Faulkner in custody, and recovered the marked $20 bill from the hotel room.

1. Ware was accused of the “sale of cocaine.” OCGA § 16-13-30 (b). Ware argues that although he may have been in possession of cocaine, the evidence was insufficient to establish that he sold it. He argues that no evidence was presented to show that an agreement existed between him and the officer to deliver a particular quantity of cocaine for a particular price; that no evidence showed that he received or retained any consideration for the sale; that he only delivered the cocaine; and that Faulkner was the actual seller.

But “|e|very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16-2-20 (a). And one may be a party if he or she “[¿Intentionally aids or abets in the commission of the crime.” OCGA § 16-2-20 (b) (3). It is easy to conclude that Ware aided and abetted the sale of cocaine to the undercover officer. “The theory that one may act as a conduit or procuring agent of the purchaser and thereby escape culpability as a seller has been considered and rejected by this Court.” (Citations and punctuation omitted.) Gay v. State, 221 Ga. App. 263, 265 (1) (a) (471 SE2d 49) (1996) (“Evidence that [defendant] approached [undercover agent], asked what he wanted, and then introduced [the agent] to [a third man], who actually passed the contraband and collected the money is sufficient proof that defendant is guilty, beyond a reasonable doubt, as a party to the crime of selling cocaine.”). See, e.g., Little v. State, 230 Ga. App. 803, 805 (1) (498 SE2d 284) (1998).

2. In a related enumeration, Ware contends the trial court erred by failing to answer a question the jury asked the court during its deliberations. In general, questions regarding a court’s response to jury questions are reviewed for abuse of discretion. Cloyd v. State, 237 Ga. App. 608, 610 (3) (516 SE2d 103) (1999). “To determine whether a recharge is erroneous, we examine the charge as a whole, including both the initial charge and the recharge. [Cit.]” Id.

Initially, the court charged the jury on the crime as follows:

The offense charged in this accusation is sale of cocaine, which provides that it is unlawful for any person to sell any quantity of cocaine, which is a controlled substance.
Sale means to transfer property, actually or constructively, for consideration either in money or its equivalent.
The term sale is generally given a broader definition in the drug context than in other fields of law, so as to include not only the exchange of goods for valuable consideration, but also barter and gift and often the offer or agreement to sell, exchange, give or otherwise transfer the drugs to another.

During the deliberations, the jury sent out a note that said, “Can we have the specific definition of “SALE” from OCGA [§] 16-13-30? or is that what we have, word for word.”

“When the jury requests the court to recharge (it) on any point, it is the court’s duty to do so.” Such further instruction must be “in plain, clear language . . . calculated to enlighten rather than confuse the jury.”

(Footnotes omitted.) Quiroz v. State, 291 Ga. App. 423, 426 (3) (662 SE2d 235) (2008).

In colloquy, the court noted that neither that Code section nor the related section of definitions provided a definition of “sale,” and the court indicated that it was inclined to refer the jury again to the page of the charges where the above-quoted charge was given. Ware’s counsel, who had objected to the original charge, objected again to the original charge and the court’s inclination to refer to it again. The court then instructed the jury to “please refer to page 9 of the jury instructions that have been provided.”

On appeal, Ware contends that the court’s recharge was reversible error because it failed to answer the jury’s specific question of whether the charge contained a word-for-word definition of “sale” and, therefore, it left the jury with the impression that it did. Ware adds that the recharge was confusing and may have had the effect of depriving him of his sole defense — that his conduct amounted to purchasing, not selling, cocaine.

But the original charge given by the court was correct and appropriate for the case. See May v. State, 179 Ga. App. 736 (1) (348 SE2d 61) (1986). And, given that there is no definition of “sale” in the relevant Code sections, the court was faced with the possibility of confusing the jury about whether such a definition must be in the statute as opposed to case law. We believe the court acted within its discretion by simply referring the jury back to the correct charge rather than giving a lengthy explanation of the absence of a word-for-word definition in the Code. And given that the charge was correct as given initially, we fail to see how the charge deprived Ware of any legitimate defense to his actions.

