text:
    A12A1492.
    BOYNTON v. THE STATE.
    (730 SE2d 738)
   Ellington, Chief Judge.

A Muscogee County jury found Richard Boynton (hereinafter “the defendant”) guilty of seven counts of armed robbery, OCGA § 16-8-41 (a); one count of aggravated assault, OCGA § 16-5-21 (a) (1); one count of burglary, OCGA § 16-7-1 (b); and one count of possession of a firearm during the commission of a crime against another, OCGA § 16-11-106 (b) (1). The defendant appeals from the denial of his motion for a new trial. He contends that the trial court erred in admitting similar transaction evidence and that his trial counsel was ineffective. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows the following facts: on September 17, 2008, Gary Trawick, Carl Ingram, Charles Kostelac, and others were playing cards at Trawick’s house in Columbus. As Ingram opened the front door to leave the game, he heard a man outside say “give me your money.” The man, later identified as the defendant, then hit him on the head with a gun. Immediately after that the defendant, his cousin Raimone Boynton, Dominic Tinch, and Nigel Towler entered the house. All wore hats, gloves, and bandanas to conceal their identities. At one point, the defendant held the gun about a foot and a half away from Ingram’s head and threatened to “make an example” of him. Tinch placed the victims’ wallets and other belongings, including Kostelac’s Razor cell phone that had a University of Georgia “G” on the cover, in a bag. The defendant was the last to leave the house. Trawick observed the men run into an open field on the other side of the house before he called the police.

Not present at the robbery, but instrumental to its execution, was Patrick Satterfield. Satterfield knew that Trawick held a card game at his house every Wednesday night, and mentioned this to both Towler and defendant. The defendant said that the house “should be a pretty good lick.” Satterfield helped the men execute the robbery, driving around the neighborhood with Tinch and discussing with the defendant and his cousin about how the men would escape the house after the robbery. Raimone Boynton drove the men close to the house, where they went to a dead-end, crossed a ditch, and entered Trawick’s house. After the robbery, the men ran back across the ditch, into the car, and went to Tinch’s house. The defendant then called Satterfield to let him know that he, his cousin, Towler, and Tinch had robbed the house. The defendant gave Tinch $600, which Tinch gave to Satterfield as a reward for informing him and the other robbers about the house.

During an investigation into the robbery, officers learned that the defendant had told a man, Demarco Jones, that he had participated in the robbery. According to Jones, the defendant got from the robbery a red or orange cell phone with a University of Georgia “G” on it, wallets, and a bag full of money. Based on this information and other leads, the Columbus Police Department arrested the defendant, Towler, Tinch, Satterfield, and Raimone Boynton, and the State jointly indicted them for the crimes. Satterfield, Tinch, and Raimone Boynton pled guilty at the beginning of the trial, leaving only Towler and the defendant to proceed to jury trial.

In addition to the above evidence, the State proffered as similar transaction evidence that, on November 23, 2008, the defendant and another man tried to force their way into the apartment of a woman in Columbus. As the woman started to leave her apartment she heard a knock on the door. She opened the door, and a masked man pointed a gun at her chest, trying to force his way into the apartment. The victim screamed and closed the door on the gunman’s arm. She heard another man tell the gunman that they needed to escape. After the men fled, the victim called the police and said that she saw the men leave in a red car with a tan convertible top. She said the gunman was wearing a black mask, a black jacket with a hood, blue shorts, gloves, and white tennis shoes, and carrying a black bag on his back.

A few hours later, a Columbus Police Department officer stopped a red convertible that matched the victim’s description. The defendant was driving the car, and as the officer approached, he noticed the defendant moving his hands around the floorboard, as if searching for something. The officer drew his weapon and detained the defendant and two other suspects in the car until other officers arrived. The officer later discovered a loaded .38 caliber pistol on the floorboard of the car. The similar transaction victim testified at trial that the pistol was similar to the pistol the robber pointed at her.

At the time of his arrest, the defendant’s hair appeared to be matted as if he had something pressed against his head, and he was wearing blue basketball shorts and a white T-shirt. In the convertible was a white and blue baseball cap, a ski mask, and a black “doo rag,” as well as a black sports tote bag, fitting the description the similar transaction victim gave. There were black gloves in the map compartment and a black hooded jacket in the trunk. The State was able to introduce all facts about this case except the conviction.

1. In two related claims of error, the defendant contends the trial court erred in admitting the similar transaction evidence. First, he contends the similarities between the attempted robbery and the robbery at Trawick’s house were neither sufficiently numerous nor distinct enough to earmark them as the handiwork of the defendant, and should not have been introduced as similar transaction evidence to show modus operandi. Secondly, he contends the trial court erred in admitting the similar transaction evidence to show course of conduct, arguing that there was no logical connection between the attempted robbery and the Trawick robbery.

In general, evidence of independent offenses committed by a defendant is irrelevant and inadmissible in a trial for a different crime. In some cases, however, evidence of similar crimes (or transactions), is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. Before evidence of prior crimes is admissible, the trial court must determine that the State has affirmatively shown that: (1) the State seeks to admit evidence of the independent offenses or acts for an appropriate purpose; (2) there is sufficient evidence that the accused committed the independent offenses or acts; and (3) there is sufficient connection or similarity between the independent offenses or acts and the crimes charged so that proof of the former tends to prove the latter.

(Citations and punctuation omitted.) Pareja v. State, 286 Ga. 117, 119 (686 SE2d 232) (2009). “[T]he decision to admit similar transaction evidence which satisfies the three-prong test is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion.” (Citation omitted.) Flowers v. State, 269 Ga. App. 443, 444 (1) (604 SE2d 285) (2004).

“A transaction does not have to mirror every detail in order to authorize its admission; rather, the proper focus is upon the similarities between the incidents and not upon the differences.” (Citation and punctuation omitted.) Collum v. State, 281 Ga. 719, 723 (4) (642 SE2d 640) (2007). The similarities between both the attempted robbery and the Trawick robbery are that, in both cases, the defendant was (1) entering another’s residence, (2) in Columbus, (3) through force, (4) while the residence was occupied, (5) armed with a gun, and (6) concealing his face and hands, (7) with at least one other conspirator, and (8) using an automobile close to the scene of each incident as a getaway car. Furthermore, for similar transactions the law requires either a sufficient connection or similarity between two events. See Beck v. State, 291 Ga. App. 702, 703 (662 SE2d 798) (2008) (holding that when two crimes are essentially dissimilar, one crime may be admitted as a similar transaction at the trial on the other if the State is able to show a logical connection between the crimes). Regardless of whether the attempted robbery was logically connected to the Trawick robbery, there were eight, distinct similarities between the two. Thus, the trial court was authorized to find that the evidence of the defendant’s participation in the November 2008 attempted robbery tended to prove that he also committed the Trawick robbery, and was admissible to prove his course of conduct and modus operandi.

2. The defendant contends his counsel was ineffective in several respects: he failed to object to the admission of the similar transaction, failed to object when the State introduced into evidence a picture of the defendant in shackles, and failed to object when the court stated during its jury charge that, “in this case, the [similar transaction] evidence was offered to prove bent of mind and course of conduct of the defendant,” contending that bent of mind was not one of the purposes for which the trial court had admitted the similar transaction evidence.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)[.] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. [As the appellate court, we] accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003).

(a) The defendant contends that his counsel was ineffective because he failed to object to the trial court’s admission of similar transaction evidence for the purpose of showing course of conduct and modus operandi. The record, however, does not support this claim of error. “As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Citation and punctuation omitted.) Grier v. State, 273 Ga. 363, 365 (541 SE2d 369) (2001). The defendant’s counsel first objected during the pretrial hearing to the introduction of the similar transaction evidence. In response, the trial court limited the similar transaction evidence to show course of conduct and modus operandi, noting that the defendant was identified later in the attempted robbery when the police officer stopped him as he was driving the car, and that his clothes and gear at the time of the arrest matched the victim’s description. During the trial the defendant’s counsel again objected to similar transaction evidence admission on general grounds. The court overruled the objection. Thus, we cannot say that the defendant’s counsel failed to make an objection to the court’s admission of similar transaction evidence for the purpose of showing course of conduct and modus operandi.

(b) The defendant contends his counsel was ineffective because he failed to object to the State introducing into evidence a picture of him in shackles, which was taken immediately after his arrest for the attempted armed robbery. This contention lacks merit, however, as “the circumstances connected with a defendant’s arrest are considered proper evidence to be submitted to the jury. . . .” Knowles v. State, 245 Ga. App. 523, 525 (5) (538 SE2d 175) (2000) (holding that the trial court did not err in admitting a photo of defendant standing by his truck in handcuffs during his arrest). During the testimony of the officer who arrested the defendant after the attempted armed robbery, the State showed the officer a picture of the defendant. The officer noted that the defendant was wearing blue basketball shorts and a white T-shirt, matching the victim’s description of the gunman’s clothing. Thus, the trial court did not err in admitting the picture that was taken moments after his arrest in a crime submitted as similar transaction evidence, his attorney was not ineffective for failing to object, and we cannot say that, but for his failure to object, the outcome of the trial would have been different.

