text:
    A15A1800.
    PRICE v. REISH.
    (780 SE2d 745)
   BARNES, Presiding Judge.

Following the grant of her application for interlocutory appeal, Tiffany Price appeals the trial court’s order vacating her attorney’s entry of appearance and denying her motion for recusal. Price contends that the trial court erred by failing to comply with the procedural framework for addressing recusal motions set forth in Uniform Superior Court Rule (“USCR”) 25.3. We are constrained to agree with Price at this stage of the proceedings and therefore must vacate the trial court’s order and remand for the proper application of USCR 25.3 in accordance with this opinion.

This case arises out of an ongoing conflict between Lisa Young Smith West, an attorney who routinely practices before the Superior Court of Fulton County, and one of the judges on that court, the Honorable Bensonetta Tipton Lane. The pertinent facts are as follows.

The Prior Recusal Orders. From late 2012 until 2014, Judge Lane recused from every case assigned to her in the Family Division of the Superior Court of Fulton County in which attorney West represented one of the parties. Some of the recusal orders were entered by Judge Lane sua sponte, while others were entered upon motion by one of the parties.

Judge Lane began entering the orders of recusal after West was retained to represent several parties in a matter pertaining to the estate of Judge Lane’s deceased sister in the Probate Court of DeKalb County (the “probate court litigation”). In the probate court litigation, West, on behalf of her clients, filed motions to preserve and inspect records relating to the judicial reelection campaign of Judge Lane. The probate court granted West’s motions over the objection of Judge Lane, and the probate court later entered an order permitting West to subpoena several e-mail service providers to obtain e-mails of Judge Lane’s deceased sister relating to the reelection campaign.

In her recusal orders, Judge Lane alluded to the probate court litigation by stating that West had “made false and inappropriate allegations in connection with the Court’s recently deceased sister.” Judge Lane found that her recusal from Family Division cases involving West was appropriate because reasonable members of the public could question whether she could decide those cases impartially.

Judge Lane entered recusal orders separately in each Family Division case involving West until September 2013, when she entered a “Standing Order of Recusal,” declining to preside over any future case in which West appeared as either a party or counsel. Judge Lane ordered that any case assigned to her involving West should be automatically reassigned to another judge.

In May 2014, Judge Lane entered an “Order Vacating the Standing Order of Recusal.” Judge Lane concluded that she had

failed to anticipate the manner in which an automatic diversion of cases could prompt “Judge shopping,” could undermine the system of random assignment of cases, and could cause cases to be transferred from one Division to another late in litigation (and thereby impose extra delays and expense upon the litigants and extra burdens upon each Judge of the Family Division).

Judge Lane ruled that she would henceforth “provide more particularized consideration of the circumstances presented by each case” involving West to determine whether recusal was necessary.

The Present Recusal Order. In August 2014, Joel S. Reish filed a petition for modification of custody, visitation, and child support against his ex-wife, Price. The case was assigned to Judge Lane. Price filed a pro se response to the modification petition. Price subsequently retained counsel, but her counsel was permitted to withdraw from the case on January 7, 2015.

On January 8, 2015, West and her law firm entered an appearance on behalf of Price. That same day, West filed a motion for recusal of Judge Lane on Price’s behalf, arguing that the case should be reassigned to a different judge because Judge Lane was biased against West, as reflected by her prior recusal orders and the dispute between West and Judge Lane in the probate court litigation. In support of her recusal motion, West filed an affidavit in which she discussed the prior recusal orders and the probate court litigation. Attached as exhibits to Lane’s affidavit were the prior recusal orders issued by Judge Lane, the Standing Order of Recusal and the order vacating the same, and an order issued in the probate court litigation reflecting the dispute over records pertaining to Judge Lane’s reelection campaign.

On January 23, 2014, Judge Lane entered an order vacating West and her law firm’s entry of appearance and denying the motion to recuse (the “recusal order”). In the recusal order, Judge Lane found, in relevant part:

Since December 2012 the undersigned Judge has recused from all cases involving Ms. West. In several cases[,] Ms. West has entered an appearance after entry of a final order, requiring the Judge to whom the case is transferred to pore over the record in an effort to duplicate the original Judge’s familiarity with the facts and circumstances presented.... In [o]ther cases[,] Ms. West has entered an appearance in cases assigned to this Division before entry of a final order but after there has been significant litigation. . . .
Permitting a litigant who is unhappy with the manner in which their litigation is going to obtain transfer to a different judge by retaining counsel who is known to present a conflict of interest for the assigned judge simply sanctions judge-shopping. The random assignment of cases to the members of a particular bench is an important principle of Georgia law, one that both comports with due process and significantly strengthens public confidence in the actions of the judiciary. . . .
In addition, when a case is transferred from one division to another in mid-stream [,] the result is delays and additional expense for the parties as well as burdens upon the Court. The Court finds that a transfer of this case to a different Division is highly likely to delay trial, impose additional expense on the parties (both the party seeking the transfer and the opposing party), and place extra burdens upon the receiving Division.
There is no indication that there was a pre-existing attorney/client relationship between the respondent and Ms. West’s firm or that she possesses specialized expertise regarding a subject at issue in this case. In light of the large number of highly skilled, well-experienced family law practitioners in the local Bar there is also no indication that the respondent lacks other opportunities to retain skilled counsel.
The Court finds that Ms. West knowingly “hired into a conflict.” The Court further finds that permitting [Price] to hire Ms. West into an existing conflict would be the equivalent of allowing judge shopping. For the foregoing reasons the Entry of Appearance filed by Ms. West and The West Firm, P.C. is hereby VACATED and their participation in this litigation is disallowed. [Price’s] motion for recusal/ disqualification [from this] case is accordingly DENIED.

Following entry of the recusal order, Judge Lane granted a certificate of immediate review, and this Court granted the resulting application for interlocutory appeal. This appeal by Price followed.

1. Price contends that Judge Lane erred by not following the recusal procedure set forth in USCR 25.3. We are constrained to agree.

USCR 25.3, which provides the procedural framework governing motions to recuse a trial judge, states in relevant part:

When a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted. If it is found that the motion is timely, the affidavit sufficient and that re-cusal would be authorized if some or all of the facts set forth in the affidavit are true, another judge shall be assigned to hear the motion to recuse. . . .

As our Supreme Court has explained,

USCR 25.3 does not authorize a discretionary determination on the part of the trial judge presented with a motion and affidavit to recuse — the Rule states that another judge shall be assigned to hear the recusal motion if the motion is timely, the affidavit legally sufficient, and the facts set forth in the affidavit, when taken as true, would authorize recusal.

Mayor & Aldermen of City of Savannah v. Batson-Cook Co., 291 Ga. 114, 119 (1) (728 SE2d 189) (2012). If the criteria of USCR 25.3 have been satisfied and the motion to recuse is assigned to another judge, the assigned judge has the discretion to decide the motion based solely on the affidavits or conduct an evidentiary hearing, and the assigned judge’s ultimate ruling on the merits of the motion must be accompanied by written findings of fact and conclusions of law. See USCR 25.6; Batson-Cook Co., 291 Ga. at 116.

Here, Judge Lane did not find that Price’s motion for recusal was untimely or that the supporting affidavit was legally or factually insufficient. Rather, she looked beyond the motion and affidavit to find that West had intentionally hired into a conflict situation and was engaged in a pattern of judge shopping. However, when a trial judge is presented with a motion for his or her recusal,

it is the duty of the judge to pass only on the legal sufficiency of the facts alleged to ascertain whether they support a charge of bias or prejudice. Neither the truth of the allegations nor the good faith of the pleader may be questioned, regardless of the judge’s personal knowledge to the contrary.

(Citations and punctuation omitted; emphasis supplied.) State v. Fleming, 245 Ga. 700, 702 (1) (267 SE2d 207) (1980). Consequently, Judge Lane was not authorized to inquire into the motives or good faith of West in bringing the motion to recuse on behalf of Price, and instead was limited to deciding whether the motion for recusal was timely, whether the affidavit was legally sufficient, and whether the facts set forth in the affidavit, if taken as true, would authorize recusal. See Batson-Cook Co., 291 Ga. at 119 (1). We therefore must vacate the recusal order and remand for Judge Lane to consider the motion for recusal under the criteria set forth in USCR 25.3.

In reaching this conclusion, we stress that our opinion in this case should in no way be construed as condoning the practice of intentional judge shopping by hiring into a conflict situation. Under the Georgia Rules of Professional Conduct, a lawyer shall not represent a client if “the representation will result in violation of the [disciplinary rules] or other law.” Ga. Rules of Professional Conduct Rule 1.16 (a) (1), found at State Bar Rules & Regs., Rule 4-102 (d) (“Bar Rule”). Thus, “[a] lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion.” (Emphasis supplied.) Bar Rule 1.16, Comment [1]. Furthermore, “[a] lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client,” Bar Rule 3.2, and shall not “engage in conduct intended to disrupt a tribunal.” Bar Rule 3.5 (d).

Given these disciplinary rules, an attorney cannot ethically accept representation in a pending case, where the attorney knows that the case has been assigned to a trial judge with whom the attorney has an existing conflict, with the intent of orchestrating the judge’s recusal and obtaining a more favorable outcome from a different judge. See Baptiste v. State, 229 Ga. App. 691, 694 (1) (494 SE2d 530) (1997) (rules of recusal are not intended to allow parties and their lawyers “to judge shop and to gain a trial advantage”). See also United States v. Kelly, 888 F2d 732, 746 (11th Cir. 1989) (“[A] recusal issue may not be abused as an element of trial strategy”); Valley v. Phillips County Election Comm., 183 SW3d 557, 559 (Ark. 2004) (judge shopping violates lawyer disciplinary rules); Grievance Administrator v. Fried, 570 NW2d 262, 267 (Mich. 1997) (holding that a lawyer who joins a case for the principal reason of causing recusal “is certainly subject to discipline”). Rather, an attorney who fears that a preexisting conflict with the assigned trial judge will cause the client to suffer should simply decline to accept the representation. See Mann v. State, 154 Ga. App. 677, 678 (1) (269 SE2d 863) (1980). “It is unethical conduct for a lawyer to ... arrange disqualifications,” Fried, 570 NW2d at 267, and such conduct constitutes impermissible judge shopping, “a practice that courts abhor.” Sears v. Citizens Exchange Bank of Pearson, 166 Ga. App. 840, 842 (305 SE2d 609) (1983).