Unlike in Quiroz, the court’s response in this case did not force the jury to answer its own question of law. See Quiroz, 291 Ga. App. at 427 (3). Rather, the jury in this case appeared to be confused about whether it had a proper definition of a sale; when the court referred the jury to the correct law that had already been given, it sufficiently informed the jury that it had the definition that it needed. The case of Miller v. State, 236 Ga. App. 825 (513 SE2d 27) (1999), is also distinguishable because in that case the court’s recharge may have left the jury with an incomplete understanding of causation, a necessary element of the case.

3. Ware contends the court erred by ruling the State was not required to redact from a recording allegedly irrelevant and prejudicial statements he made during the course of the offense. He argues they put his character in issue even though he had not opened the door to such testimony. But evidence of statements made by the defendant during the commission of the offense is admissible as part of the res gestae of the crime even if it puts the defendant’s character in evidence. McLendon v. State, 258 Ga. App. 133, 134 (2) (572 SE2d 763) (2002).

Decided January 26, 2011

Reconsideration denied February 22,2011

Travis A. Williams, H. Bradford Morris, Jr., for appellant.

Lee Darragh, District Attorney, Wanda L. Vance, John D. West, Jr., Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Andrews, Judge.

text:
    A10A2331.
    COX et al. v. ALTUS HEALTHCARE AND HOSPICE, INC.
    (706 SE2d 660)
   Andrews, Judge.

This appeal concerns a now-dissolved interlocutory injunction enforcing restrictive covenants against Edwin Cox and in favor of his ex-employer Altus Healthcare and Hospice, Inc. After the trial court issued the injunction and the docketing of Cox’s appeal concerning it in this Court, Altus amended its complaint to dismiss its claim for injunctive relief with prejudice. The trial court dismissed the claim with prejudice and dissolved the injunction. Altus then moved this Court to dismiss the appeal as moot. Cox asserts that the appeal is not moot because his counterclaim for wrongful restraint depends on the merits of its claim concerning the now-dissolved injunction. We hold that the appeal is not moot and that the injunction did amount to a wrongful restraint. We therefore remand the case for further proceedings as to any damages suffered by Cox during the pendency of the injunction.

We review the grant or refusal of an interlocutory injunction for an abuse of discretion. Where facts are in dispute, we will reverse only in the event of manifest abuse of discretion. Where no facts are in dispute, however, the trial court’s discretion is circumscribed by the applicable rules of law.

(Punctuation and footnotes omitted.) Lowe’s Home Centers v. Garrison Ridge Shopping Center &c., 283 Ga. App. 854, 855 (643 SE2d 288) (2007).

Here, the relevant facts are not in dispute. The record shows that at the beginning of his employment with Altus in 2008, Cox completed a form providing that “[i]n connection with my activities as an employee of Altus Healthcare and Hospice, I agree not to divulge any information I receive, including, but not limited to, patients, family members, staff, and volunteers[,] to any unauthorized persons.”

In the fall of 2008, Cox and Altus entered into discussions about Cox’s purchase of the business. Although the copies in the record before us are not executed, we assume that in the course of these discussions, Cox signed a confidentiality agreement including covenants not to recruit Altus officers, employees, or contractors “for a period of two years”; not to solicit referrals “at any time”; and not to disclose or use confidential information “at any time.” By 2009, however, the parties had broken off negotiations. Cox acquired a different hospice provider and resigned from Altus in September 2009. There is no evidence that Cox took any confidential information with him to his new venture.

Altus then sued to enforce the covenants. After a hearing, the trial court issued an interlocutory injunction on March 3, 2010 enjoining Cox from “utilizing any Confidential Information from Altus”; “soliciting or enticing away” any person associated with Altus “for the purpose of performing services for” Cox; “soliciting or enticing away . . . any referral source of Altus”; and “using any Confidential Information” to assist “any person” having a business relationship with Altus “to restrict, vary or cease such relationship.”