(c) The defendant contends the trial court erred while charging the jury on similar transaction evidence, and that his counsel was ineffective by failing to object. During the charge of the court, the judge told the jury the similar transaction evidence was to show bent of mind and course of conduct. However, the trial court quickly clarified the instruction, stating that the similar transaction evidence “may be considered for the limited purpose of showing ... the course of conduct and modus operandi in the crimes charged in the case now at trial. Such evidence, if any, may not be considered by you for any other purpose.”

In Moore v. State, 301 Ga. App. 220 (687 SE2d 259) (2009), we held that a trial court’s mere slip of the tongue during a jury charge, quickly corrected, “afford no basis for reversal.” Id. at 223 (1). Likewise, here the trial court corrected itself shortly after its initial, expanded charge, reminding the jury of the limited role the similar transaction evidence was to play in determining the defendant’s guilt or innocence. Moreover, the record shows that immediately before the State presented the similar transaction evidence at trial, the court gave a correct, comprehensive limiting instruction to the jury. During that instruction, the court twice referred to the only permissible purposes for the similar transaction evidence as being course of conduct and modus operandi. See id. at 225 (4) (finding no harmful error arising from the court’s slip of the tongue during a similar transaction jury charge, when the court quickly corrected itself and when it also gave a separate, correct instruction when the similar transaction evidence was presented). Consequently, pretermitting whether counsel’s representation was deficient for failing to object to the charges, we conclude that the failure to object was harmless under the circumstances presented.

Decided July 27, 2012

Reconsideration denied August 21, 2012

Worthington & Flournoy, Thomas M. Flournoy, Jr., for appellant.

Julia Fessenden Slater, District Attorney, David R. Helmick, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       In exchange for lesser sentences both Tinch and Satterfield pled guilty before the trial and testified for the State about planning and executing the robbery.

       The defendant also enumerates as error that his counsel referred to him and his co-defendants as “bad boys” during closing argument. The text of the closing argument, however, was not included in the record. Therefore, this enumeration of error is deemed abandoned. “We may not consider on appeal evidence that is not included in the record sent from the trial court.” (Citation omitted.) Mitchell v. State, 242 Ga. App. 177, 183 (6) (529 SE2d 169) (2000).


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A12A0660.
    HOLLOWAY et al. v. U. S. BANK TRUST NATIONAL ASSOCIATION.
    (731 SE2d 763)
   McFadden, Judge.

U. S. Bank Trust National Association filed this action seeking a declaration that a security deed it holds on property owned by the late Robert Holloway is a valid first lien on the property. Holloway’s estate and others with an interest in the property (together, “the estate”) appeal the summary judgment in U. S. Bank’s favor. There is some evidence that U. S. Bank acquired its security deed from a party who acquired her interest through constructive fraud, so the bank has not shown as a matter of law that it acquired good title. We therefore reverse.

A moving party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c).

[0]n appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

Viewed in this light, the evidence shows that in June or July 2001, Holloway conveyed title to his property to Sadie Flowers by quitclaim deed. The appellate record is silent as to their relationship and the circumstances of the conveyance, but in another lawsuit, the trial court found that Flowers “exploited, defrauded and/or tricked” Holloway into executing the deed. Flowers eventually granted her husband an interest in the property. In December 2002, Flowers and her husband obtained a loan from the predecessor in interest of U. S. Bank. They granted a security deed in the property to secure the loan. The security deed was recorded on January 6, 2003. At the time, nothing in the property records indicated any kind of irregularity in the quitclaim deed from Holloway to Flowers.

Holloway retained possession of the property, living there until August 2, 2003, when Flowers forced him out. On August 6, 2003, eight months after the deed to secure debt had been recorded, Holloway filed an action to set aside the quitclaim deed to Flowers. Although the trial court here took judicial notice of the records in the set-aside action, the set-aside complaint is not included in this appellate record. Accordingly, we do not know the allegations forming the basis of the set-aside action. Neither U. S. Bank nor its predecessor was notified of the action to set aside the quitclaim deed. In December 2005, the conveyance from Holloway to Flowers was set aside on the ground that Flowers “exploited, defrauded and/or tricked” Holloway into signing the quitclaim deed, and the quitclaim deed was “the product of fraud and [was] void.”

The Flowerses defaulted on their obligation to U. S. Bank, which sought to foreclose on the property. As a first step in that undertaking, the bank brought this action seeking a declaration that its deed to secure debt is a valid first lien on the property.

The superior court granted U. S. Bank’s motion for summary judgment, declaring the bank’s deed a valid first lien. The estate appealed to this court.

1. We initially transferred this appeal to the Supreme Court of Georgia on the ground that this is an equity case involving title to land. The Supreme Court transferred it back to us, finding that it is not, because

this case, which involves the validity of a security deed, does not come within the [Supreme] Court’s equity jurisdiction by virtue of the issue raised regarding the equitable principle embodied in OCGA § 23-1-14. Nor does this appeal invoke the [Supreme] Court’s title to land jurisdiction under Graham v. Tallent, 235 Ga. 47,49 [(218 SE2d 799)] (1975).... [I]t appears that no other issue raised by appellants places the case within [the Supreme Court’s] jurisdiction. . . .

2. In its order granting summary judgment to U. S. Bank, the trial court decided that the deed to secure debt from Flowers to U. S. Bank created an encumbrance on the property and that U. S. Bank was entitled to pursue its rights under the deed. In support of this ruling, the trial court acknowledged that generally a grantor’s retention of possession gives notice of his rights in property, see OCGA § 44-5-169, but, without citing authority, the court questioned whether such, notice extends to a lender that does not intend to reside at the property. The court then applied the equitable principle that when one of two innocent persons must suffer the consequences of a wrongful act of a third person, he who gave the third person the power to inflict the injury must bear the loss. See OCGA § 23-1-14. The trial court concluded that since both Holloway and U. S. Bank were victims of Flowers’ fraud, U. S. Bank must prevail; although the appellate record contains no evidence on these issues, the court found that Holloway had a diminished capacity and that Holloway’s heirs failed to take steps to discern that he had a diminished capacity and to protect him from Flowers’ fraud.

The trial court did not address, however, whether U. S. Bank showed as a matter of law and undisputed fact that the Flowerses had good title to the property that they could pass to U. S. Bank. “[I]t is elementary that land not owned by the grantor cannot pass by his deed.” Second Refuge Church of Our Lord Jesus Christ v. Lollar, 282 Ga. 721, 727 (3) (653 SE2d 462) (2007) (quoting 2 Daniel F. Hinkel, Pindar’s Georgia Real Estate Law and Procedure § 19-20, at 329 (6th ed.)). If Flowers had no title to Holloway’s property because she obtained her quitclaim fraudulently, she could not pass title to the property, and the issues addressed by the trial court are irrelevant. See Aurora Loan Svcs. v. Veatch, 288 Ga. 808, 809 (710 SE2d 744) (2011).

The Supreme Court recently addressed the validity of a security deed that was preceded in its chain of title by a forged deed. Brock v. Yale Mtg. Corp., 287 Ga. 849 (700 SE2d 583) (2010). The Court held that

[a]s a general rule, a bona fide purchaser for value is protected against outstanding interests in land of which the purchaser has no notice. [And] ... a grantee in a security deed who acts in good faith stands in the attitude of a bona fide purchaser, and is entitled to the same protection. But... a forged deed is a nullity and vests no title in a grantee. As such, even a bona fide purchaser for value without notice of a forgery cannot acquire good title from a grantee in a forged deed, or those holding under such a grantee, because the grantee has no title to convey.

(Citations and punctuation omitted.) Id. at 852 (2).

The Supreme Court previously had applied this principle in a case that involved fraud, but not an actual forgery. In Chestnut v. Weekes, 183 Ga. 367 (188 SE 714) (1936), although there was no actual forgery, the Supreme Court found certain fraudulent conduct “in substance” to be a forgery. In that case, the evidence showed that

Mrs. Gay was about 82 years old. She had a broken hip, and was confined to her bed for some time. A practical nurse was present in the sickroom, waiting on Mrs. Gay on January 21, 1932, when Dr. Baird came in. Before the doctor arrivedMrs. Gay was not conscious of anything for some time. Baird administered medicine to her with a hyperdermic [sic] needle. It was not the same kind of medicine he had been administering. He gave her this injection about 10 o’clock in the morning. He went away and returned about 12:30 or 1 o’clock. Mrs. Gay was in a helpless condition, and talked of seeing a woman in white, when no woman in white was there. The medicine seemed to paralyze her mind absolutely. She seemed to be in a kind of crazy stupor, a helpless condition. When Dr. Baird came in he had a deed for her to sign. He held her helpless hand with the pen in it to sign the deed.

Id. at 369-370. The deed granted the property to Dr. Baird’s wife, who subsequently sold the property to D. O. Chestnut, who had no notice of the fraud. Id.

The Supreme Court held that “[b]eing of such character, the paper in so far as it purported to convey the title would be void and insufficient to convey the legal title to the purported grantee.” (Citations omitted.) Chestnut, 183 Ga. at 371 (1). The Supreme Court concluded that the signing of the name of the grantor “in substance would be a forgery,” and the void deed was insufficient to convey legal title, even to the innocent purchaser, Chestnut. Id. at 371 (1), (2). But see Hadden v. Larned, 87 Ga. 634, 643-644 (8) (13 SE 806) (1891) (deed that was obtained by fraud or undue influence cannot be pleaded by the grantor against a bona fide purchaser or lender without notice). The Supreme Court cited Chestnut with approval in Brock. 287 Ga. at 852 (2).