If Judge Lane were to find on remand that the criteria of USCR 25.3 have been satisfied, the judge then assigned to hear the motion to recuse on the merits would not be without recourse, if that judge were to find that there was an intentional effort at judge shopping in this case. A motion for recusal can be denied on the merits if an attorney or client is found to have engaged in intentional misconduct in an effort to compel the judge to recuse. See Baptiste, 229 Ga. App. at 695 (1). Additionally, the judge assigned to hear the recusal motion on the merits has authority to sanction an attorney for improper conduct related to the recusal motion, see Horn v. Shepherd, 294 Ga. 468, 473 (2) (b), n. 9 (754 SE2d 367) (2014), and one possible sanction for violating lawyer disciplinary rules is the disqualification of counsel. See Ford Motor Co. v. Young, 322 Ga. App. 348, 356 (3) (745 SE2d 299) (2013). See also Valley, 183 SW3d at 559-560 (trial court acted within its discretion in disqualifying attorney upon finding that attorney had engaged in judge shopping in violation of disciplinary rules); Disaster Restoration Dry Cleaning v.Pellerin Laundry Machinery Sales Co., 927 S2d 1094, 1101-1102 (La. 2006) (trial court could deny motion to “enroll” co-counsel if co-counsel was “hired for the purpose of disqualifying the judge”). Thus, our opinion in this case does not resolve whether judge shopping occurred and what the consequences should be if it did occur, but rather holds that resolution of the issue was premature at the current stage of the proceedings.

Decided December 23, 2015

Reconsideration denied January 15, 2016

The West Firm, Lisa Y. S. West, for appellant.

Ellis Funk, Alyson F. Lembeck, for appellee.

2. We need not consider Price’s second enumeration of error in light of our decision in Division 1.

Judgment vacated and case remanded with direction.

McMillian, J., concurs. Ray, J., concurs in judgment only.


source: Caselaw Access Project

author: Peterson, Judge.

license: Public Domain

text:
    A15A1664.
    SMITH v. THE STATE.
    (782 SE2d 306)
   Peterson, Judge.

Irvin Dexter Smith, convicted of one count of burglary and one count of theft by taking a motor vehicle, appeals from the denial of his motion for new trial. He argues that the trial court erred (1) when it replaced a juror after discovering that she was listed as a friend on Smith’s Facebook page, because there was no evidence that the juror actually knew Smith or would be biased in his favor, and (2) by preventing him from calling a witness to testify regarding the witness’s use of Facebook at the motion for new trial hearing. We conclude that the trial court did not abuse its discretion in dismissing the juror because she was connected to Smith via Facebook. We also conclude that the testimony of Smith’s witness was irrelevant to show whether Smith and the dismissed juror knew each other, and, thus, the trial court did not abuse its discretion in excluding this witness’s testimony. Accordingly, we affirm.

The record reflects that during jury selection, the State asked the members of the venire, including Juror 4, whether they knew Smith. None of the prospective jurors responded affirmatively. The selected jurors and their alternates were sworn in, and no objections to the jury were made.

During jury deliberations, the trial court received a note from the jury indicating that it was deadlocked. The trial court then gave an Allen charge to the jury.

After the jury returned to deliberate further, the State moved to replace Juror 4 because it had discovered that Juror 4 appeared as a friend on Smith’s Facebook page. The State argued that Juror 4 should be dismissed because she did not respond affirmatively when asked during jury selection whether she knew Smith. During the trial court’s inquiry, Juror 4 initially stated that she rarely used Facebook and did not believe she was friends with Smith on Facebook, but she later confirmed that her profile appeared on Smith’s Facebook page as a friend. Based on Juror 4’s answers, the trial court replaced her with an alternate. The jury subsequently returned a guilty verdict on the counts of burglary and theft by taking a motor vehicle. This appeal ensued.

1. Smith contends that the trial court erred in dismissing Juror 4 during jury deliberations because it failed to make a sufficient inquiry to establish any misconduct to warrant her removal. We disagree.

Under OCGA § 15-12-172, the trial court has discretion to replace a juror with an alternate at any time, whether before or after final submission of the case to the jury, provided the trial court has a sound legal basis to do so. Mathis v. State, 293 Ga. 837, 839 (2) (750 SE2d 308) (2013). This Court will not reverse a trial court’s decision to remove a juror from a panel absent an abuse of discretion. Armstrong v. State, 325 Ga. App. 33, 39 (5) (752 SE2d 120) (2013).

A sound basis to remove a juror

may be one [that] serves the legally relevant purpose of preserving public respect for the integrity of the judicial process. Where the basis for the juror’s incapacity is not certain or obvious, some hearing or inquiry into the situation is appropriate to the proper exercise of judicial discretion. Dismissal of a juror without any factual support or for a legally irrelevant reason is prejudicial.

State v. Arnold, 280 Ga. 487, 489 (629 SE2d 807) (2006) (citations and punctuation omitted).

Here, Smith objected to the State’s request to replace Juror 4, argued that the juror was not specifically asked whether she had a meaningful connection to Smith, and requested that the court conduct a further investigation before replacing her. The trial court questioned Juror 4, who initially stated that she rarely used Face-book and was not friends with Smith on Facebook. The trial court then dismissed Juror 4 “out of an abundance of caution,” and Smith made one more objection, asking that the trial court authenticate that Juror 4 actually appeared on Smith’s Facebook page. Juror 4 was shown the profile picture in question, and she confirmed that her profile appeared as a friend on Smith’s Facebook page. The trial court replaced Juror 4 with no further objections by Smith.

The trial court did not abuse its discretion in replacing Juror 4. Regardless of Juror 4’s reasons for failing to disclose her connection to Smith, the depth of her relationship, and whether her failure to disclose constituted misconduct, Juror 4 was connected to Smith in some fashion and her veracity on the issue was in question. See Cohen v. Baxter, 267 Ga. 422, 423 (1) (479 SE2d 746) (1997) (the trial court is in the best position to judge the credibility of the juror and, therefore, has significant discretion to retain or dismiss a juror). Consequently, the trial court did not abuse its discretion in replacing Juror 4. See Green v. State, 298 Ga. App. 301, 302 (1) (680 SE2d 156) (2009) (trial court did not abuse its discretion in removing a juror after deliberations began because the juror failed to affirmatively respond to a jury selection question, even though the juror claimed that his failure was an honest mistake); Darden v. State, 212 Ga. App. 345, 347 (4) (441 SE2d 816) (1994) (trial court did not abuse its discretion in removing a juror where the State had overlooked the juror’s attempt to indicate during jury selection that she knew the defendants). Because we conclude that the trial court did not err in replacing Juror 4, we need not consider Smith’s argument that he suffered prejudice as a result, including his argument that the alternate reduced the number of African-Americans on the panel.

2. Smith also contends that the trial court erred at the motion for new trial hearing by excluding as irrelevant the testimony of Sharon Lunsford regarding her general experience using Facebook. Smith argues that Lunsford’s testimony would establish that Facebook users may not actually know people listed as their Facebook friends and would thus tend to show that Juror 4 may not have actually known Smith.

Decided January 25, 2016.

W. Allen Adams, Jr., for appellant.

Scott L. Ballard, District Attorney, for appellee.

Relevant evidence generally shall be admissible, and relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OCGA §§ 24-4-401; 24-4-402. We review a trial court’s evidentiary ruling for an abuse of discretion. Reeves v. State, 294 Ga. 673, 676 (2) (755 SE2d 695) (2014).

Here, Smith argues only that Lunsford’s testimony about her own personal Facebook experience supported the possibility that Juror 4 may have appeared on Smith’s Facebook page without having known him. But, even if true, this is not enough. No matter what Lunsford’s personal style of using Facebook might be, her testimony regarding that style is not relevant to Juror 4’s personal style, and Smith did not attempt to elicit relevant testimony on that subject from the only person able to give it — Juror 4. Consequently, the trial court did not abuse its discretion in excluding the testimony as irrelevant.

Judgment affirmed.

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

       Facebook, one of the most popular social networking websites, allows users to create profiles, join networks, and “friend” other users. Registered users create and customize their own user profiles by adding content, including personal information, content related to their interests, and photographs and other media, which can then be shared with other Facebook users. See generally Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659, 662 (D.N.J. 2013) (providing further background on using Facebook).

       Although Smith mentions the racial composition of the panel in the context of prejudice, he does not assert any independent claim regarding that composition, whether under Batson v. Kentucky, 476 U.S. 79 (106 SCt 1712, 90 LE2d 69) (1986), or otherwise.


text:
    A15A1883.
    JACKSON v. THE STATE.
    (782 SE2d 287)
   Peterson, Judge.

Leandrew Jackson appeals his convictions for four counts of aggravated assault, two counts of armed robbery, and one count of burglary. He raises three enumerations of error: (1) the trial court erred by letting a witness make an in-court identification of him; (2) there was insufficient evidence to support his convictions; and (3) the trial court erred in issuing a modified Allen charge stating that “the case will not go away with a hung verdict.”