On March 23, Cox filed his notice of appeal. On April 28, Cox moved for leave to amend his answer to add a claim for wrongful restraint. See OCGA § 9-11-65 (c) (a trial court “may require the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been enjoined or restrained wrongfully”). The trial court granted the motion, and Cox amended his answer accordingly. On September 30, 2010, one day before its appellate brief was due, Altus amended its complaint to dismiss its claim for injunctive relief. That same day, the trial court dismissed the claim with prejudice and dissolved the injunction.

1. Having a duty to inquire into our own jurisdiction, we first examine whether this appeal should be dismissed as moot under OCGA § 5-6-48 (b) (3).

In a case involving injunctive relief, the filing of a notice of appeal does not act as supersedeas. Brown v. Spann, 271 Ga. 495 (520 SE2d 909) (1999). Because Cox did not seek a supersedeas below, the trial court retained jurisdiction over the injunction during the pendency of this appeal, and its order dissolving the injunction mooted the question of its enforceability against Cox. Storer Broadcasting Co. v. Peek, 247 Ga. 1, 2 (273 SE2d 605) (1981) (dismissing appeal where an injunction no longer ordered the appellant to perform any act); Hogan Mgmt. Svcs. v. Martino, 242 Ga. App. 791, 793 (1) (530 SE2d 508) (2000) (finding appeal moot on ground that covenant in dispute had expired).

However, this Court will not dismiss an appeal as moot if “the appellant, in case of a reversal, could claim or enforce the rights insisted upon.” Seaton v. Aetna Cas. &c. Co., 189 Ga. App. 546, 547-548 (376 SE2d 712) (1988). Specifically, “a party who is wrongfully restrained has the right to recover actual damages resulting from that wrongful restraint.” Hogan, 242 Ga. App. at 794 (2). This is so even when the appellate court finds that the question of the injunction’s enforceability has become moot. Id. at 793-794 (1), (2) (finding appeal moot but addressing whether expired injunction was wrongful); see also Coleman v. Retina Consultants, 286 Ga. 317, 323, n. 5 (687 SE2d 457) (2009) (a trial court’s vacatur of an injunction “does not answer the question whether the trial court erred by entering the injunction in the first place”).

Here, the trial court granted Cox leave to amend his answer to include a claim for wrongful restraint, which remains pending below. Accordingly, we must decide whether the restrictive covenant actually enforced against Cox was illegal. If it was, then Cox’s wrongful restraint claim is meritorious, and he may recover “such costs and damages,” OCGA § 9-11-65 (c), as he may have suffered during the period of the injunction’s enforcement — that is, from March 3 to September 30, 2010. Altus’s motion to dismiss is denied.

2. Now effective as a result of the ratification of an amendment to the Constitution of Georgia in the general election of November 2, 2010, OCGA § 13-8-2.1 (a) authorizes covenants “that restrain in a reasonable manner.” However, Ga. L. 2009, p. 231, § 4 provides that the new version of the statute “shall not apply in actions determining the enforceability of restrictive covenants entered into before” the ratification. We therefore apply the law of restrictive covenants as it existed before that event.

“By both constitutional and legislative provision,” the former law prohibited “contracts or agreements in general restraint of trade.” Howard Schultz & Assoc. v. Broniec, 239 Ga. 181, 183 (1) (236 SE2d 265) (1977); see also Ga. Const, of 1983, Art. Ill, Sec. VI, Par. V (c). Restrictive covenants “[would] be upheld only if they [were] strictly limited in time and territorial effect, and [were] otherwise reasonable considering the business interest of the employer sought to be protected and the effect on the employee.” Orkin Exterminating Co. v. Walker, 251 Ga. 536, 537 (307 SE2d 914) (1983). “Whether [a] restraint imposed by [an] employment contract is reasonable is a question of law for determination by the court, which considers the nature and extent of the trade or business, the situation of the parties, and all the other circumstances.” Habif, Arogeti & Wynne, P.C. v. Baggett, 231 Ga. App. 289, 292 (498 SE2d 346) (1998). Specifically, and “[although facts may be necessary to show that a questionable restriction, though not void on its face, is, in fact, reasonable, a covenant containing sufficiently indefinite restrictions cannot be saved by additional facts and is void on its face.” (Punctuation omitted.) Global Link Logistics v. Briles, 296 Ga. App. 175, 177 (1) (674 SE2d 52) (2009), citing Koger Properties v. Adams-Cates Co., 247 Ga. 68, 69 (2) (274 SE2d 329) (1981); see also Uni-Worth Enterprises v. Wilson, 244 Ga. 636, 640-641 (2) (261 SE2d 572) (1979) (the enforceability of a restrictive covenant was “a legal question which could be determined by looking solely to the language of the restrictive covenant”).