Decided August 22, 2012.

Killian & Boyd, Robert P. Killian, for appellants.

Ferrier & Ferrier, Joseph H. Ferrier, for appellee.

Here, although the superior court in the set-aside action did not find forgery, it found that Flowers “exploited, defrauded and/or tricked” Holloway into signing the quitclaim deed and the quitclaim deed from Holloway to Flowers was “the product of fraud and [was] void.” U. S. Bank’s interest in the property is dependent on the fraudulent deed made to Flowers. If Flowers’ fraud amounted to a constructive forgery, then no title passed to U. S. Bank. Chestnut, 183 Ga. at 371 (1). And if the security deed from the Flowerses to U. S. Bank did not convey title, then it would be “of no moment whether the deed records provided notice ... at the time [Flowers] executed the security deed on which [U. S. Bank] bases its claim; there [would be] simply no title held by [Flowers] or any subsequent assignee.” (Citations omitted.) Aurora Loan Svcs., supra, 288 Ga. at 809.

The record on appeal, however, contains no evidence regarding the specific nature of the fraud perpetuated by Flowers upon Holloway. Thus, U. S. Bank has not shown that it was entitled to judgment as a matter of law. See OCGA § 9-11-56 (c). “Under these circumstances, there appear to be both issues of material fact remaining as well as important questions of law which the trial court has not yet reached. Accordingly, the trial court erred in granting summary judgment to [U. S. Bank].” Owens v. City of Greenville, 290 Ga. 557, 559 (2) (722 SE2d 755) (2012).

Judgment reversed.

Barnes, P. J., and Adams, J., concur.


text:
    A12A1112.
    DENSON v. THE STATE.
    (731 SE2d 130)
   McFadden, Judge.

This is an interlocutory appeal from the trial court’s denial of Billy Denson’s motion for bond. While Denson was serving a prison sentence for a different offense, the district attorney for Houston County filed a purported detainer on him with the Georgia Department of Corrections. The filing of that purported detainer, Denson argues, constituted his arrest and confinement on the charges at issue in this case and therefore triggered his rights under OCGA § 17-7-50. That statute requires charges to be brought before a grand jury within 90 days of arrest and confinement; and it provides, if that deadline is not met, that “the accused shall have bail set upon application to the court.” That deadline, Denson argues, was missed in this case and the trial court was therefore required to grant his motion for bond. We disagree. As detailed below, the Department of Corrections was not authorized to accept and file the purported detainer, because it did not meet the statutory requirements for a detainer. See OCGA §§ 42-6-1; 42-6-2. Its unauthorized filing did not trigger the requirements of OCGA § 17-7-50 or entitle Denson to bail under that Code section. Accordingly, we affirm.

As an initial matter, we note that the appellate record does not contain either the detainer or any specific information about the sentence Denson was serving when the detainer was filed. It is Denson’s burden, as the appellant, to show error affirmatively by the appellate record. See Westmoreland v. State, 287 Ga. 688, 696 (10) (699 SE2d 13) (2010). Nevertheless, the Appellate Practice Act requires that we bring about a decision on the merits, if possible. See OCGA § 5-6-30. In the ruling before us, the trial court set forth certain facts that comported with representations made by both the prosecutor and defense counsel during the motion hearing. To the extent that those facts appear from the record and briefs to be undisputed, we will consider them in reviewing the trial court’s ruling. See generally Rank v. Rank, 287 Ga. 147, 149 (2) (695 SE2d 13) (2010) (absent objection, counsel’s evidentiary proffers to trial court during hearing will be treated as evidence on appeal).

Those facts are as follows. On February 5, 2010, the Houston County Magistrate Court issued warrants for Denson’s arrest on the charges at issue in this case. At that time, Denson was serving a sentence of confinement in state prison for his conviction for a different offense. The purported detainer was filed on February 9, 2010. At some point not specified in the record, Denson finished serving his sentence on the prior offense. On November 7, 2011, Denson was released from state prison and transferred to the Houston County jail, and on November 15, 2011, the charges at issue in this case were brought before a grand jury, resulting in Denson’s indictment that same day.

Denson contends that the grant of his motion for bond was mandated by OCGA § 17-7-50, which provides, in part:

Any person who is arrested for a crime and who is refused bail shall, within 90 days after the date of confinement, be entitled to have the charge against him or her heard by a grand jury having jurisdiction over the accused person[.]... In the event no grand jury considers the charges against the accused person within the 90 day period of confinement . . . , the accused shall have bail set upon application to the court.

Denson argues that he was entitled to bail under OCGA § 17-7-50 because the grand jury did not hear the charges against him within 90 days of February 9, 2010, the date the detainer was filed. In essence, he contends that the filing of the detainer constituted his arrest and confinement on those charges.

Pretermitting whether a properly filed detainer could constitute an “arrest” and “confinement” for the crimes for which the detainer was issued, we reject Denson’s contention that the purported detainer in this case had that effect, because we find that, under OCGA § 42-6-2, the Georgia Department of Corrections was not authorized to accept and file it. That Code section authorizes the Georgia Department of Corrections to “accept and file only those detainers which meet the requirements of [OCGA §§ 42-6-1 through 42-6-6],” OCGA § 42-6-2 (emphasis supplied), except in circumstances not pertinent to this case.

The purported detainer in this case, however, did not meet those requirements because it did not meet the statutory definition of a detainer set forth in OCGA § 42-6-1 (3). The detainer in this case was based upon an arrest warrant. The plain language of the statutory definition, however, requires that a detainer be based upon a pending indictment, a pending accusation, or a conviction or sentence pending appeal:

“Detainer” means a written instrument executed by the prosecuting officer of a court and filed with the [D] epartment [of Corrections] requesting that the department retain custody of an inmate pending delivery of the inmate to the proper authorities to stand trial upon a pending indictment or accusation, or to await final disposition of all appeals and other motions which are pending on any outstanding sentence, and to which is attached a copy of the indictment, accusation, or conviction which constitutes the basis of the request.

OCGA § 42-6-1 (3). See also Ga. Comp. R. & Regs. r. 125-2-4-.09 (1) (Georgia’s rules and regulations governing the Department of Corrections’ offender administration, which substantively mirror the statutory definition of detainer at OCGA § 42-6-1 (3)).

Decided August 22, 2012.

Angela M. Coggins, for appellant.

George H. HartwigHI, District Attorney, Deshala D. Bray, Assistant District Attorney, for appellee.

We cannot extend the statutory definition of a detainer in OCGA § 42-6-1 (3) to include instruments based upon arrest warrants. In the context of interstate detainers our Supreme Court held,

[w]hile it may be common practice for the State to attempt to detain a prisoner based upon an arrest warrant for other charges, . . . this Court must conclude that an arrest warrant, in and of itself, is insufficient to invoke the [Interstate Agreement on Detainers, OCGA §§ 42-6-20 - 42-6-25].

(Citation and punctuation omitted.) State v. Carlton, 276 Ga. 693, 696 (583 SE2d 1) (2003). In so doing, the Supreme Court reversed this court’s decision recognizing the effectiveness of an interstate detainer based upon an arrest warrant. See Carlton v. State, 254 Ga. App. 653, 655-658 (2) (563 SE2d 521) (2002). We discern no basis for reaching a different result under the general provisions governing intrastate detainers. The plain language of OCGA § 42-6-1 (3) does not include arrest warrants, Denson cites to no authority supporting a different reading of OCGA § 42-6-1 (3), and the only decision we have found on point, Riley v. State, 180 Ga. App. 409 (349 SE2d 274) (1986), predates the Supreme Court’s Carlton decision and is not binding precedent because two of the three judges concurred in the judgment only. Court of Appeals Rule 33 (a).

Because the purported detainer at issue here did not meet the statutory requirements for a detainer, the Department of Corrections was not authorized to accept and file it. OCGA § 42-6-2. It was therefore without legal effect, could not constitute arrest and confinement of Denson, did not require the presentment of the charges to a grand jury within 90 days, and did not entitle him to automatic bail under OCGA § 17-7-50. Consequently, the trial court was not required to grant Denson’s motion for bond under OCGA § 17-7-50.

Judgment affirmed.

Barnes, R J., and Adams, J., concur.


author: Miller, Judge.

text:
    A12A1497.
    MALONEY v. THE STATE.
    (731 SE2d 133)
   Miller, Judge.

Following a jury trial, William J. Maloney was convicted of aggravated child molestation (OCGA § 16-6-4 (c)). Maloney filed a motion for new trial, which the trial court denied. Maloney appeals, contending that the evidence was insufficient to sustain his conviction. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation omitted.) Stepho v. State, 312 Ga. App. 495, 496 (718 SE2d 852) (2011).

So viewed, the trial evidence shows that in October 2008, Maloney and the victim, his 11-year old daughter, were watching a movie alone together at their residence. At some point, Maloney began tickling the victim’s belly with his beard. As Maloney continued to tickle the victim, he removed the victim’s underwear and licked her vagina. The victim started screaming at her father to stop, but he refused.

The sexual abuse was reported to authorities, who referred the victim to a child forensic interviewer. During her interview, the victim denied that Maloney abused her. A short time later, however, the victim contacted the police and stated that she had lied to the forensic interviewer when she denied that Maloney sexually abused her. During that police interview, the victim described the above incident. Maloney was subsequently arrested and charged with aggravated child molestation.