We find these arguments to be without merit and affirm. Although Jackson complains that the witness should not have been permitted to identify him at trial due to various factors, including that the witness identified someone else as the perpetrator in a police photo lineup shortly after the crime, challenges to in-court identifications go to the weight and credibility, not the admissibility, of the identification. A thorough review of the record shows sufficient evidence to uphold Jackson’s convictions. Finally, the judge’s comment in giving the Allen charge is not cause for reversal because Jackson did not preserve his objection and the remark did not constitute error.

The charges against Jackson were based on two separate incidents. The trial evidence showed that in the first incident, on the evening of December 1, 2011, Charles Mapp was performing his duties as a driver for a Medicaid transportation service. Mapp had just dropped off his last client for the day and was getting back into his van when he noticed two men approaching his vehicle from behind. The two men told Mapp to “give it up,” and one produced a gun. Mapp tried to give them what he had in his pockets: change, his wallet, and his cell phone. The men pulled Mapp out of the van, and kicked and punched him. One struck him over the head with the gun.

On December 5, 2011, police showed Mapp a photo lineup that did not contain a photo of the defendant. He circled one of the photos, indicating he was 80 percent sure that person was the man who had wielded the gun. The person he identified was not involved in the incident. At the 2013 trial in this case, Mapp identified Jackson as the person with the gun. Jackson’s trial counsel objected to Mapp’s in-court identification of Jackson, saying, “There’s been no foundation that he’s identified anybody before,” but the trial court overruled him. A crime scene investigator also testified at trial, saying that a fingerprint found on the interior side of the driver’s side window of Mapp’s van was left by Jackson.

The evening after Mapp was accosted, Donald Rooks and Stacy Allgood were working at a customer’s townhome, performing carpet repair and cleaning. When Rooks went downstairs to get equipment, a man attacked him with a hammer. A second man appeared, struck Rooks in the head with a gun, and pointed the gun at Rooks’ face. Rooks threw his wallet, from which one of the men took five dollars. Rooks was not able to identify either of the two men.

At some point, hearing Rooks calling for help, Allgood came downstairs and saw Rooks scuffling with the man with the hammer. Someone struck Allgood in the back of the head with what Allgood believed was a gun. Rooks’ initial attacker struck Allgood in the head with a hammer. The man with the gun told Allgood to empty his pockets, turning the gun toward himself so that Allgood could see the size of the gun. Allgood refused, explaining later that he had “a pretty good bit of money” in there. The second man again hit Allgood in the head with a gun.

Allgood did not identify anyone as his attacker in an initial police photo lineup on December 5,2011, but he was able to identify Jackson in a similar photo lineup the following month, saying he was 87 percent sure. At trial, Allgood identified Jackson as the man with the gun. He testified that his lack of certainty during the second photo lineup was due to not knowing the height of the person in the photo or whether the person who attacked him was part of the photo lineup. He testified that he was sure of his identification at trial based on Jackson’s eyes.

Based on the Mapp incident, Jackson was indicted for armed robbery and aggravated assault. Based on the incident at the town-home, the indictment charged Jackson with armed robbery, burglary, and three counts of aggravated assault. A jury found Jackson guilty on all charges.

1. Because Jackson’s sufficiency argument is based in part on his argument that the trial court erred in letting Mapp make an in-court identification, we first address the issue of the identification. Jackson argues that the trial court erred in allowing Mapp to make an in-court identification that was “unnecessarily suggestive and conducive to irreparable mistaken identification” because Mapp was unable to get a good look at his assailants and he identified another individual as his attacker in a police photo lineup that took place four days after the incident. Jackson’s argument is without merit.

The admission of pretrial identification procedures like police photo lineups is subject to court review for reliability, considering factors such as the witness’s opportunity to view the defendant at the time of the crime. See Neil v. Biggers, 409 U.S. 188, 199 (93 S. Ct. 375, 34 LE2d 401) (1972). However, appellate courts do not review in-court identifications in this manner, as they occur under the immediate supervision of the trial court. See Ralston v. State, 251 Ga. 682, 683 (2) (309 SE2d 135) (1983). “Challenges to in-court identifications must be made through cross-examination.” Hunt v. State, 279 Ga. 3, 4 (2) (608 SE2d 616) (2005) (citation omitted). Jackson’s challenges to Mapp’s in-court identification, including the inconsistency in Mapp’s in-court and pretrial identifications, go to the weight and credibility of Mapp’s testimony, not to its admissibility. See Sherman v. State, 225 Ga. App. 869, 872 (2) (485 SE2d 557) (1997). See also Pitts v. State, 323 Ga. App. 770, 772 (1) (747 SE2d 699) (2013) (problematic aspects of an in-court identification go to the witness’s credibility, which is solely a question for jury determination). “Aline-up identification, or identification from a group of photographs, is not a prerequisite to every in-court identification.” Ralston, 251 Ga. at 684 (2) (quoting Puckett v. State, 233 Ga. 449, 451 (211 SE2d 740) (1975)). Given that Jackson’s counsel had the opportunity to cross-examine — and, indeed, did cross-examine — Mapp about his in-court identification of Jackson and his failure to identify him in the pretrial photo lineup, the admission of the in-court identification is not cause for reversal.

2. Jackson challenges all seven of his convictions as unsupported by sufficient evidence. When appellate courts review the sufficiency of the evidence, they do not “re-weigh the evidence or resolve conflicts in witness testimony’ but instead defer “to the jury’s assessment of the weight and credibility of the evidence.” Greeson v. State, 287 Ga. 764, 765 (700 SE2d 344) (2010) (citation omitted). We apply the standard of Jackson v. Virginia, 443 U.S. 307, 319 (99 S. Ct. 2781, 61 LE2d 560) (1979), determining 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).

Count 1 charged Jackson with armed robbery of Mapp. OCGA § 16-8-41(a) provides that a person commits armed robbery when, “with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon[.]” Count 2, also arising from the incident involving Mapp, charged Jackson with aggravated assault, which under OCGA § 16-5-21 (b)(2) is predicated on a person assaulting another with a deadly weapon or any object that, “when used offensively against a person, is likely to or actually does result in serious bodily injury[.]” Jackson bases his challenges to these two counts on the notion that Mapp’s identification of him should be excluded, but, as explained above, the admission of this evidence was not improper. Given that “[t]he testimony of a single witness is generally sufficient to establish a fact,” OCGA § 24-14-8, Mapp’s testimony was sufficient to support the convictions on Counts 1 and 2. The State also introduced evidence that Jackson’s fingerprint was found on Mapp’s van, supporting its case that Jackson was one of the men who accosted Mapp. In the light of this evidence, the jury was authorized to find that Jackson committed both armed robbery and aggravated assault on Mapp.

The other convictions turn on Allgood’s identification of Jackson as the man with the gun. Although Jackson does not challenge the admissibility of Allgood’s in-court identification of him, he claims that the evidence against him is insufficient because Rooks was unable to identify him and Allgood initially failed to identify him in a police photo lineup and expressed some uncertainty in identifying him in a second photo lineup. However, as noted above, the testimony of a single witness is generally sufficient to establish a fact. OCGA § 24-14-8. Allgood’s identification of Jackson as the man with the gun, coupled with Rooks’ description of events, is sufficient evidence to authorize the jury’s verdict of guilty on the charges stemming from the townhouse incident, including burglary. See OCGA § 16-7-l(b) (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).

3. Jackson also argues that the trial court erred in issuing a modified charge under Allen v. United States, 164 U.S. 492 (17 S. Ct. 154, 41 LE 528) (1896). He complains about one particular remark the judge made to the jury. During its deliberations, the jury asked multiple questions, including asking for equipment to listen to the recording of one of the 911 calls that had been put into evidence and also asking if it might review a witness’s testimony. The judge allowed the 911 call to be played for the jury in the courtroom and denied the jury’s request to review the witness’s testimony. Sometime later, after the jury had deliberated for two-and-a-half hours in the morning and an hour and thirty-five minutes in the afternoon, the jury indicated that it had reached a guilty verdict on two of the seven counts but was hung 11-1 on the other five. Defense counsel said he was against an Allen charge, but the trial court decided to give one at the prosecutor’s request.

While giving the Allen charge, the trial court said, “I want you to take a look at it, because we spent a day and a half trying it. These cases, the case will not go away with a hung verdict. There are many ways it can go away, jury verdict is one and there are many other ways.” The judge continued with some additional remarks before sending the jury out to resume deliberations. The judge then asked whether there were any “exceptions to the, quote, hung jury charge as given by the Court,” to which defense counsel replied, “No exception, Your Honor.” The jury subsequently returned guilty verdicts on the remaining counts. It is not clear from the record how long jurors continued to deliberate after receiving the Allen charge, but it appears to have been less than one hour and eighteen minutes, perhaps considerably less. At defense counsel’s request, the judge polled the jurors, with each affirming his or her assent to the verdict.

On appeal, Jackson complains that the trial court’s comment that the case would not “go away” placed undue pressure on the holdout juror. He argues that the extra comment conveyed the judge’s opinion that there was enough evidence to retry the case and possibly implied that a guilty verdict was inevitable. Considered along with other factors, the defense argues, the judge’s comment was coercive.

We are constrained in our review of the judge’s comment, however, given that the defendant failed to lodge any specific objection to it. Asked by the judge whether he took any exceptions to the Allen charge, Jackson’s counsel said he had none. Georgia law requires a criminal defendant to inform the court of any specific objection to a jury instruction and the grounds for such objection before the jury retires to deliberate. See Carruth v. State, 290 Ga. 342, 347 (6) (721 SE2d 80) (2012). Otherwise, appellate review is precluded under OCGA § 17-8-58(b) “unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.” See id. (applying plain error review where defendant objected at the charge conference when the court informed counsel it would not give a requested instruction on mutual combat but failed to object to the actual jury charge as given). Our court has applied plain error review under OCGA § 17-8-58(b) when a defendant did not object to the content of the Allen charge. See Callaham v. State, 317 Ga. App. 513, 515 (1) (732 SE2d 88) (2012). Under that standard, the court must consider “whether the instruction ... was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.” Id. (quoting State v. Kelly, 290 Ga. 29, 33 (1) (718 SE2d 232) (2011)). If it answers all three of these questions in the affirmative, the appellate court may reverse “if the error seriously affects the fairness, integrity, or public reputation of the proceedings below.” Id.