(a) We reject Altus’s argument that the agreement could be blue-penciled as ancillary to the sale of Altus because Cox did not purchase the company. See Osta v. Moran, 208 Ga. App. 544, 545 (1) (430 SE2d 837) (1993) (affirming trial court’s refusal to blue-pencil a restrictive covenant where a sale was not consummated). Rather, and as Altus’s own chief executive officer testified, the covenants were undertaken as a “condition of his employment.” As such, they are subject to strict scrutiny and will stand or fall based on the question of law whether all the restraints imposed were reasonable, appropriately limited, and enforceable. W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (422 SE2d 529) (1992).

(b) The nondisclosure provisions in the form and the agreement are unenforceable on their face because they are not limited in time. Allen v. Hub Cap Heaven, 225 Ga. App. 533, 539 (484 SE2d 259) (1997).

(c) The nonsolicitation provisions in the agreement are unenforceable on their face because (i) they contain no time limitation and (ii) they contain neither a limitation to those personnel with whom Cox had a business relationship during the term of the agreement nor a geographical limitation. Johnstone v. Tom’s Amusement Co., 228 Ga. App. 296 (491 SE2d 394) (1997) (nonsolicitation clause without time limitation was unenforceable); Trujillo v. Great Southern Equip. Sales, 289 Ga. App. 474, 476 (657 SE2d 581) (2008) (nonsolicitation clause containing neither a personnel limitation nor a geographic limitation was unenforceable).

Decided January 24, 2011

Reconsideration denied February 22, 2011

Fisher & Phillips, Burton F. Dodd, for appellants.

(d) The nonrecruitment provision is likewise invalid on its face because it bars Cox from even unsolicited contact with Altus employees or affiliates. Covenants that restrict employees’ activities “more . . . than is necessary for the protection of the employer will not withstand the reasonableness test so as to uphold the covenant.” (Punctuation omitted.) American Gen. Life &c. Ins. Co. v. Fisher, 208 Ga. App. 282, 284 (1) (430 SE2d 166) (1993) (covenant preventing employer from accepting unsolicited insurance applications was unreasonable and thus unenforceable).

(e) “Georgia law is clear” that if one covenant in an agreement subject to strict scrutiny is unenforceable, “then they are all unenforceable.” Advance Technology Consultants v. RoadTrac, 250 Ga. App. 317, 320 (2) (551 SE2d 735) (2001). Moreover, Altus’s CEO’s testimony that he believed that Cox may have violated the covenants was inadequate to overcome Cox’s unambiguous testimony that he did not do so. Wolff v. Protege Systems, 234 Ga. App. 251, 255 (2) (506 SE2d 429) (1998) (reversing issuance of injunction supported only by “mere allegations and conclusions unsupported by facts showing a violation, or at least a substantial threat of imminent violation,” of a covenant), disapproved on other grounds, Advance Technology Consultants, 250 Ga. App. at 321 (2).

For all these reasons, the trial court erred when it issued the injunction restraining Cox.

3. A party applying for an injunction or restraining order “does so at its own peril because if it succeeds in obtaining a restraint that is later determined to have been wrongful, then the wrongfully restrained party may recover actual damages caused by that restraint from the applicant.” Hogan, 242 Ga. App. at 794 (2). As we have held in Division 2, the covenant at issue here was illegal, leaving “no question that the restraint was wrongful.” Id. at 795 (2). We therefore remand the case for a determination of the amount of actual damages, if any, suffered by Cox during the period of the injunction’s enforcement. Id. (remanding for proceedings on actual damages suffered by wrongfully restrained party even when injunction had expired).