At trial, the victim testified about the sexual molestation that occurred in October 2008. Following the presentation of evidence, the jury found Maloney guilty of aggravated child molestation.

Decided August 22, 2012.

David L. Lumpkin, for appellant.

T. Joseph Campbell, District Attorney, Suzanne Z. Brookshire, Assistant District Attorney, for appellee.

In his sole enumeration of error, Maloney contends that the evidence was insufficient to sustain his conviction because it rested primarily on the victim’s testimony, which was not credible, consistent, or corroborated. We discern no error.

“A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which ... involves an act of sodomy.” OCGA § 16-6-4 (c). “Aperson commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.” OCGA § 16-6-2 (a) (1). The indictment in this case charged Maloney with aggravated child molestation based on allegations that he had committed acts of sodomy by placing his mouth on the victim’s vagina.

Here, the victim testified that Maloney pulled down her panties and licked her vagina. The victim’s testimony alone authorized Maloney’s conviction. See OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”). Additionally, “[t]he uncorroborated testimony of a child victim is sufficient to support a conviction for... aggravated child molestation.” (Citations omitted.) Stepho, supra, 312 Ga. App. at 497 (1). To the extent Maloney challenges the credibility of the witnesses or any inconsistencies or conflicts in the evidence, “[a] jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it.” (Citation and punctuation omitted.) Bray v. State, 294 Ga. App. 562, 563 (1) (669 SE2d 509) (2008). Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that it was sufficient for a rational factfinder to find Maloney guilty beyond a reasonable doubt of aggravated child molestation.

Judgment affirmed.

Mikell, P. J., and Ray, J., concur.

       The State also presented similar transaction evidence showing that Maloney began sexually abusing his niece when she was six years old, and that the abuse continued for many years.


author: Boggs, Judge.

text:
    A10A1611, A10A1612.
    TIMBERRIDGE PRESBYTERIAN CHURCH, INC. v. PRESBYTERY OF GREATER ATLANTA, INC. (two cases).
    (731 SE2d 766)
    Decided August 23, 2012.

      Talley, French & Kendall, Michael C. Kendall, Maureen E. Murphy, for appellant.

      Wilson, Morton & Downs, Robert E. Wilson, Debra A. Golymbieski, for appellee.
   Boggs, Judge.

In Presbytery of Greater Atlanta v. Timberridge Presbyterian Church, 290 Ga. 272 (719 SE2d 446) (2011), the Supreme Court reversed the judgment of this court in Timberridge Presbyterian Church v. Presbytery of Greater Atlanta, 307 Ga. App. 191 (705 SE2d 262) (2010). We therefore vacate our earlier opinion and adopt the judgment of the Supreme Court as the opinion of this court.

Judgment affirmed.

Mikell, P. J., and Adams, J., concur.


text:
    A12A0964.
    In the Interest of J. J. et al., children.
    (731 SE2d 766)
   McFadden, Judge.

The DeKalb County Department of Family and Children Services filed a complaint alleging that four minor children are deprived because their mother had left them alone without proper parental supervision and failed to enroll them in school. After a hearing, the juvenile court dismissed the complaint, finding that there was not probable cause to believe the children are deprived. A child advocate filed this appeal on the children’s behalf, claiming that the juvenile court abused its discretion in dismissing the complaint. Because there is some evidence to support the findings in the juvenile court’s dismissal order, we find no abuse of discretion and affirm.

1. The appellants do not contest the dismissal of the complaint as to the allegations of inadequate supervision. Instead they claim that the juvenile court erred in dismissing the complaint, because there were reasonable grounds to believe that the mother neglected to educate the children. However,

[ojnce the juvenile court determines that reasonable grounds do or do not exist, the function of the appellate court is limited to ascertaining whether there was some evidence to support the juvenile court’s determination. Determinations of a juvenile court made on an exercise of discretion, if based upon evidence, will not be controlled by this court.

Decided August 23, 2012.

Aimee E. Stowe, Natalece I. Washington, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, Andre M. Johnson, for appellee.

(Citation and punctuation omitted.) In the Interest of J. F., 310 Ga. App. 807, 809-810 (2) (714 SE2d 399) (2011). Contrary to the appellants’ claim, there is some evidence to support the juvenile court’s determination. As the juvenile court noted in its order, a foster care case manager testified that the children are enrolled in school and that any alleged issues regarding school have been solved. The state must present evidence of present deprivation, not past or potential future deprivation. In the Interest of S. D., 316 Ga. App. 86, 89 (2) (728 SE2d 749) (2012). “Based on the evidence, the juvenile court acted within its discretion in finding that there were no reasonable grounds to find [educational deprivation], and thus, in dismissing the deprivation complaint.” In the Interest of J. F., 310 Ga. App. at 810 (2).

2. The appellants contend that the juvenile court erred in stating at the hearing that it could not find probable cause based solely on the hearsay evidence presented. However, the juvenile court’s oral pronouncement was not reduced to writing. Rather, the final written order of dismissal recounted the testimony of the foster care case manager and noted the mother’s agreement to comply with a safety plan for the children, without specifically precluding a finding of probable cause based solely on hearsay evidence. “And what the judge orally declares is no judgment until the same has been reduced to writing and entered as such.” (Citation and punctuation omitted.) Hipster, Inc. v. Augusta Mall Partnership, 291 Ga. App. 273, 277 (3) (661 SE2d 652) (2008). Indeed, a trial court’s oral pronouncements are not binding because, while they may provide insight on the intent of the subsequent written judgment, any discrepancy between the written judgment and oral pronouncements is resolved in favor of the written judgment. Blair v. Bishop, 290 Ga. App. 721, 725 (2) (660 SE2d 35) (2008); In the Interest of L. H., 242 Ga. App. 659, 660 (2) (530 SE2d 753) (2000).

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


text:
    A12A1031.
    NEWELL RECYCLING OF ATLANTA, INC. v. JORDAN JONES & GOULDING, INC.
    (731 SE2d 361)
   McFadden, Judge.

This case presents the issue of whether two letters and an enclosed document sent by Jordan Jones & Goulding, Inc. to Newell Recycling of Atlanta, Inc. constitute a contract in writing for the purpose of determining the applicable statute of limitation. If so, then Newell’s breach of contract action against Jordan Jones is timely under the six-year statute of limitation for written contracts, OCGA § 9-3-24. If the contract between Newell and Jordan Jones is part in writing and part in parol, then the four-year statute of limitation of OCGA § 9-3-25 applies, and Newell’s action is time-barred. We agree with the trial court that because the written documents do not contain all the essential components of a contract, the parties’ agreement was not a contract in writing for statute of limitation purposes. We thus affirm the trial court’s grant of summary judgment to Jordan Jones.

As the Supreme Court described them in Newell Recycling of Atlanta v. Jordan Jones & Goulding, 288 Ga. 236 (703 SE2d 323) (2010), the facts are as follows:

Jordan Jones and Goulding Inc. (“JJ&G”), a professional engineering firm, designed an automobile shredding facility for Newell Recycling of Atlanta, Inc. (Newell). JJ&G’s work was done pursuant to a “Draft Scope of Work” document and letters that it sent to Newell in August 1997, and pursuant to an agreement to prepare a concrete work platform that would control drainage around the shredding facility. After work had been completed on the project and the shredding facility became operational, in or around May 2000, the concrete platform around the facility began to fail.
Over four years later, in August 2004, Newell sued JJ&G for breach of contract and professional malpractice. On August 4, 2005, JJ&G moved for summary judgment, arguing that the complaint was barred by the four-year statute of limitation applicable to actions “upon any implied promise or undertaking” contained in OCGA § 9-3-25 (“(a)ll actions... upon any implied promise or undertaking shall be brought within four years after the right of action accrues”).

The trial court denied Jordan Jones’s motion, finding that the six-year statute of limitation of OCGA § 9-3-24 applied. Reversing the trial court, we ruled that Jordan Jones was entitled to summary judgment because the action was time-barred under OCGA § 9-3-25, reasoning that the four-year statute of limitation in that Code section applied to all malpractice claims sounding in contract. Jordan Jones & Goulding v. Newell Recycling of Atlanta, 299 Ga. App. 294, 297 (682 SE2d 666) (2009). The Supreme Court reversed our decision, finding that a professional malpractice claim premised on a written contract is governed by the six-year statute of limitation in OCGA § 9-3-24. Newell Recycling, 288 Ga. at 237-239.

Upon remittitur, we found that “[t]he question remains . . . whether the claims in this case are governed by the statute of limitation for simple contracts in writing, OCGA § 9-3-24, or by the statute of limitation for express oral promises and implied promises, OCGA § 9-3-25.” Jordan Jones & Goulding v. Newell Recycling of Atlanta, 309 Ga. App. 717, 717-718 (710 SE2d 915) (2011). Accordingly, we vacated the trial court’s order and remanded for the trial court to consider this question. Id. at 718. On remand, the trial court granted summary judgment to Jordan Jones, finding that the parties’ contract was not completely in writing and thus the four-year statute of limitation applied. Newell filed this appeal.

According to our Supreme Court, our “threshold inquiry is to determine whether a written agreement actually exists between the parties such that any implied duties sued upon would have grown directly out of the existence of the written contract itself.” (Citations omitted.) Newell Recycling, 288 Ga. at 238. “To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” OCGA § 13-3-1. We must determine whether the writings at issue — the August 15 andAugust 22, 1997 letters and the attached document — contain these four elements.