Here, the judge’s comments do not constitute error at all. In considering whether the remarks were erroneous, the court is to consider “whether the Allen charge..., considered as a whole, was so coercive as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.” Id (quoting Humphreys v. State, 287 Ga. 63, 81 (9) (b) (694 SE2d 316) (2010)). Here, the bulk of the instruction largely tracked the State’s pattern charge. Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2015), § 1.70.70 (hung jury). The trial court added some additional remarks, including that complained of here by Jackson. But those additional remarks urged jurors to follow their consciences and assured them that a hung verdict was an acceptable outcome. Looking at the Allen charge as a whole, it is notable that the trial court told jurors:

• “If you can’t come out in a unanimous agreement and say, answer those questions that, yes, this is my verdict, it was my verdict in the jury room, it’s my verdict now, I don’t want somebody to roll over if they can’t come out here and tell me that, because that means they’ve simply acquiesced to the others.”
• “I am counting on my foreperson to report out to me if, in fact, he feels at any time that communications have broken down to the point that continued deliberations are fruitless. And if that’s in five minutes, so be it.”
• “Essentially, whatever your verdict is, it needs to speak the truth; and if eleven to one speaks the truth for each of you, I’m all right with that.”
• “I’ll ask you to continue deliberations until the foreperson tells me either we have a verdict, or he does not feel that it would be fruitful to continue deliberating. And I’ll leave that up to y’all.”

Most importantly, far from indicating that a guilty verdict was inevitable, the judge immediately clarified what he meant when he said the case would not “go away” with a hung verdict, explaining that a jury verdict was just one of the ways a case could “go away.” Cf. Burchette v. State, 278 Ga. 1, 2-3 (596 SE2d 162) (2004) (disapproving as inaccurate use of language in prior pattern charge for hung juries that said, “[T]his case must be decided by some jury selected in the same manner this jury was selected and there is no reason to think a jury better qualified than you would ever be chosen,” while affirming the defendant’s conviction on the basis that the remark was not impermissibly coercive within the context of “an otherwise balanced and fair Allen charge”).

Jackson argues that the Allen charge constituted coercion in the light of the relatively short time the jury deliberated, the serious questions that they had posed to the judge, and the fact that only one juror was a holdout against the verdict. However, the length of deliberations alone does not make an Allen charge coercive. Gamble v. State, 291 Ga. 581, 584 (5) (731 SE2d 758) (2012). Our Supreme Court also has found that circumstances did not suggest coercion in a case with a similar timeline of deliberations and in which the jury had reached verdicts on some charges but was divided 11-1 on one charge. Drayton v. State, 297 Ga. 743, 749 (2) (b) (778 SE2d 179) (2015). We fail to see how the jurors’ questions — indicating they were taking their task seriously — suggest the instruction was coercive. In sum, we cannot say the judge’s comment created an impermissibly coercive charge or otherwise amounted to any sort of error.

Judgment affirmed.

Doyle, C. J., and Phipps, P. J., concur.

Decided January 25, 2016.

Christine M. McDonald, for appellant.

James L. Wright III, District Attorney, Amanda R. Flora, Assistant District Attorney, for appellee.

       Jackson does not cite OCGA § 17-8-57, which declares it “is error for any judge, during any phase of any criminal case, to express or intimate to the jury the judge’s opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused.” The complained-of remark did not constitute an expression of opinion as to the facts of the case or the defendant’s guilt.


author: Doyle, Chief Judge.

text:
    A15A1987.
    NILOY & ROHAN, LLC v. SECHLER.
    (782 SE2d 293)
   Doyle, Chief Judge.

Niloy & Rohan, LLC (“N&R”) and Chuck Sechler were equal members of a limited liability company that purchased land and built and sold condominium units. After a dispute arose as to the distribution of revenue, N&R sued Sechler, and following a bench trial, the trial court found that Sechler had breached both his contract with and fiduciary duty to N&R by improperly and prematurely distributing company funds to himself and his brokerage firm without first paying the company’s creditors. The trial court nonetheless held that N&R was not entitled to recover monetary damages because N&R failed to prove that it, as opposed to other creditors not party to the lawsuit, actually suffered damages from Sechler’s contractual and fiduciary breaches and, alternatively, that any damage recovery was barred by the parties’ modification through conduct of the contractual terms under which they operated. N&R appeals, arguing that the trial court erred by holding that it did not prove that it suffered actual damages and by holding that a mutual departure from the contract precluded its damage recovery. For the reasons that follow, we affirm in part and vacate in part the trial court’s judgment and remand the case to the trial court for proceedings consistent with this opinion.

In the appellate review of a bench trial, this Court will not set aside the trial court’s factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses. The standard by which findings of fact are reviewed is the “any evidence” rule, under which a finding by the trial court supported by any evidence must be upheld. However, we apply a de novo standard of review to any questions of law decided by the trial court.

So viewed, the record shows that N&R is a family-owned LLC managed by Chuck Thakkar, and Sechler is a real estate broker with his own separate real estate brokerage firm known as New South Properties, LLC (“New South”). In 2004, N&R and Sechler formed Steve Reynolds Partnership, LLC (“SRP”). The purpose of SRP was to purchase raw land, develop the property, build office condominiums, and sell the office condominiums (the “Project”). N&R advanced funding for the Proj ect, and Sechler was responsible for managing the company’s operations, including marketing and selling the condominium units through New South as they were built.

In conjunction with this business venture, N&R and Sechler executed a contract pursuant to which N&R agreed to loan SRP up to $2,000,000 for the construction and development of the Project (the “Operating Agreement”). The Operating Agreement provided that the loan was to be evidenced by a note and conditioned on N&R and Sechler each executing a personal guaranty for 50 percent of the loan amount; however, it is undisputed that no such documents actually were prepared or executed.

As the Project continued, Thakkar provided additional funding well beyond the initial $2,000,000 loan. Thakkar used not only N&R for the Project funding, but also provided funds from several of his other business entities. Indeed, from August 2003 through October 2012, Thakkar’s various companies paid $8,515,495.97 toward the Project, only $1,387,289.79 of which was paid by N&R.

Sechler administered the marketing and sale of each condominium unit as it was completed. As SRP’s manager and the real estate broker on the transactions, Sechler controlled all funds received from closings. Pursuant to the terms of the Operating Agreement, Sechler was responsible on behalf of SRP for preparing a budget, keeping accurate books, convening quarterly meetings, preparing quarterly profit and loss statements, issuing yearly balance sheet reports, and providing N&R access to all financial information. He failed to perform any of these obligations, and, prior to the events leading to this lawsuit, there was no evidence that N&R ever demanded that he do so.

The Operating Agreement further required that all proceeds from the closings of the properties were to go first toward payment of SRP’s expenses, then toward payment of SRP’s outstanding debts and liabilities, and only then were the remaining proceeds to be divided equally between the parties. Under this structure, Thakkar’s various funding entities, including N&R, would be considered SRP creditors and would be repaid before any funds were distributed to the parties.

According to Sechler, in 2006, he and Thakkar agreed that, contrary to the terms of the Operating Agreement, they would apply 65 percent of each condominium’s net sale proceeds to the expenses and outstanding debt and would split the remaining 35 percent equally. There was evidence presented at trial that each party received $778,504.73 pursuant to this formula. Although Sechler characterized these payments to himself as “profit,” he maintained that the payments to N&R were intended as loan repayments.

Beginning in 2008, condominium sales slowed and ultimately ceased. Sometime thereafter, N&R requested an accounting, and Thakkar, realizing that the Project faced a significant shortfall in revenue, consulted with Sechler in an attempt to resolve SRP’s outstanding debt. Sechler initially denied any shortfall, then acknowledged the outstanding balance owed but challenged N&R’s accounting. Ultimately, however, he failed to produce any evidence to contradict N&R’s accounting and stipulated to its accuracy.

When the parties failed to reach a resolution as to the treatment of the outstanding debt, N&R filed the instant lawsuit against Sechler, alleging breach of contract and breach of fiduciary duty based upon Sechler’s treatment and distribution of proceeds from the condominium sales. N&R sought to recover one-half of all investments made to the Project from Thakkar’s various entities.

During the ensuing bench trial, the stipulated accounting showed that SRP had an outstanding principal debt somewhere between $1.8 million and $2.6 million that was owed to Thakkar’s various entities. Despite that outstanding debt, Sechler had paid himself $899,465.85 in sale proceeds and paid New South an additional $384,264.07 in improper commissions and fees. Noting that Sechler continued to classify payments to himself as “profit” distributions, but payments to N&R and Thakkar and/or his other entities as loan repayments, the trial court held that Sechler’s distribution of the sale proceeds both violated the terms of the Operating Agreement and constituted a breach of his fiduciary duty of good faith and loyalty to N&R.