Case remanded with direction.

Ellington, C. J., and Doyle, J., concur.

Miller & Martin, Christopher E. Parker, Michael P. Kohler, Sonya R. Madison, for appellee.

       The former OCGA § 13-8-2.1, also authorizing restrictive covenants “that restrain in a reasonable manner,” was declared unconstitutional in Jackson & Coker, Inc. v. Hart, 261 Ga. 371 (405 SE2d 253) (1991).


author: PHIPPS, Presiding Judge.

text:
    A10A1673.
    THE STATE v. GREEN.
    (706 SE2d 720)
   PHIPPS, Presiding Judge.

The state appeals from the trial court’s order vacating Charlton Green’s ten-year-old sodomy conviction. Because Green was not entitled to such relief, we reverse.

When a question of law is at issue, as here, we review the trial court’s ruling de novo and reverse if the court committed legal error.

In 1997, Green pled guilty to sodomy and other offenses and was sentenced as a first offender, which sentence included probation. In January 1999, after violating the terms of his probation, Green was convicted of and sentenced for sodomy and other offenses. Green was then subject to the sexual offender registration statute.

In September 1999, Green filed a “Motion to Terminate Sentence or Modify Sentence In the Alternative,” arguing that because the sodomy statute had been held unconstitutional in Powell v. State, the sentence for that offense should be terminated or modified to remove all conditions of probation. The trial court found Powell inapplicable and denied the motion.

In 2008, Green was charged with and convicted of failure to register as a sexual offender. He appealed from that conviction, challenging the sufficiency of the evidence to support the conviction for failure to register; he argued that because substantive changes in the law had legalized the sexual conduct that formed the basis for his sodomy conviction, he was not required to register as a sexual offender. We affirmed the conviction, holding that a conviction for failure to register as a sexual offender is separate from the original offense (sodomy), that at the time of the sodomy conviction, the conduct in which Green engaged was against the law, and that the evidence was sufficient to support the conviction for failure to register as a sexual offender.

In September 2009, Green filed in the trial court a “Motion to Pronounce a Valid Judgment.” Therein, he sought an order vacating the underlying sodomy conviction, arguing that “it was entered in violation of his rights to due process of law and to privacy.” Green argued that the conduct underlying the sodomy conviction was protected pursuant to Lawrence v. Texas and Powell and that the sodomy conviction was the only offense that subjected him to the sexual registration requirement. The state opposed and moved to dismiss the motion contending, inter alia, that a motion to vacate a judgment was not an appropriate remedy in a criminal case.

The trial court granted Green’s motion and denied the state’s motion to dismiss, holding that the court was authorized to vacate the conviction because the sentence was void. According to the trial court, in punishing Green for conduct that was no longer criminal, the court had imposed a punishment that the law does not allow.

1. Regardless of the nomenclature, Green’s motion sought to vacate his criminal conviction. However, because a motion to vacate a judgment of conviction is not an established procedure for challenging the validity of a judgment in a criminal case, Green was not authorized to seek relief from his criminal conviction pursuant to such a motion. His motion should have been dismissed.

Contrary to Green’s argument, the court was not authorized by Chester v. State to grant the motion. The division of Chester that was not overruled by Harper v. State allows a trial court to correct a void sentence at any time. Green moved the trial court to vacate the conviction (which the trial court did), not to correct the sentence. A claim challenging a conviction and a claim challenging the resulting sentence as void are not the same. Green’s reliance on Chester is misplaced. The trial court erred in granting the motion.

Decided February 22, 2011.

Joe W. Hendricks, Jr., District Attorney, for appellant.

Stephen R. Scarborough, for appellee.

2. In light of our holding in Division l, we need not address the state’s assertion that the conduct underlying Green’s sodomy conviction was not constitutionally protected.

Judgment reversed.

Miller, É J., and McFadden, J., concur.

       See O’Neal v. State, 285 Ga. 361, 362 (677 SE2d 90) (2009).

       See OCGA § 42-1-12.