The August 15, 1997 letter is a cover letter, enclosing a nine-page document entitled “Draft SCOPE OF WORK.” In the cover letter, Jordan Jones wrote that it believed that the draft scope of work document “addresse[d] [yjour environmental assessment and permitting needs as well as facilities planning/design and bidding/construction phase needs for the New Recycling Facility in Duluth.” Jordan Jones “welcome[d Newell’s] input and . . . ideas to ensure that [it had] covered all the bases,” and noted that “[w]hile [Newell was] reviewing this Scope of Work for completeness, [Jordan Jones would] be developing a budget estimate for the various tasks outlined in the scope.” The enclosed draft scope of work document listed six categories of work to be performed: environmental site assessment; facilities planning; site design; facilities design; permitting; and bidding and construction phases. It listed specific work to be performed under each category.

The August 22,1997 letter attached the same draft scope of work document and provided that Jordan Jones “propose [d] to perform this work on an hourly [basis] and . . . only bill [Newell] for completed task[s].” The letter went on to “estimate ... [a] range of fees for the first 3 tasks identified in [its] previously submitted Draft Scope of Work,” but noted that “the remaining 3 tasks [could] not be accurately estimated until some definition of [Newell’s] proposed facilities [could] be developed and a site visit of the existing buildings and site features [could] be arranged.”

There is no dispute that these documents identify the parties to the contract and reflect their assent. The issue is whether the documents contain “consideration moving to the contract” and “a subject matter upon which the contract can operate.” OCGA § 13-3-1. Pretermitting the issue of subject matter, we find that the documents fail to include the essential element of consideration.

“It is fundamental contract law that consideration is essential to a contract which the law will enforce.” (Citation omitted.) Newport Timber Corp. v. Floyd, 247 Ga. 535, 540 (3) (277 SE2d 646) (1981). And “consideration must be stated in the contract or at least be ascertainable from the contract.” Robles v. Humana Hosp. Cartersville, 785 FSupp. 989, 1001 (N.D. Ga. 1992) (citing Summerlin v. Beacon Investment Co., 120 Ga. App. 296, 298 (2) (170 SE2d 307) (1969)). “[A]ll that is required by the law is that the contract furnish a key by which the consideration may be ascertained.” Summerlin, 120 Ga. App. at 298 (2).

Newell argues that the consideration component is included in the August 22, 1997 letter, which provides cost estimates for the first three stages of work and states that Jordan Jones will bill its work on an hourly basis. The problem is that neither the August 15, 1997 letter nor the August 22,1997 letter contains the hourly rates. Newell argues that an invoice sent by Jordan Jones is the necessary key by which the consideration may be ascertained. OCGA § 24-6-3 (a) provides that “[a]ll contemporaneous writings shall be admissible to explain each other.” But “the evidence must demonstrate that the writings were executed at the same time and in the course of the same transaction in order to allow the writings to be construed together.” (Citation and punctuation omitted.) LaFarge Bldg. Materials v. Pratt, 307 Ga. App. 767, 771 (2) (706 SE2d 131) (2011). Although the invoice lists the number of hours worked and resulting charges for five different categories of employees — secretary, engineer 6, engineer 2, engineer 1, and CAD operator — that document, dated November 13, 1997, is not contemporaneous to the August 17 and August 22 letters. See Manry v. Hendricks, 66 Ga. App. 442, 453 (18 SE2d 97) (1941) (“One thing is contemporaneous with a given transaction when it is so related in point of time as reasonably to be said to be a part of such transaction.”). Newell cannot rely upon the invoice as the key to provide the element of consideration. Nothing in the two letters or draft scope of work that Newell contends form the written contract enables a reader to determine the hourly rate that Jordan Jones would charge for its work.

Decided August 23, 2012

Baker, Donelson, Bearman, Caldwell & Berkowitz, Steven G. Hall, H. Fielder Martin, for appellant.

Smith, Currie & Hancock, Kent P. Smith, Robert O. Fleming, Jr., Joseph C. Staak, for appellee.

It is true, as Newell argues, that the parties eventually must have agreed on hourly rates, which possibly could be determined by dividing the amounts paid for the first three tasks by the number of hours worked. But the information necessary to make that calculation — the number of hours worked — is not contained in the three documents that Newell contends form the written contract. “[W]hen essential terms of a contract are not in writing but instead must be implied or presumed from parol evidence of the parties’ conduct, the contract is not considered a written one, and the four-year limitation period set forth in OCGA § 9-3-25 controls.” Harris v. Baker, 287 Ga. App. 814, 815 (652 SE2d 867) (2007). Cf. Bd. of Regents &c. v. Tyson, 261 Ga. 368, 369-370 (1) (404 SE2d 557) (1991) (contract where essential term of consideration had to be implied from the parties’ conduct was not a written contract for sovereign immunity purposes).

Because the parties’ contract was not wholly in writing, the entire contract is considered to be one in parol, and the four-year statute of limitation applies. Jankowski v. Taylor, Bishop & Lee, 154 Ga. App. 752, 754-755 (2), (3) (269 SE2d 871) (1980). The trial court properly concluded that Newell’s action was time-barred and properly granted Jordan Jones summary judgment.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


text:
    A12A1152.
    ADCOCK v. THE STATE.
    (731 SE2d 365)
   McFadden, Judge.

John T. Adcock was convicted of criminal attempt to commit murder, two counts of aggravated assault on a peace officer, four counts of aggravated assault, aggravated battery, three counts of criminal damage to property, and possession of a firearm during the commission of a crime. He appeals the denial of his motion for new trial, arguing that the trial court erred by failing to charge the jury on justification and by failing to conduct a pretrial hearing on his claim of immunity. Because no evidence supported a justification charge and because the trial court’s failure to conduct an evidentiary hearing before ruling on the claim of immunity was not reversible error, we affirm Adcock’s convictions.

In April 2008, Beau Weathers, a civilian code enforcement officer, notified Adcock that his property was in violation of the municipal code. Weathers gave Adcock 15 days to correct the violations by cleaning up his property and by bringing his vehicles into compliance with the code. He told Adcock that he would return in 15 days with tow trucks. Adcock replied that Weathers was not going to tow the vehicles.

Weathers returned to the property on April 23, and shortly afterward was joined by Charles William Capps, Jr., a captain with the Warner Robins Police Department, and three tow truck drivers. Weathers and Capps discussed Adcock’s failure to correct the code violations with Adcock in his front yard. At some point, Adcock walked to his front door, opened the screen door, and retrieved a shotgun. Adcock began firing toward Weathers, Capps and the tow truck operators. He then began shooting with a semiautomatic weapon, even as other officers arrived On the scene. In the course of his shooting, Adcock hit Weathers in the shoulder, arm and face, and damaged the three tow trucks. Neither Weathers nor Capps had threatened Adcock or pointed a gun at him; Weathers did not even carry a weapon.

1. Adcock argues that the trial court should have instructed the jury on the justification defenses of self-defense, defense of habitation and defense of property. He correctly asserts that “[t]he trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge.” (Citations omitted.) Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991). “Here, contrary to [Adcock’s] assertion, the evidence did not support a charge on justification.” Morgan v. State, 303 Ga. App. 358, 360 (1) (693 SE2d 504) (2010).

There was no evidence of any imminent threat of harm that would justify Adcock’s use of force under OCGA § 16-3-21 (a); no evidence of an unlawful entry into Adcock’s habitation that would justify his use of force under OCGA § 16-3-23; and no evidence of tortious or criminal interference with Adcock’s real or personal property that would justify his use of force under OCGA § 16-3-24. The trial court did not err in refusing to instruct the jury on justification. See Hicks v. State, 287 Ga. 260, 262 (2) (695 SE2d 195) (2010) (“Because no construction of the evidence would support a finding that appellant shot in self-defense, the trial court properly refused to charge on that issue.”) (citations and punctuation omitted); Reese v. State, 289 Ga. 446, 447-448 (2) (711 SE2d 717) (2011); Fair v. State, 288 Ga. 244, 254 (2) (A) (702 SE2d 420) (2010) (“[Generally the use of force in defense of habitation is justified only where there is an unlawful entry.”) (emphasis in original); Powell v. State, 154 Ga. App. 568, 570 (2) (269 SE2d 70) (1980) (no need to charge on justification when the evidence did not show that the force defendant used was necessary to prevent or terminate a trespass or other tortious or criminal interference with property).

Although Adcock indicated that he believed that Weathers and Capps were “stealing” his vehicles, that belief was unfounded. And by their terms, the three defenses require that the defendant reasonably believes that such use of force is necessary. See Boyd v. State, 284 Ga. 46, 49 (4) (663 SE2d 218) (2008) (in absence of evidence showing reasonable belief on defendant’s part that wielding a knife in a manner likely to cause death or great bodily harm was necessary in order to prevent his own death or great bodily injury, court did not err in refusing to give requested charge on OCGA § 16-3-21 (a) justification); Philpot v. State, 311 Ga. App. 486, 489 (3) (716 SE2d 551) (2011) (under the facts, “there could be no reasonable belief that stabbing the victim was necessary to prevent or terminate the other’s unlawful entry into or attack upon a motor vehicle, and thus no basis for an instruction on defense of habitation” under OCGA § 16-3-23) (citation and punctuation omitted). The trial court therefore did not err in refusing to charge justification.