The trial court nonetheless declined to award damages to N&R. Because neither SRP nor any of Thakkar’s other loaning entities were party to the lawsuit, the court held that N&R had failed to establish that monies representing the outstanding debt were advanced from itself, as opposed to one of Thakkar’s other various entities. Further, the trial court held that, to the extent that the terms of the Operating Agreement were not followed, the parties had mutually departed from the terms of the contract through years of agreed-upon conduct; therefore N&R could not recover a damage award based upon the breach of its provisions. The trial court expressly noted that its holding did not prevent any of Thakkar’s other various entities from asserting a claim against Sechler or SRR

1. N&R challenges the trial court’s holding that it failed to prove, and therefore was not entitled to recover, damages. Its argument on this front is two-fold. First, N&R contends that the trial court’s ruling amounts to a finding that SRP and Thakkar’s other business entities were indispensable parties to the lawsuit, a conclusion which it disputes. Second, N&R argues that the stipulated accounting record proves that its loan was not repaid and establishes that it was, in fact, damaged by Sechler’s wrongful conduct. We will address each argument in turn.

(a) Proof of damages is an essential element to both a claim for breach of contract and a claim for breach of a fiduciary duty. A failure to prove damages is fatal to a plaintiff’s claim.

The stipulated accounting shows that the Project was funded through six of Thakkar’s various business entities, one of which was N&R. While those various entities loaned SRP a total of $8,515,495.97 toward the Project over a period of years, N&R advanced only $1,387,289.79 ofthat total. Over the course ofthe Project, SRP repaid a total amount of $6,660,484.82 of the monies loaned to it.

The trial court did not err by holding that N&R, the sole named plaintiff to the lawsuit, was entitled to recover only those damages that it proved it suffered as a result of Sechler’s wrongful conduct, i.e., the funds that it — not another Thakkar entity — loaned to the Project that should have been repaid before profits to Sechler were distributed. The trial court’s holding does nothing more than require N&R to establish a prima facie case of breach of contract and breach of fiduciary duty; any argument by N&R that the trial court’s ruling was based upon a finding that certain entities were indispensable parties to the lawsuit is misplaced.

(b) N&R contends that the trial court erred by holding that it failed to prove that SRP’s unpaid debt included funds that had been loaned specifically by N&R. In light of the stipulated accounting, we agree.

The accounting stipulated by the parties and relied on by the trial court shows that while N&R loaned $1,387,289.79 to SRP, only $189,531.69 of the more than $6.6 million funds repaid were diverted to N&R. It follows that the undisputed evidence establishes that N&R has an outstanding loan balance of $1,197,758.10, and the trial court erred by holding otherwise.

2. The trial court explicitly found that Sechler breached his fiduciary duty to N&R “by paying himself‘profit’ distributions when no such ‘profit’ existed for SRP” and by paying New South unauthorized commissions and fees without the approval of N&R. But in addition to holding that N&R failed to prove damages to itself, the trial court held that the parties’ mutual departure from the terms of the Operating Agreement and N&R’s failure to give notice of its intention to rely on the contract terms precluded N&R’s recovery of damages.

Under Georgia law, the doctrine of mutual departure is a defense to a breach of contract action. Nevertheless, a managing member of an LLC owes a fiduciary duty to both the LLC and any other company member that is independent from his or her contractual duties. As such, a breach of that duty may give rise to liability separate and apart from that stemming from a contractual breach.

Decided January 25, 2016.

Robbins Ross Alloy Belinfante Littlefield, Jeremy U. Littlefield, Craig G. Kunkes, for appellant.

In light of our holding in Division 1 (b) that the stipulated accounting proves that N&R’s loan to SRP was not fully repaid during the time that Sechler was improperly distributing company funds to himself and his brokerage firm, we remand this case to the trial court in order to consider whether N&R is entitled to recover damages for Sechler’s breach of his fiduciary duty to N&R and, if so, in what amount. In so doing, we note that the defense of mutual departure from the contractual terms of the Operating Agreement does not necessarily preclude such a recovery.

On remand, if the trial court awards damages to N&R, it should consider whether a recovery of any portion of those damages is barred by the statute of limitation. “Georgia has no specific statute of limitation for breach of fiduciary duty claims. Instead, we examine the injury alleged and the conduct giving rise to the claim to determine the appropriate statute of limitation.” We further note that “the statute of limitation for a cause of action for breach of fiduciary duty is triggered by a wrongful act accompanied by any appreciable damage,” and that “each act of alleged breach of fiduciary duty that causes damage creates a new cause of action for that specific act.” To the extent that N&R’s breach of fiduciary duty claims arise out of the Operating Agreement, a six-year statute of limitation would apply.

Judgment affirmed in part and vacated in part, and case remanded.

Phipps, P. J., and Rickman, J., concur.

Mitchell & Shapiro, William R. Joiner, for appellee.

       (Citation and punctuation omitted.) Schick v. Bd. of Regents of the Univ. System of Ga., 334 Ga. App. 425, 425-426 (779 SE2d 452) (2015).

       The calculation of the outstanding principal balance depends upon whether the $778,504.73 payment made pursuant to the modified agreement represents a loan repayment or a profit distribution. The trial court held that the distribution constituted a payment on the loan, although there are some inconsistent references to SRP’s outstanding principal debt in the order. In light of the remand to reconsider damages in this case, we need not resolve this issue.

       Of that total, the trial court characterized $778,504.73 as “profit distributions” and $120,961.12 as an “improperly retained payment” for a specific condominium unit.

       “The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.” (Punctuation omitted.) Norton v. Budget Rent A Car System, 307 Ga. App. 501, 502 (705 SE2d 305) (2010). See OCGA § 13-6-1 (“Damages are given as compensation for the injury sustained as a result of the breach of a contract.”).

       “Establishing a claim for breach of fiduciary duty requires proof of three elements: (1) the existence of a fiduciary duty; (2) breach of that duty; and (3) damage proximately caused by the breach.” (Punctuation omitted.) Wells Fargo Bank v. Cook, 332 Ga. App. 834, 842 (1) (b) (775 SE2d 199) (2015).

       See Corrosion Control v. William Armstrong Smith Co., 157 Ga. App. 291, 292 (277 SE2d 287) (1981) (“In a suit for damages for breach of contract, the plaintiff must allege and prove both the breach and the damage . ...”); see Conner v. Hart, 252 Ga. App. 92, 94-95 (1) (a) (555 SE2d 783) (2001) (affirming the trial court’s grant of directed verdict to defendant based on plaintiff’s failure to establish damages flowing from her business partner’s alleged breach of fiduciary duty).

       See OCGA § 13-4-4 (“Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given to the other of intention to rely on the exact terms of the agreement. The contract will be suspended by the departure until such notice.”); Morrison v. Roberts, 195 Ga. 45, 46 (2) (23 SE2d 164) (1942) (“[W]here parties, in the course of the performance of a contract, depart from its terms and pay or receive money under such departure, a modification by way of a quasi new agreement will be implied . . . .”).

       See OCGA § 14-11-305 (1) (“In managing the business or affairs of a limited liability company... [a] member or manager shall act in a manner he or she believes in good faith to be in the best interests of the limited liability company and with the care an ordinarily prudent person in a like position would exercise under similar circumstances.”); Internal Medicine Alliance v. Budell, 290 Ga. App. 231, 236 (4) (659 SE2d 668) (2008) (“Managing members of [an] LLC owe fiduciary duties to the LLC and its member investors.”).

       See OCGA § 14-11-305 (4) (“[A] member or manager has [certain] duties (including fiduciary duties) and liabilities relating thereto to a limited liability company or to another member or manager....”); Northwest Plaza v. Northeast Enterprises, 305 Ga. App. 182, 191-192 (8) (b) (699 SE2d 410) (2010) (“It is axiomatic that a single act or course of conduct may constitute not only a breach of contract but an independent tort as well, if in addition to violating a contract obligation it also violates a duty owed to plaintiff independent of contract to avoid harming him.”) (punctuation omitted).

       Godwin v. Mizpah Farms, 330 Ga. App. 31, 38 (3) (b) (766 SE2d 497) (2014).

       (Punctuation omitted.) Id. at 39 (3) (b).

       Id.

       See id. (applying a six-year limitation period for breach of fiduciary duty claims arising out of a partnership dispute and citing cases in support).


author: ANDREWS, Presiding Judge.

text:
    A15A2166.
    AAMES PLUMBING & HEATING, INC. v. SHUFORD.
    (782 SE2d 298)
   ANDREWS, Presiding Judge.

Aames Plumbing & Heating, Inc. (Aames), commenced this action against Sharon Shuford seeking payment for plumbing services performed in October 2011. Shuford defended on the basis she was fraudulently induced to agree to the work done by Aames, and she also asserted a counterclaim for fraud. The trial court originally granted summary judgment for Aames on Shuford’s fraud defense and counterclaim, but this Court reversed in Shuford v. Aames Plumbing & Heating, 327 Ga. App. 844 (761 SE2d 395) (2014).

Following trial, the jury returned a verdict for Shuford on Aames’s breach of contract claim. The jury also returned a verdict for Shuford on her counterclaim for fraud, but awarded her zero actual damages. The jury did, however, award Shuford $16,000 attorney fees. This second appeal in the case followed the trial court’s denial of Aames’s motion for judgment notwithstanding the verdict.

1. Aames contends that because no actual damages were awarded on Shuford’s counterclaim for fraud, the jury’s award of $16,000 attorney fees was unauthorized. We agree. Where a jury awards a defendant zero damages on a counterclaim for fraud, litigation expenses are not recoverable. Gardner v. Kinney, 230 Ga. App. 771 (498 SE2d 312) (1998).

2. Aames also contends that the trial court erred in failing either to direct a verdict for it or grant judgment notwithstanding the verdict, because Aames had proven its contract claim and Shuford had not proven every element of her fraud defense and counterclaim based on fraud.