       OCGA § 16-6-2 (a).

       270 Ga. 327 (510 SE2d 18) (1998) (insofar as OCGA § 16-6-2 criminalizes the performance of private, unforced, noncommercial acts of sexual intimacy between persons legally able to consent, the statute infringes upon constitutional guarantees to the right of privacy).

       See Green v. State, 303 Ga. App. 210, 211 (692 SE2d 784) (2010).

       Id. at 211-212 (1).

       Id. at 213 (1).

       539 U. S. 558, 562-564, 578 (123 SC 2472, 156 LE2d 508) (2003) (Texas statute making it a crime for two consulting adults of the same sex to engage in certain intimate sexual conduct in private residence violated the adults’ right to liberty under the due process clause).

       Supra.

       See Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010).

        Roberts, supra; Williams v. State, 283 Ga. 94-95 (656 SE2d 144) (2008); Brundidge v. State, 302 Ga. App. 510, 511 (2) (691 SE2d 339) (2010).

        Harper v. State, 286 Ga. 216 (686 SE2d 786) (2009); Roberts, supra.

       See Roberts, supra; Brundidge, supra.

       284 Ga. 162 (664 SE2d 220) (2008), overruled in part by Harper, supra, and Williams v. State, 287 Ga. 192 (695 SE2d 244) (2010).

       Supra.

        Chester, supra at 162 (1); see Harper, supra at 217-218 (1) (overruling Division 2 of Chester, which had authorized a defendant to move to have a judgment of conviction declared void pursuant to OCGA § 17-9-4), and n. 1 (noting that Division 1 of Chester was correctly decided, and that the only remedy for asserting the right to challenge a judgment of conviction as void under OCGA § 17-9-4 is one of the three listed statutory procedures).

        Williams, supra, 287 Ga. at 193; see Regent v. State, 306 Ga. App. 616 (703 SE2d 81) (2010).

       See Harper, supra at 218 (1), (2).

       Supra.


text:
    A10A1807.
    FRYE v. THE STATE.
    (706 SE2d 581)
   Adams, Judge.

Joseph Frye filed a plea in bar on double jeopardy grounds asserting that the mistrial granted in his trial on a charge of theft by taking was induced by prosecutorial misconduct. The trial court denied the plea in bar, and Frye appeals that ruling.

On November 3, 2007, Frye pawned a car stereo for $30 at E Super Pawn in Douglasville. Tina Meadows, who was working in the pawn shop that day, inspected the stereo to see if it worked, checked Frye’s identification and prepared a pawn ticket for the transaction. Meadows gave Frye a copy of the pawn ticket and the money for the radio, then stepped approximately 15 to 20 feet away to prepare an inventory control sticker for the radio. When she turned back, both Frye and the radio were gone. After Meadows checked with the other employees and determined that they had not moved the radio, she viewed the store’s surveillance video. Afterward, the store employees checked the parking lot for Frye, but he was gone. Meadows called the phone number he had provided, but it was disconnected. She then called the police and reported the theft. Frye was subsequently arrested and charged with theft by taking.

Frye filed a motion in limine on the first day of trial, arguing that any testimony about the contents of the surveillance video would be hearsay and would violate the best evidence rule because the video was no longer available. At the hearing on this motion, the prosecutor represented that police responded to Meadows’ call and took a report of the theft. Meadows reported to the responding officers that her review of the surveillance video showed Frye taking the car stereo, but at that time neither the police nor the store was able to access the video. By the time a detective returned to the store with a flash drive to properly download the video, the store’s security system had automatically deleted it.

After hearing the party’s argument, the trial court ruled that any testimony about what was shown on the videotape was inadmissible hearsay because the videotape was no longer available. The State objected on the record to this ruling, moved for reconsideration, and asked the trial court to certify the issue for interlocutory review after the motion was denied. The prosecutor later acknowledged, however, that he did not have an opportunity for interlocutory appeal because the jury had been impaneled.