2. Adcock argues that the trial court erred by failing to conduct a hearing before trial on his claim of immunity to prosecution based on the affirmative defenses. In Fair v. State, 284 Ga. 165, 166 (1) (664 SE2d 227) (2008), our Supreme Court held that a trial court must rule on a motion for immunity before trial. Conceding that no authority requires a trial court to conduct an evidentiary hearing before ruling on an immunity claim, Adcock nonetheless argues that the trial court’s failure to conduct such a hearing was reversible error.

Decided August 23, 2012.

David G. Daniell, for appellant.

George H. Hartwig III, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

Pretermitting whether the failure to conduct such a hearing could ever constitute reversible error, we have no trouble in concluding that it did not constitute reversible error here. Because Adcock chose to represent himself, the trial court conducted multiple hearings before trial. Several of these hearings involved Adcock’s claim that the state had failed to provide discovery. In response to Adcock’s concerns, the trial court directed the state to submit all discovery to the court as well as to Adcock. The trial court reviewed the discovery in the course of resolving Adcock’s claims and therefore was familiar with the facts of the case. The court engaged in colloquy with Adcock because of his self-representation and became familiar with his contentions regarding justification. Therefore, when the court denied Adcock’s motions for immunity before trial, it was familiar with the factual basis of the claims. Additionally, although Adcock requested a pretrial ruling on his immunity claim, he never requested an evidentiary hearing. And, in any event, given the absence of evidence to support the justification defenses, Adcock’s claim of immunity is baseless, and any error in failing to conduct an evidentiary hearing did not harm him.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


author: McFadden Judge.

text:
    A12A1296.
    LACKLEY v. THE STATE.
    (731 SE2d 371)
   McFadden Judge.

Monesha Lackley was indicted for felony murder, aggravated assault and armed robbery. Pursuant to a plea agreement, the state dismissed the felony murder and aggravated assault charges, and Lackley pled guilty to armed robbery. The trial court imposed a twenty-year sentence, ordering Lackley to serve fifteen years in confinement and the remaining five years on probation. Lackley filed a motion to modify the sentence, which the trial court denied. Lackley appeals, arguing that the sentence of fifteen years in confinement violates the prohibition of the Eighth Amendment of the United States Constitution against cruel and unusual punishment. However, the twenty-year sentence does not exceed the permissible maximum for the offense to which Lackley pled guilty. See OCGA § 16-8-41 (b) (sentencing range of ten to twenty years for armed robbery). A“sentence which falls within statutorily mandated parameters is not subject to attack on Eighth Amendment grounds.” (Citations and punctuation omitted.) Inglett v. State, 239 Ga. App. 524, 529 (9) (521 SE2d 241) (1999). Accordingly, the trial court did not err in denying the motion to modify the legally appropriate sentence for Lackley’s guilty plea to armed robbery. See Trimble v. State, 274 Ga. App. 536, 537 (1) (618 SE2d 163) (2005), disapproved in part on other grounds, Miller v. State, 285 Ga. 285, 287 (676 SE2d 173) (2009).

Decided August 23, 2012.

Gina Bernard, for appellant.

Robert J. James, District Attorney, Diana V. Kovach, Cynthia M. Zurawsky, Assistant District Attorneys, for appellee.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


author: Mikell, Presiding Judge.

text:
    A12A0924.
    CLARKE v. THE STATE.
    (731 SE2d 100)
   Mikell, Presiding Judge.

Having been convicted by a jury of nine counts of felony theft by taking, Sandra Clarke appeals from the trial court’s denial of her motion for a new trial, arguing that the evidence was insufficient and alleging ineffective assistance of counsel. For the following reasons, we affirm.

1. Clarke contends that the evidence was insufficient to support her conviction.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

So viewed, the record shows that Clarke, an attorney, began working with the law firm Sliz/McKinney in May 2003. Initially, she rented office space from the firm while handling her own clients through Gwinnett County’s indigent defense program and assisting the firm on other cases for an hourly fee. She was not obligated to share her indigent defense earnings with Sliz/McKinney. In November 2003, Clarke was unable to pay increased rent to the firm, so the parties entered into a new agreement. The firm paid her $50,000 per year, and she stopped paying rent. Jan McKinney, one of the lawyers at Sliz/McKinney, testified that Clarke became an employee, and that “anything that she earned as far as a fee was the property of the firm, whether it was an appointed case, a retained case, whatever it was.” Clarke, however, contended that she was an independent contractor and that her indigent defense fees belonged to her and were not part of her agreement with the firm. On May 14, 2008, a grand jury indicted Clarke on 43 counts of theft by taking in violation of OCGA § 16-8-2 related to payments she received for indigent defense work, but did not transmit to the firm. The trial court granted Clarke’s plea in bar based upon a statute of limitation defense as to 33 misdemeanor counts. The court directed a verdict on one felony count, and the jury returned a guilty verdict on the remaining nine felony counts.

(a) In her first enumeration, Clarke asserts that the state failed to prove that she had criminal intent, and that the issue is therefore a civil, rather than criminal matter. Clarke also contends that she kept the indigent defense money while acting under a claim of right in that “she believed she was entitled to those proceeds.”

OCGA § 16-8-2 pertinently provides that “[a] person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property ....” But one who takes under a fair or honest claim of right does not commit larceny or theft. Notwithstanding that OCGA § 16-8-2 is not designed to punish a simple breach of contract, the presence of intent distinguishes theft by taking from breach of contract. There was evidence of intent in the instant case.

For example, it is undisputed that Clarke wrote letters to indigent defense clients on Sliz/McKinney letterhead, entered the hours she worked on indigent defense cases into the firm’s time and billing software system, and listed the firm’s address and/or telephone number on appointment of counsel and first appearance documents for indigent defense clients. Renee Brown, Sliz/McKinney’s bookkeeper, testified that the firm provided Clarke with color-coded files for her indigent defense cases and that the receptionist opened and managed those files for her. However, most of the indigent defense payments were sent to Clarke at a post office box, not at the firm’s address.

In July 2004, the firm received a check for about $ 1,600, made out to Clarke from Gwinnett County for indigent defense services she performed for multiple clients. As the county does not allow a firm to be paid for indigent defense work, all checks are made out to the individual lawyer. Some of the client work covered by that check had been done before Clarke’s November 2003 agreement with the firm, and some had been done after the agreement was in place. After a discussion with McKinney about which work was done when, Clarke wrote a check to the firm for approximately $761 to cover the amount she received for work done after her new employment agreement was in place. When Sliz/McKinney did not receive any more indigent defense monies from Clarke, McKinney asked Clarke why the firm was not getting paid and Clarke said she had been too busy to bill the time. Later, in a meeting held around the time Clarke left the firm, in March 2005, Clarke told McKinney that she had billed the county and was just waiting for the checks to be sent to the firm. At other meetings held after Clarke left the firm, McKinney testified that she told Clarke that Clarke owed the firm more than $17,000. Clarke countered that she owed about $9,500, but did not deny the debt. Clarke also sent the firm a letter saying, “If you’ll send me a bill, I’ll send you a check.” The evidence shows, however, that Clarke cashed indigent defense checks she received from the county and deposited the money in her personal account. The firm did not receive any indigent defense monies from Clarke after she left the firm.

Clarke counters that the evidence is insufficient because she did not conceal the existence of the post office box to which the indigent defense checks were sent, and that she wrote the $761 check to pay attorney Jeff Sliz for assisting her with a case and not because of the employment agreement.

In circumstantial cases, however,

the question [of] whether there is a reasonable hypothesis favorable to the accused is the jury’s province. Questions as to reasonableness are generally to be decided by the jury which heard the evidence, and finds beyond a reasonable doubt that there is no reasonable hypothesis other than guilt. The appellate court will not disturb that finding, unless the verdict of guilty is insupportable as a matter of law.

Further, “[conflicts in witness testimony are matters of credibility for the jury to resolve.” Clarke’s failure to deny the debt and promises to pay, coupled with evidence of her billing, timekeeping, and collection practices, provided evidence from which a jury could infer that Clarke was not acting under a claim of right, and that she had the intent required to commit theft by taking.

(b) Clarke further contends that the evidence was insufficient in that the state failed to prove the indigent defense money she received was the property of Sliz/McKinney. Specifically, she argues that the state failed to prove there was a valid employment contract requiring her to pay the firm the proceeds from her indigent defense work, and that the weight of the evidence showed that she was an independent contractor rather than an employee.

Pretermitting whether Clarke was an employee or independent contractor, the evidence shows that an agreement existed between Clarke and Sliz/McKinney for the payment of indigent defense monies to the firm. While there was no written contract, there was an oral agreement with specific terms related to Clarke’s obligation to pay her indigent defense monies to the firm. McKinney testified that Clarke became an employee in November 2003, when she was given a salary: “At that point in time, the deal changed. She was now an employee of the firm. And so anything that she earned as far as a fee was the property of the firm, whether it was an appointed case, a retained case, whatever it was.” McKinney testified on cross-examination, when asked about the “definite terms” of the agreement, that Clarke “was supposed to pay all monies that were received by her for legal services to the firm. In exchange, she would get a salary.”