The evidence adduced at trial essentially tracked the evidence as summarized in the earlier appeal in this case, Shuford v. Aames Plumbing & Heating, supra, and will not be repeated here. In that earlier appeal, we concluded the evidence was sufficient to create an issue of fact for every element of a fraud defense. In particular, regarding the fraud defense, we determined that Shuford’s potential contractual obligation itself met the requisite element of detriment. Id. at 850. Thus, as compelling a case as Aames presented in support of its contract with Shuford, in light of this Court’s previous determination, as well as the evidence adduced at trial creating a factual issue regarding Shuford’s fraud defense, the trial court properly declined to direct a verdict or judgment notwithstanding the verdict for Aames.

Decided January 25, 2016.

Busch, Reed & Jones, Jeffrey S. Leeper, Cory C. Close, for appellant.

W. Shepard Helton, for appellee.

Judgment affirmed in part and reversed in part.

Miller, P. J., and Branch, J., concur.


author: DOYLE, Chief Judge.

text:
    A15A2358.
    MUTTALIB v. THE STATE.
    (782 SE2d 300)
   DOYLE, Chief Judge.

After a bench trial, Ismail Jamil Muttalib was found guilty of possession of methamphetamine, possession of tools for the commission of a crime, possession of less than one ounce of marijuana, two counts of giving false information to a law enforcement officer, and speeding. Following the denial of his motion for new trial, Muttalib argues on appeal, and the State agrees, that the evidence was insufficient to support his conviction for possession of tools for the commission of a crime because it is inconsistent with the trial court’s acquittal on the charge of possession of methamphetamine with intent to distribute. For the reasons that follow, we reverse.

Viewed in the light most favorable to the verdict, the evidence shows that on March 1,2014, Officer Cal Scarborough was patrolling Interstate 75 when he witnessed a vehicle traveling 87 miles per hour in a 70-mile-per-hour zone. Officer Scarborough effected a stop of the vehicle, and when he approached the driver’s side window, he noticed the smell of raw marijuana.

The driver initially gave his name as Santreece Bernard Howard and a date of birth, which information the officer ran in the database, but the information returned a photograph that did not match the driver, who claimed not to have a license. Moreover, Officer Scarborough had attended high school with the driver, whom he knew as Ismail Muttalib. Officer Scarborough asked Muttalib to exit the vehicle, and he questioned him about giving the false name. Muttalib explained that there was a warrant for his arrest in Atlanta; when questioned about the raw marijuana smell, Muttalib stated that he had smoked a joint earlier in the evening.

Officer Scarborough then spoke with the front-seat passenger, who was the owner of the vehicle, and she stated she was unaware of any marijuana in the vehicle. Because Officer Scarborough smelled marijuana, he conducted a search of the vehicle; he discovered inside an eyewear case in a purse in the front seat passenger floorboard less than an ounce of marijuana and 7.22 grams of suspected methamphetamine, which was packaged in two separate baggies. Officer Scarborough also discovered in the trunk a digital scale. He arrested Muttalib and the other two passengers.

Muttalib testified at trial that he did not intend to distribute the methamphetamine to anyone, and the reason he had it in two separate bags was to have some in powder form for easy access as compared to the main solid amount.

Based on the fact that the scales were found in the trunk of the car, and because the State failed to present any evidence as to the normal amount of methamphetamine an addict consumes in a day as compared to the amount discovered in the vehicle, the trial court, sitting as the factfinder, determined that the State had not proved beyond a reasonable doubt that Muttalib possessed the methamphetamine with intent to distribute, finding him guilty instead of the lesser included charge of possession of methamphetamine. The trial court found him guilty of all other charges.

Muttalib argues, and the State agrees, that there was insufficient evidence to support a guilty verdict for possession of tools for the commission of a crime because the trial court sitting as factfinder determined that there was no evidence of intent to distribute methamphetamine. Accordingly, as argued by both Muttalib and the State, no rational trier of fact could have convicted Muttalib of possession of tools for the commission of a crime as indicted — Muttalib “unlawfully ha[d] in his possession a set of digital scales, a device commonly used in the commission of Possession of Methamphetamine with Intent to Distribute, with the intent to make use of said tools in the commission of said crime . . . .”

Decided January 25, 2016.

David J. Walker, for appellant.

Denise D. Fachini, District Attorney, Lauren T. Warbington, Assistant District Attorney, for appellee.

As a general rule, a guilty verdict cannot be challenged on the ground that the jury’s verdict of guilt on one count of an indictment is inconsistent with an acquittal on another count. Such verdicts are deemed constitutionally tolerable because they may reflect an exercise of lenity by the jury that is not necessarily grounded in its view of the evidence.

We have discovered no case law establishing that jury trials are excepted from the general rule allowing inconsistent verdicts. Nevertheless, as indicted here and based on the trial court’s explicit statements in the record, the guilty verdict for possession of tools with the intent to distribute methamphetamine cannot stand. “An exception to the inconsistent verdict rule exists when the appellate record makes transparent the jury’s reasoning why it found the defendant not guilty of one of the charges.” The trial court specifically found that the State failed to prove beyond a reasonable doubt that Mut-talib possessed the methamphetamine with intent to distribute, thereby making it clear that the State also failed to establish beyond a reasonable doubt that Muttalib possessed the digital scale with the intent to commit the crime of possession of methamphetamine with intent to distribute and requiring reversal of the conviction for possession of tools for the commission of a crime.

Judgment reversed.

Phipps, P. J., and Peterson, J., concur.

       OCGA § 16-13-30 (a).

       OCGA § 16-7-20 (a).

       OCGA § 16-13-30 (j) (1).

       OCGA § 16-10-25.

       OCGA § 40-6-181 (b).

       Muttalib does not challenge the remaining five counts of conviction, and therefore, the appeal does not address those convictions.

       See Harris v. State, 328 Ga. App. 852, 852-853 (763 SE2d 133) (2014).

       (Emphasis supplied.)

       (Citations omitted.) State v. Springer, 297 Ga. 376, 377 (1) (774 SE2d 106) (2015).

       (Punctuation omitted.) Smith v. State, 304 Ga. App. 708, 711 (3) (699 SE2d 742) (2010), overruled on other grounds by Reed v. State, 291 Ga. 10, 14 (3) (727 SE2d 112) (2012).

       Compare with Smith, 304 Ga. App. at 711 (3); Artis v. State, 299 Ga. App. 287, 292-293 (5) (682 SE2d 375) (2009).


author: Boggs, Judge.

text:
    A15A2398.
    LIDY v. THE STATE.
    (782 SE2d 302)
   Boggs, Judge.

A jury found Maurice Lidy III guilty on two counts of felony obstruction and one count each of aggravated battery and criminal trespass. On appeal, Lidy asserts that the evidence was insufficient to sustain his aggravated battery conviction, and that the trial court erred in failing to merge the two obstruction counts for sentencing. We affirm but remand this case for resentencing.

So viewed, the evidence showed that officers arrived at a storm-damaged hotel closed for business but under repair, to find Lidy and another man occupying one of the rooms where the door had been pried open. The two men were placed under arrest for criminal trespass. When a police lieutenant handcuffed Lidy behind his back, Lidy “became agitated about why he was being arrested.... [H] e kept getting louder and louder.” The assistant police chief instructed the lieutenant to place Lidy in the patrol car. At this point, Lidy began screaming and displayed “nervous energy movement.” The chief then joined the lieutenant to escort Lidy to the patrol car with both the chief and the officer having “a hold of [Lidy]” by his elbows on each side of him. As they walked, Lidy “kept getting faster and faster .... He wouldn’t slow down.” The lieutenant and the chief then put Lidy “over the handrail... to try to get him to slow down. Once we did that is when the scuffle started.”

According to the lieutenant, Lidy “jerked back” and he lost his grip on Lidy. The three of them “wound up getting turned back around” away from the patrol car. The tussling lasted only seconds. The lieutenant testified that when he again regained his hold on Lidy, he heard the chief say “he’s broke my leg.” The lieutenant placed Lidy on the ground, and a third officer came to assist. Lidy then complained that the officers broke his left wrist. The third officer looked down and noticed that Lidy had “turned his wrist in the cuff,” which explained why he was screaming in pain. Another officer removed Lidy’s handcuffs.

The hotel manager testified that Lidy “was kind of [sic] was not listening to anything. He was just screaming and crying and was tried [sic] to pull his hand from the handcuff.” He stated further that Lidy was bleeding “because he was just like pulling so hard and an officer tried to explain, saying to just cool down. And just they was [sic] trying to help him to remove that, but he was just forcing even worse.” The third officer, still with the other man found in the hotel room, testified that he “heard a bunch of screaming and yelling .... I looked down and as I did, I saw Mr. Lidy throw himself backwards against [the chief] and [the lieutenant].” He stated further that Lidy “looked like he pushed back on his feet,” and that after that “[a] struggle started.” As he secured the second man, this officer then turned and heard the chief yell out that Lidy broke his leg: “And I looked back and I could see [the chief] and he looked like he was in obvious pain.”

The chief testified that when Lidy was placed in handcuffs and told he was under arrest for criminal trespass, “he went from nervousness to anger instantaneously.” The chief used his “hinged handcuffs” to handcuff Lidy and used the “finger test” to make sure he could get his index finger in and out — an indication that the handcuffs were not on too tight. He explained that he had one hand close to Lidy’s left wrist and one hand on his left elbow, and that the lieutenant was on Lidy’s other side with at least one hand on him. The chief stated further that as the three of them walked toward the patrol car, Lidy would stop, look over his left shoulder at the chief and argue that he had no right to put him in jail. He explained that as Lidy was

pushing backwards to keep from going towards the patrol car, I took the hand that I already had near the handcuffs and reached down, and it’s been explained here in court before, the wrist lock or pain compliance technique to try to get him to move up so we can get the leverage to push him forward.