During Meadows’ direct testimony at trial, the prosecutor questioned her in various ways about what she observed and what she concluded that day. He first asked her who she thought took the car stereo, but Frye objected that the question was speculative, and the trial court agreed. The prosecutor then asked, “[D]id you decide who took the radio?” But Frye raised another successful objection on the same ground. When the prosecutor asked, “did you think that Mr. Frye took the radio?,” the trial court intervened without objection and directed the prosecutor to ask Meadows about facts not what she thought. The court further directed “[t]hat question should be stricken from the jury’s mind.”

The prosecutor next asked Meadows what she did after checking to see if the other employees had the stereo. Meadows responded that she checked the video. Frye again objected, but the trial court ruled that Meadows could testify “as to what she did.” But the judge cautioned the prosecutor to “bear in mind my earlier rulings.” Shortly thereafter, the prosecutor asked, “So you had figured out [Frye] had stolen the radio?” Frye objected, and the trial court sent the jury out. The trial court told the prosecutor that “the cumulative effect of your questions is coming really close to just blatantly disobeying my ruling.”

At that point, Frye’s counsel made a motion for a mistrial. The prosecutor countered that the matter could be addressed with a limiting instruction. The trial court decided to break for the day, release the jury and take the transcript home to read before issuing a ruling. The prosecutor renewed his motion asking the court to reconsider its hearsay ruling. The next morning, the trial court denied the State’s motion and granted Frye’s motion for mistrial. However, the court expressly attributed the prosecutor’s behavior to “zeal and not any kind of sinister motive.”

In the order denying Frye’s plea in bar, the trial court reiterated its earlier conclusion that the prosecutor’s “improper line of conduct stemmed from his inexperience or over zealousness, or a combination of both, and lacked any sinister or malicious intent.” The trial court further stated that it found no evidence that the prosecutor’s actions were intentional or that they were undertaken for the purpose of subverting the protections offered by the Double Jeopardy Clause.

Where, as here, a mistrial is granted at the request of a criminal defendant, retrial is not prohibited on the basis of double jeopardy unless it is established that the State intended to goad the defendant into moving for a mistrial in order for the State to avoid a reversal due to prosecutorial or judicial error, or otherwise to obtain a more favorable chance of a guilty verdict on retrial. Whether the prosecutor intended to goad the defendant into moving for mistrial calls for the trial court to make a finding of fact by inferring the existence or nonexistence of intent from objective facts and circumstances. When the trial court sits as the fact-finder, its resolution of factual issues will be upheld by the appellate court unless it is clearly erroneous. A trial court’s findings of fact will not be deemed to be clearly erroneous if there is any evidence to support them, and this holds true even if the findings are based upon circumstantial evidence and the reasonable inferences which flow from them.

(Citations and punctuation omitted.) Brown v. State, 303 Ga. App. 814 (694 SE2d 385) (2010). “It doesn’t even matter that [the prosecutor] knows he is acting improperly, provided that his aim is to get a conviction. The only relevant intent is the intent to terminate the trial, not the intent to prevail at trial by impermissible means.” (Citation and punctuation omitted.) State v. Traylor, 281 Ga. 730, 732 (642 SE2d 700) (2007).

In this case, the trial court’s finding that the prosecutor did not intend to goad Frye’s attorney into moving for a mistrial is not clearly erroneous. After the defense moved for the mistrial, the prosecutor argued against it, saying it was a last resort, and instead suggested that limiting instructions would cure the problem. He also asked that he be allowed to instruct his witness not to mention the videotape anymore. This evidence supports the trial court’s finding that the prosecutor’s actions were not designed to provoke a mistrial. “Even [if] the trial court may have been authorized [by the record] to reach the opposite result, we will affirm if there is evidence to support the trial court’s finding.” (Citation omitted.) Steward v. State, 251 Ga. App. 657, 658 (555 SE2d 33) (2001).

Decided February 22, 2011.

Wesley M. Woolverton, Erin K. Panning, for appellant.

Brian K. Fortner, Solicitor-General, Matthew C. Krull, Assistant Solicitor-General, for appellee.

Judgment affirmed.

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

       The propriety of the trial court’s ruling in this regard is not before us, and we expressly do not address that issue.