This evidence, coupled with the evidence discussed in Division 1 (a), was sufficient. The resolution of evidentiary conflicts and inconsistencies is a matter of credibility for the finder of fact, not this Court, and the jury chose to believe Sliz/McKinney. Further, where some evidence supports each necessary element of the state’s case, the evidence is sufficient for this Court to uphold the jury’s verdict.

(c) Contrary to Clarke’s assertions, the Statute of Frauds, OCGA § 13-5-30 (5), which provides that an agreement must be in writing if it cannot be performed within one year of its making, is not implicated here. Full performance of a contract, which has been accepted, constitutes an exception to the Statute of Frauds, pursuant to OCGA § 13-5-31 (2). Because the record demonstrates that Sliz/McKinney performed its part of the agreement in paying her a salary starting in November 2003, providing rent-free office space, and offering administrative support, among other things, this contention is without merit. “[T]he Statute of Frauds does not bar the enforcement of a contract where there has been performance on one side, accepted by the other in accordance with the contract.”

(d) Clarke also contends that the evidence was insufficient to show that Sliz/McKinney was the true owner of the property because Sliz and McKinney had not formed a legal partnership. In contravention of Court of Appeals Rule 25 (c) (2), Clarke cites no legal authority supporting this claim of error, thus, it is waived.

2. Clarke also contends that she received ineffective assistance of counsel because her trial lawyer failed to file a special demurrer to an allegedly imperfect indictment. The indictment, she argues, alleged that the crimes were committed between two dates rather than on dates “unknown to the Grand Jury.” Clarke argues that if the court had granted the special demurrer and the state had reindicted her, the new indictment may have fallen outside the statute of limitation.

“To show ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense.” The performance and prejudice prongs are mixed questions of fact and law, and “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Where a defendant

fails to establish that his counsel’s performance prejudicially affected his defense, we need not evaluate whether counsel’s performance was deficient, because failure to satisfy either prong of the Strickland v. Washington standard is fatal to an ineffective assistance claim.

Here, Clarke’s trial counsel testified that he chose not to file the demurrer because, based on his professional judgment, the phrase “unknown to the Grand Jury,” was not material to the language of the indictment. While he testified at the hearing on Clarke’s motion for a new trial that he should have filed a demurrer, he also testified that neither he nor Clarke were confused by the allegations in the indictment and that Clarke had adequate notice of the accusations against her. The indictment accused Clarke of crimes committed between various dates specific to each count, between 2004 and 2008. The indictment did not allege that the dates of the offenses were material.

[Wjhere the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitations, as long as the defendant is not surprised or prejudiced by presentation of evidence that the offenses occurred at a time substantially different from that alleged in the indictment.

Also, the charges against Clarke were based on funds she retained, which were disbursed to her on different dates and which related to the representation of specific indigent defense clients. Clarke does not show how the state reasonably could have narrowed the dates in the indictment, as it is unclear when she developed the requisite intent as to each charge. Further, Clarke has failed to “demonstrate that the length of the period in which the indictment alleged the crimes were committed materially affected [her] ability to present a defense.” Clarke contends that if her trial counsel had filed a special demurrer and gotten the first indictment quashed, the state might have filed a new indictment outside the statute of limitation. However, it is equally possible that the state would have reindicted Clarke within the statute of limitation. “[H]arm cannot be shown by mere speculation and conjecture unsupported by the record.” Clarke has “failed to demonstrate a reasonable likelihood that, but for defense counsel’s failure to demur to the indictment, the outcome of the trial would have differed.” This claim of error fails.

Decided August 10, 2012

Reconsideration denied August 24, 2012

Brown & Gill, Angela B. Dillon, for appellant.

Daniel J. Porter, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller and Ray, JJ., concur.

       (Footnote omitted.) Dawson a State, 271 Ga. App. 217 (1) (609 SE2d 158) (2005).

       Clarke has failed to indicate the method by which her enumerated errors were preserved for our review as required by Court of Appeals Rule 25 (a) (1). “Although we have reviewed each of the delineated enumerations, this Court will not cull the record in search of error on behalf of a party. Accordingly, if we have missed something in the record or misconstrued an argument, the responsibility rests with counsel.” Burrowes v. State, 296 Ga. App. 629, 631 (1) (675 SE2d 518) (2009) (punctuation omitted.)

       OCGA § 16-8-10 (2).

       See Tukes v. State, 250 Ga. App. 117, 118 (1) (a) (550 SE2d 678) (2001) (the presence of fraudulent intent distinguishes theft by conversion from breach of contract).

       (Citation and footnote omitted.) Crutchfield v. State, 269 Ga. App. 69, 71 (1) (603 SE2d 462) (2004).

       (Citations omitted.) Id. at 69 (1).

        Brown v. State, 302 Ga. App. 641, 643 (1) (692 SE2d 9) (2010) (criminal intent to deprive owner of property may be inferred from circumstantial evidence).

        Dawson, supra.

       Id.

       (Citation and punctuation omitted.) Amax, Inc. v. Fletcher, 166 Ga. App. 789, 790 (1) (305 SE2d 601) (1983). See also OCGA § 13-5-31 (3); Ford Clinic, Inc. v. Potter, 246 Ga. App. 320, 322 (540 SE2d 275) (2000) (contract is removed from operation of Statute of Frauds where one party has partially performed such that a fraud on that party would result if the court did not compel performance).

       (Footnote omitted; emphasis supplied.) Suggs v. State, 272 Ga. 85, 87 (4) (526 SE2d 347) (2000). Accord Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).

       (Footnote omitted.) Suggs, supra.

       (Citations omitted.) Veasley v. State, 312 Ga. App. 728, 731 (2) (719 SE2d 585) (2011).

       (Citations and punctuation omitted.) Davidsonv. State, 231 Ga.App. 605, 608 (2) (b) (499 SE2d 697) (1998).

        See Robbins v. State, 290 Ga. App. 323, 329 (4) (a) (659 SE2d 628) (2008).

       Id.

       See Wallace v. State, 253 Ga. App. 220, 222 (3) (558 SE2d 773) (2002) (counsel not ineffective for failing to file a special demurrer to allegedly flawed indictment where State was not barred from reindicting defendant).

       (Punctuation and footnote omitted.) Foster v. State, 286 Ga. App. 250, 254 (3) (a) (649 SE2d 322) (2007).

       (Citation omitted.) Robbins, supra.


author: Phipps, Presiding Judge.

text:
    A12A0989.
    BRADLEY v. THE STATE.
    (731 SE2d 371)
   Phipps, Presiding Judge.

After a bench trial, Bobby Lee Bradley was convicted of theft by receiving stolen property. He appeals, contending that the evidence was insufficient to support the conviction because the state failed to show that he knew or should have known that the shotgun he possessed was stolen. Finding no error, we affirm.

Upon a finding of guilt following a bench trial, the presumption of innocence no longer applies, and the appellate court construes the evidence in favor of the judge’s determination of [Bradley’s] guilt. The appellate court does not weigh the evidence or determine witness credibility, but merely determines the sufficiency of the evidence.

So construed, the evidence showed the following. Gordon Walton testified that he kept a double-barrel shotgun and a rifle in his pickup truck. In April 2010, he noticed that his truck had been broken into and the guns were missing; he had last seen the guns a few weeks to a month earlier. Walton contacted the sheriff’s office to report the theft, and on April 7, 2010, an investigator went to Walton’s home to investigate.

Albert Nunnally testified that Bradley offered to sell him a double-barrel shotgun for $40. According to Nunnally, “it was a good deal for that type of gun.” Nunnally purchased the shotgun from Bradley. About two weeks earlier, Walton, who was Nunnally’s friend and Bradley’s cousin, had told Nunnally that someone had stolen his guns. Nunnally contacted Walton and showed him the shotgun he had purchased from Bradley. Walton identified the shotgun as the one that had been taken from his truck. Walton then contacted the investigator and reported that Nunnally had returned the shotgun after allegedly having purchased it from Bradley.

On April 27, 2010, the investigator went to Bradley’s home and spoke with him about the shotgun. At first, Bradley denied having “ever sold any guns,” but then he admitted to the investigator that he had sold the gun to Nunnally. Bradley told the investigator that he had had the shotgun for about two years, having bought it from a co-worker (whose name he did not know). After the state laid a foundation for its admission, the court admitted into evidence, without objection, a recording of the investigator’s conversation with Bradley.

At trial, the defense called as a witness Bradley’s nephew. The nephew testified that he had left the shotgun at Bradley’s house after a friend left it at the nephew’s house, and that the nephew did not know that the shotgun had been stolen. Bradley did not testify at trial.

“A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner.”

In a theft by receiving case, guilty knowledge is not shown by mere possession of the goods. However, possession coupled with other circumstances and evidence may be used to infer the knowledge required by statute. Knowledge maybe inferred from circumstances which would excite the suspicions of an ordinarily prudent man. Whether the explanation of the possession offered by the defendant in his statement alone is a satisfactory explanation, is a question for the [factfinder].

Bradley contends that the state failed to prove that he knew that the shotgun had been stolen; he asserts that his mere possession was not sufficient to support the conviction, and that there was a reasonable explanation as to why he had possessed the shotgun — namely, that his nephew had left it at his house.

[W]here the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the factfinder. Because the factfinder has heard the witnesses and observed them testify, it is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court.