When the chief applied the pressure on his wrist, Lidy “jump[ed] up and that’s when the going back and forth started. That’s when we turned him towards the handrail that was there.” Lidy then

kind of comes backwards. When he comes back down he starts thrashing left and right. When he goes to the right that’s when we start losing our grip as we’re trying to push him towards the handrail.... As we tried to direct him to go back over to the handrail to get him pinned against the handrail to get more control, that’s when [the lieutenant] loses his grip and I lose my grip on one hand.... And as I’m losing my grip on the second hand, the hand towards the handcuffs, is when he’s twisting because it’s pulling my arm this way. So I’m losing my grip on his wrist. I tried to get an arm around him to try to get him up against the handrail.... Around his shoulder .... I’m trying to get in there ... to try to hold him and get him up against the rail. That didn’t work... I tried to get him up and tried to get him around and before I could get a good grip with the other hand to kind of pin him up against the bar he started slipping back out from underneath me.

The chief stated further:

I started losing my balance and as I went to get a hand on the ground and trying to grab hold of him at the same time, that’s when I saw him turn his body and he went into my knee at that point as we were going down .... As he is falling he turns his shoulder, his right shoulder and he falls on my left leg.

The chief explained that Lidy had “broken free” at the time he began falling on his leg. When asked how much time passed between the time Lidy was “jerking and jumping,” and the time he ended up on his knee, the chief responded: “Within ten seconds. I mean, it was very fast, very quick.” He added that the time elapsed after they lost control of Lidy was “[p]robably a second, if that, because by the time we had lost full control of him and I started to fall and Mr. Lidy was coming down on top of me, I mean, there was almost no time difference.”

The chief testified that when Lidy fell on his knee, he “felt the pop in [his] knee and [he] felt the pain come up [his] leg and into [his] back,” and could remember dragging himself out from underneath Lidy. The chief was taken to a hospital by ambulance where he was given medication for pain. He was diagnosed with a severe sprain and was on crutches for several weeks after which he wore a knee brace.

1. Lidy argues that the evidence was insufficient to sustain his conviction for aggravated battery because there was no evidence to permit a finding that he acted maliciously when he fell on the chief’s leg. He contends that the injury to the chief’s leg was an accident: “Handcuffed in the drizzling rain, thrown onto a handrail, flanked by two officers (one of whom lost his footing in the gravel), Lidy did not purposefully tumble down after the [chief].”

OCGA § 16-5-24 (a) provides: “A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.” Here, the evidence showed that Lidy was angry, yelled at and argued with officers, jumped and thrashed about and threw himself backward against the officers, and then turned his shoulder into the chief and fell onto his leg. “Every person is presumed to intend the natural and probable consequences of his conduct, particularly if that conduct be unlawful and dangerous to the safety or lives of others.” (Citations and punctuation omitted.) Scott v. State, 225 Ga. App. 729, 731 (2) (484 SE2d 780) (1997). While Lidy contended that he did not intentionally cause the chief harm, and the jury was instructed on misfortune or accident, whether he acted with malice was for the jury to determine, and it was authorized to conclude that he did so under the evidence presented. See, e.g., Lee v. State, 275 Ga. App. 93, 95 (619 SE2d 767) (2005) (whether defendant accidentally burned baby was for jury to determine); Allen v. State, 247 Ga. App. 10, 16-17 (4) (b) (543 SE2d 45) (2000).

2. Lidy contends that the trial court erred in failing to merge the two counts of felony obstruction for purposes of sentencing. We agree. The indictment charged Lidy with two counts of obstruction, one against each officer, for “knowingly and willfully resisting] ... by offering violence to the person of such officer by struggling with said officer.” See OCGA § 16-10-24 (b). “[Although a defendant may be tried on multiple counts arising out of the same conduct, the rules of merger permit only one conviction and sentence for a single crime and all included offenses.” (Citation and footnote omitted.) Stevenson v. State, 272 Ga. App. 335, 336 (1) (612 SE2d 521) (2005).

The State argues that because Lidy’s resistance affected both officers, the obstruction counts do not merge. But Lidy’s act of resistance lasted only a few seconds and affected both the lieutenant and the chief simultaneously. The identical facts and identical allegations are relied on to establish the commission of the crime against each officer. Compare Jackson v. State, 295 Ga. App. 427, 433 (5) (671 SE2d 902) (2009) (“each charge of obstruction ‘was separate and distinct with independently supporting facts’ ”). There is no clear distinction here between the way Lidy struggled with the lieutenant and the way he struggled with the chief, although the struggle resulted in an injury to the chief only.

The cases cited by the State holding that the merger doctrine does not apply if each of the charged crimes was committed against a different victim are inapplicable here. The crime of obstruction involves resisting a law enforcement officer in the lawful discharge of his or her duties. Oftentimes, those duties are identical and officers carry out those duties as a group simultaneously and are therefore obstructed or met with resistance simultaneously, for example, when a suspect flees from the joint hold of more than one officer. Unless the evidence shows that each officer was obstructed in a different way or at a different point in time, multiple obstruction charges against multiple officers should merge for purposes of sentencing.

Decided January 25, 2016.

Margaret E. Flynt, Victor P. Aloisio III, for appellant.

Herbert E. Franklin Jr., District Attorney, Michael J. Moeller, Assistant District Attorney, for appellee.

Because the same conduct established the commission of the multiple crimes here, those offenses must merge for purposes of sentencing. Compare Jackson, supra (no merger where defendant obstructed each of the five officers in separate and distinct ways); Ojemuyiwa v. State, 285 Ga. App. 617, 621-622 (4) (647 SE2d 598) (2007) (misdemeanor and felony obstruction counts do not merge when defendant kicked one officer and later failed to obey commands of another). The trial court erred in failing to merge these counts. We therefore vacate Lidy’s sentence and remand this case for resentenc-ing.

Judgment affirmed, sentence vacated, and case remanded for resentencing.

Doyle, C. J., and Phipps, P. J., concur.

       The trial court also instructed the jury:
      Malice is not ill will or hatred. For the purpose of this Code Section malice means an actual intent to cause the particular harm produced; that is, bodily harm without justification or excuse.... Malice is also the wanton or willful doing of an act with an awareness of a plain and strong likelihood that such particular harm may result. Intention may be shown by the circumstances connected with the offense.


author: Branch, Judge.

text:
    A15A1640.
    AUSTIN v. THE STATE.
    (782 SE2d 308)
   Branch, Judge.

Following a bench trial, James Austin, Jr. was convicted of stalking and criminal trespass. He appeals on the ground that the evidence was insufficient to support the convictions. We affirm.

When evaluating the sufficiency of evidence, the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the [trier of fact’s] assessment of the weight and credibility of the evidence.

Mickens v. State, 277 Ga. 627, 627-628 (593 SE2d 350) (2004) (citations omitted).

Viewed in the light most favorable to the verdict, the evidence presented at trial established that the victim and Austin met, perhaps as early as mid-2011, and became friends who saw each other at karaoke bars one to three times a week, usually with others present, but that the friendship never became a romantic, intimate or dating relationship. From the time they met until the time the victim ended their friendship, a period of perhaps two years, the victim only asked Austin to come inside her home on one occasion, when she accepted Austin’s offer to give her a television and he delivered it to her home. On one other occasion, she allowed him to drive her home in her car when she was unable to drive; on that occasion, another person followed in a separate vehicle and picked Austin up after everyone arrived at the victim’s home.

But at some point in their friendship, Austin began to call the victim at times that she had asked him not to call, to speak hostilely during phone calls, and to leave hostile messages. For example, Austin behaved like a jealous boyfriend when he learned that the victim had spent time with another male friend after Austin left one of the karaoke bars where the victim had been. Austin also became upset with the victim, who had always told Austin that she did not allow men in her house and did not get in cars with other people, when he somehow learned that the victim had ridden with another man to go to a Waffle House; Austin called multiple times when the victim was still in the car with her other friend, leaving “crazy messages,” and when the victim eventually answered the phone, Austin “blew up” at her. Austin also became upset with the victim when she would not let him come to her home to install a modem that he had obtained for her without any request from her; the victim described Austin on that occasion as getting “really out of control.” The victim also caught Austin outside her house on one occasion and told him that he had no business being there. On another occasion, after hearing her doorbell ring but finding no one there, the victim saw Austin’s car driving away and found a container of chicken wings and an alcoholic drink near the door. And Austin once left an umbrella at her front door, apparently because of rainy weather. On these and other occasions, the victim told Austin that he should not be doing these things and should not be coming to her house.

The victim did accept Austin’s offer to help her with computer issues, but she only agreed to bring her computer and meet Austin at locations other than her home to do so. Things came to a head on July 24, 2013, when the victim had taken the day off and had arranged a meeting with Austin to work on computer issues; before leaving to meet with Austin, the victim was visited by a male friend whom she eventually started dating. Later that day, while the victim was meeting with Austin about her computer at a tavern and after she took a long telephone call, Austin again “blew up” at her; “got really belligerent”; said, “I know what you’ve been doing all day”; and threw a business card at her. The card proved to be the business card of the victim’s visitor friend. The victim said, “this is it” and left, following which Austin left many hostile messages for her, causing her to have to block Austin from her phone and from her Facebook account. At about 10:30 that evening, the victim’s dog began acting unusually, and the victim became nervous that Austin was outside and called the police. She told the responding officer what had been happening and told him that she did not want Austin on her property anymore. The officer then made a telephone call to Austin, who confirmed his identity, and gave Austin a criminal trespass warning. Specifically, the officer told Austin that the victim did not want him back on the property and that if he came back after the warning, there would be possible legal repercussions. Austin responded that he understood.

Michael Keller, the victim’s next-door neighbor, testified that he saw Austin and his vehicle at or near the victim’s property on at least two occasions, at least one of which was after the issuance of the trespass warning. A month or more prior to Austin’s arrest, Keller saw Austin walking down the side of Keller’s house and asked what his business was. Austin replied that he was the cable installation man looking for the junction box. Keller challenged Austin’s story and asked him to get off his property and leave, which Austin did. Then on August 30, 2013, Keller came home at midnight or later and saw Austin’s vehicle parked in the street and saw Austin on the victim’s property near the front windows to her home. Austin then started to walk toward Keller, and Keller asked him what he was doing. Austin replied, “it’s none of your business,” but Keller responded that it was because it was his neighborhood. Austin then said that he was “cheating,” which he explained meant that he was visiting the victim because her husband worked at night. Keller went back to his house but had second thoughts and returned to the victim’s home while Austin was still sitting in his vehicle. Keller knocked on the victim’s door and asked her if she knew the person in the vehicle; when the victim went outside and saw that it was Austin, she became frightened and called the police. Austin was still near the property when the police arrived. In the ensuing conversation with the officer, Austin asked if the officer was the same officer that issued the criminal trespass warning. Austin also claimed that the victim had called him to come over, but he was unable to produce a call log on his cell phone showing the victim’s telephone number. Finally, Austin told the officer that this was the third time that he had come back to the victim’s property since receiving the criminal trespass warning; he stated that on the previous two nights, he had parked for twenty to thirty minutes but when he did not see the victim, he left.

Austin was arrested for criminal trespass, stalking, and loitering or prowling. He pled not guilty, and his case proceeded to a bench trial where he was convicted of criminal trespass and stalking but acquitted of loitering or prowling. He was sentenced to twenty-four months with three to serve.

1. Stalking includes spying on a person without her consent:

A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person. . . .

OCGA § 16-5-90 (a) (1). Under this statute, “harassing and intimidating” means

a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.

Id. And the term “course of conduct” dictates that a pattern of behavior must be shown, Autry v. State, 306 Ga. App. 125, 127 (701 SE2d 596) (2010) (footnote omitted), but such a pattern may include the prior history between the parties. Louisyr v. State, 307 Ga. App. 724, 729 (1) (706 SE2d 114) (2011). Finally,

[a] defendant need not engage in unequivocally hostile conduct or make explicit threats in order to be convicted of stalking. Even behavior that is not overtly threatening can provide the requisite degree of intimidation and harassment if it is ongoing, repetitious, and engaged in despite the communicated wishes of the victim.

Placanica v. State, 303 Ga. App. 302, 304 (693 SE2d 571) (2010) (footnote omitted).

Here, the evidence shows that Austin repeatedly returned to the victim’s home despite her admonitions to stop and that he did so more than one time after receiving the criminal trespass warning. He was seen in her yard in front of her windows, and he admitted parking in front of her home at least twice for 20 or 30 minutes, incidents that occurred after the warning and without the victim’s consent. He also repeatedly sent her angry messages. Austin’s unceasing attempts to watch, communicate with, or harass the victim clearly placed her in emotional distress sufficient to place her in fear for her safety. “Notwithstanding a defendant’s claims of innocent motives, it is for the finder of fact to determine whether the defendant acted with the requisite degree of criminal intent in engaging in the act for which he is prosecuted.” Krepps v. State, 301 Ga. App. 328, 329 (1) (687 SE2d 608) (2009) (footnote omitted). The evidence presented by the State therefore was sufficient to convict Austin of stalking. See id. (evidence sufficient to support stalking conviction where defendant repeatedly called victim without the victim’s consent for the purpose of harassing and intimidating him).

Decided January 26, 2016.

Stalking, etc. Cherokee State Court. Before Judge Jordan.

2. The same evidence was sufficient to support the conviction of criminal trespass.

A person commits the offense of criminal trespass when he or she knowingly and without authority: ... (2) Enters upon the land or premises of another person . . . after receiving, prior to such entry, notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant that such entry is forbidden [.]

OCGA § 16-7-21 (b).Austin’sonlyargumentisthatthe State failed to present evidence that he entered the victim’s property without authority or that he received proper notice that his entry was forbidden.

But construed in favor of the verdict, the evidence shows that the victim told Austin that he had no business coming to her property and that she gave instruction to the officer on July 24,2013, to tell Austin not to come on her property. The evidence also shows that Austin received the message from the officer but that he later appeared on the victim’s property in front of her window. The only argument raised by Austin — that the victim did not authorize the officer to tell Austin to stay away from her property — ignores the standard of review, which dictates that the evidence be construed in favor of the verdict. For the reasons shown, the evidence was sufficient to support the verdict for criminal trespass.

Judgment affirmed.

Miller, P. J., and Rickman, J., concur.

Carver & DeBord, Jenny L. Carver, for appellant.

Jessica K. Moss, Solicitor-General, David M. McElyea, Assistant Solicitor-General, for appellee.


author: McFadden, Judge.

text:
    A15A1823.
    MATTHEWS v. WELLS FARGO BANK, N.A.
    (782 SE2d 312)
   McFadden, Judge.

This appeal challenges the trial court’s admission of business records at a bench trial. Because the trial court did not abuse his discretion in admitting the records, we affirm.

Wells Fargo Bank, N.A. filed suit for breach of a promissory note against Dianne C. Matthews a/k/a Dianne Koulouvaris. Matthews originally executed the note in favor of Wachovia Bank, which later merged with Wells Fargo. Matthews failed to timely answer the complaint. The trial court entered default on the issue of Matthews’s liability and held a nonjury trial solely on the issue of damages.

Matthews had borrowed from Wachovia and made all of her payments to Wachovia, and at trial, Wells Fargo sought to prove damages by calling as a witness Jill Freel to authenticate the Wachovia records for Matthews’s loan. Freel testified that she is an operation analyst for Wells Fargo; that in performing her duties she is familiar with Wells Fargo’s record-keeping practices; that she is familiar with the 2010 merger of Wells Fargo and Wachovia; that a transaction statement from Matthews’s account was prepared in the regular course of business and reflected all the payments she had made; and that Wells Fargo had the records underlying the transaction statement.

Matthews obj ected to the admission of the transaction statement on the ground that Freel, an employee of Wells Fargo, did not have personal knowledge of the record-keeping practices of Wachovia. The court denied the objection, admitted the document, and entered judgment in favor of Wells Fargo for $261,475.21. Matthews appeals from the final judgment, arguing that the trial court erred in admitting the transaction statement because Freel’s testimony was insufficient to establish a foundation for its admission.

Under OCGA § 24-8-803 (6) of Georgia’s Evidence Code,

a business record is admissible as an exception to the hearsay rule if: the record was made at or near the time of the described act; the record was made by a person with personal knowledge and a business duty to report; the record is admitted through the testimony of a qualified witness; the record was kept in the course of a regularly conducted business activity; the record was made as part of the [business’s] regular business activity; and the source of information or the method or circumstances of preparation do not indicate a lack of trustworthiness.

Wallace v. State, 335 Ga. App. 232, 235 (3) (779 SE2d 130) (2015) (citation omitted). We review the trial court’s admission of evidence under this rule for an abuse of discretion. Id.

Matthews argues that Freel’s testimony was insufficient to admit the transaction statement because she testified that she had no knowledge about how Wachovia kept its loan history, payment records, or the records set forth in the transaction statement. ‘We have consistently rejected similar arguments in the past.” Ware v. Multibank 2009-1 RES-ADC Venture, 327 Ga. App. 245, 248 (2) (758 SE2d 145) (2014) (citations omitted). Instead, in construing OCGA § 24-8-803 (6), we have followed the rule that employees of successor entities can authenticate business records of their predecessor entities that pass to them by virtue of merger. See id. at 249 (2) (citing Fed. Deposit Ins. Corp. v. Sri Chakra Group LLC, No. 5:13-CV-268-MTT, 2014 U. S. Dist. LEXIS 12701, at *11 (M.D. Ga. Feb. 3, 2014)). This is particularly true with bank records, “in light of the fastidious nature of record keeping in financial institutions, which is often required by governmental regulations.” Ware, 327 Ga. App. at 249 (2) (citations omitted).

Matthews attempts to distinguish this case from similar cases on the ground that Freel affirmatively testified that she had no understanding of how Wachovia kept its loan transaction records or how those records were integrated into the Wells Fargo system. But “[t]he testifying witness does not need firsthand knowledge of the contents of the records, of their authors, or even of their preparation.” Curtis v. Perkins, 781 F3d 1262, 1268 (II) (B) (11th Cir. 2015) (citations omitted). Thus the fact that Freel never worked at Wachovia and did not have firsthand knowledge of its record-keeping practices does not mean that she could not authenticate Wachovia’s business records. Freel testified that she knew how the transaction statement was prepared, that it was made and kept in the regular course of the bank’s business activity, and that it was the bank’s regular business practice to make and keep such records. Freel testified that she had no reason to believe that Wachovia’s records were inaccurate, based on her experience working with the transfer of files from Wachovia to Wells Fargo. She further testified that while she was not familiar with the physical transfer of Wachovia’s files to Wells Fargo, she was familiar with the transfer of transaction histories. Given this testimony, the trial court did not abuse his discretion in determining that Wells Fargo established a sufficient foundation for the admission of the transaction statement. Triple T-Bar v. DDR Southeast Springfield, 330 Ga. App. 847, 848-849 (1) (769 SE2d 586) (2015).

Decided January 26, 2016.

Schreeder, Wheeler & Flint, John A. Christy, Andrew J. Lavoie, for appellant.

Burr & Forman, Kwende B. Jones, Erin C. Howell, Bryan T. Glover, for appellee.

Matthews argues that because the trial court should not have admitted the transaction statement, which was Wells Fargo’s only evidence of damages, she was entitled to a directed verdict. We reject this argument in light of our conclusion that the trial court properly admitted the transaction statement.

Judgment affirmed.

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