The state’s case against Bradley was not based solely upon possession. The evidence included facts and circumstances from which Bradley’s knowledge that the shotgun was stolen could have been inferred. For example, Bradley made contradictory statements to the investigator concerning whether he had sold a gun to anyone; Bradley’s own witness contradicted Bradley’s statements regarding how and from whom Bradley had acquired the shotgun; and Bradley’s statement that he had acquired the shotgun two years earlier (from a co-worker whose name he did not know) conflicted with Walton’s testimony as to when his truck was broken into and the shotgun was stolen. The conflicts in the evidence created a credibility issue regarding the circumstances surrounding Bradley’s possession of the shotgun, which the factfinder resolved adversely to him. Notably, there was also evidence that Bradley’s asking price of $40 for that type of working shotgun was “a good deal.”

Decided August 24, 2012.

Sara E. Meyers, for appellant.

Dennis C. Sanders, District Attorney, William P. Doupé, Assistant District Attorney, for appellee.

In this case, there was sufficient evidence authorizing the finder of fact to reject Bradley’s defense and find him guilty beyond a reasonable doubt of the crime of theft by receiving stolen property.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

       OCGA § 16-8-7.

        Boyd, v. State, 291 Ga. App. 528, 529-530 (662 SE2d 295) (2008) (footnotes omitted).

       The investigator testified that Bradley was not under arrest or in custody when the conversation occurred, and he told Bradley that he was not under arrest at the time. Bradley has not challenged, here or below, the admissibility of his statement to the investigator or of the recording of the conversation. See generally Williams v. State, 270 Ga. App. 480, 482 (606 SE2d 671) (2004) (in order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground; a defendant who fails to object to the admission of a custodial statement waives any such objection); Anguiano v. State, 313 Ga. App. 449-450 (721 SE2d 652) (2011) (appellant’s pre-arrest statement to law enforcement officer made voluntarily in a noncustodial setting was admissible even though he was not given Miranda warnings).

       OCGA § 16-8-7.

        Ridgeway v. State, 310 Ga. App. 6, 8 (712 SE2d 84) (2011) (citation omitted).

        Boyd, supra at 530 (footnote omitted).

       See Cheek v. State, 170 Ga. App. 230, 231 (1) (316 SE2d 583) (1984).

       See Leachman v. State, 226 Ga. App. 98, 100 (485 SE2d 587) (1997); see also Ridgeway, supra at 8-9; DeLong v. State, 270 Ga. App. 173, 174-175 (1) (606 SE2d 107) (2004).

       See generally Martin v. State, 300 Ga. App. 39, 40 (1) (684 SE2d 111) (2009) (guilty knowledge may be inferred from a defendant’s selling the goods at a grossly undervalued price) .

        See Duncan v. State, 278 Ga. App. 703, 707 (1) (629 SE2d 577) (2006); Leachman, supra; Parrott v. State, 188 Ga. App. 564, 566 (373 SE2d 828) (1988).


text:
    A12A1159.
    THE STATE v. HAMBY et al.
    (731 SE2d 374)
   Mikell, Presiding Judge.

The state appeals the trial court’s grant of the motions to suppress marijuana and cocaine filed by co-defendants Kathy L. Hamby and Newman Clark Smith. For the following reasons, we affirm.

At a hearing on a motion to suppress, the trial judge sits as the trier of fact.

In cases involving the review of the grant or denial of motions to suppress or motions in limine, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous.

So considered, the evidence shows that, close to midnight on July 7, 2008, Roswell Police Officer Orrick was patrolling the highest crime area in Roswell where Studio 6, an extended stay hotel, was located. As he was driving through the parking lot of the hotel, he encountered Hamby, who waved at him. Orrick, in uniform, rolled down the passenger window of his marked police car and started talking with Hamby, who said she was staying there with her husband. Orrick advised her of recent robberies in the area and that she should be careful and remove any valuables from her vehicle. Hamby told Orrick that her name was Kathy Lynn Simms and gave him her birth date. Orrick wrote down the name and, as he was driving away, ran it through the Georgia Crime Information Center to check for outstanding warrants. The system reflected that this driver’s name was not on file, which indicated to Orrick that this was a false name. Orrick turned around, encountered Hamby, and again asked her for her name and date of birth. Hamby gave Orrick the same information and told him that she did have a driver’s license in her hotel room and that Orrick could follow her to the room and she would get it.

Before Orrick and Hamby arrived at the hotel room, two other officers had come to assist Orrick. When they arrived at the room, Hamby told Orrick her husband was inside and Orrick knocked on the door. Smith opened the door, wearing only a tee shirt and shorts. Orrick noticed that the air conditioning was on high and that really cold air was coming out of the room. Despite the cool temperature, Smith was sweating, his pupils were dilated, and he was licking his lips. These facts raised Orrick’s suspicion that Smith was using a central nervous system stimulant, such as cocaine. Orrick asked Hamby where her identification was located, and she indicated her purse on the kitchen table. Orrick asked Smith to bring the purse to him, and Smith got the purse but appeared to remove an item from it and then appeared to be covering something up on the table. Orrick told him to stop making movements and to bring him the purse. Smith started toward Orrick, but at one point stopped, turned his back, and again began to rifle through the purse. At that point, Orrick “stepped inside the doorway” because he feared Smith was searching for a weapon, and told Smith to stop, which he did. Hamby did not find her identification in her purse, but told Orrick it might be in a piece of red luggage on the floor inside the doorway. At this point, all three police officers were “just inside the door frame.” Orrick asked Hamby if he could search this luggage and she acquiesced. No identification or illegal items were found.

Orrick had noticed three zipper bags on the kitchen table, and he pointed to them and asked if Hamby’s identification could be in any of those. Both Hamby and Smith said they had no knowledge of those bags and they were not theirs. Regarding the bags as abandoned, Orrick began walking across the room to retrieve them, when he spotted a sandwich bag on the floor which contained marijuana. In one of the bags on the table, Orrick found five more bags of marijuana and in another he found a red glass smoking pipe commonly used for smoking methamphetamine. As he was walking back toward his sergeant, Orrick noticed an open bag on the bed with a lot of prescription bottles in it. When asked, Smith claimed the bag and consented to Orrick’s search of it. Orrick found an STP oil can in the bag and noticed that its false bottom was partly unscrewed. Inside, he found three packages of cocaine.

The state argues that Hamby and Smith “did not have a reasonable expectation of privacy in the abandoned property that was visible in plain view from the doorway of their hotel room and Appellee Smith gave consent to search the bag located on the bed as well as the rest of the room.”

The state concedes that Hamby and Smith had a constitutionally protected reasonable expectation of privacy in their hotel room. As the trial court found, Orrick’s two conversations with Hamby were appropriate first-tier encounters between police and citizen.

The argument of the state overlooks the issue of the entry of the three officers into the occupied hotel room without either probable cause, exigent circumstances, or consent. At the time Orrick went across the room to retrieve what he deemed to be abandoned three bags on the kitchen table, the most he had was a reasonable suspicion that Hamby had given a false name and that Smith might be under the influence of cocaine. At that point, no illegal substances had been seen by the officers, nor had any consent been given for their entry into the hotel room, as conceded by Orrick. Orrick acknowledged that he had not asked Hamby or Smith if they had had visitors to their room before retrieving the bags. He further acknowledged that “I don’t know if he [Smith] ever gave us permission to go into the room.” It was on his way to retrieve the bags that he noticed the baggie containing marijuana on the floor of the room.

The state relies on the consent of Smith to search his bag on the bed in order to overcome the initial illegality of the officers entering the room without permission.

The State has the burden of proving the validity of a consensual search and must show the consent is given “voluntarily.” Consent which is the product of coercion or deceit on the part of the police is invalid. Consent is not voluntary when it is the result of duress or coercion, express or implied.

Voluntariness of consent is determined by the totality of the circumstances using the standard of objective reasonableness. The inquiry is whether a reasonable person would feel free to decline the request to search or otherwise terminate the encounter.

If the trial court had, in writing, denied the motions to suppress, our analysis would be quite different. We might have affirmed that ruling, just as we affirm the decision which was in fact made. As always with this type case, we are not ruling that the trial court was required to reach the decision it did, but merely ruling that, as a matter of law, the decision the trial court did reach is permitted under Georgia and federal law.

Here, three uniformed officers had stepped into the hotel room without permission and Orrick directed Smith to retrieve Hamby’s purse, to stop moving around, and asked about the luggage and other bags in the room. Just because, following Orrick’s further entry into the room to retrieve the three unclaimed bags, Smith acquiesced in Orrick’s request to search his bag does not fulfill the state’s burden to show that the consent was voluntary. Therefore, we affirm the trial court’s grant of Hamby’s and Smith’s motions to suppress.

Decided August 24, 2012.

Paul L. Howard, Jr., District Attorney, Joshua D. Morrison, Assistant District Attorney, for appellant.

Ronda K. Graham, Charles T. Magarahan, for appellees.

Judgment affirmed.

Miller and Ray, JJ., concur.

       Three hearings were held on the motions to suppress. Following the first two, the trial court orally announced that he was denying the motions. No written order to this effect was ever entered. Thereafter, the case was reindicted and assigned to another judge who, following the third hearing, granted the motions and entered the order appealed.
      A trial court’s oral pronouncement is not a judgment until it is put in writing and entered as the judgment. Although a trial court’s oral pronouncements on the record may provide insight on the intent of its subsequent written judgment, discrepancies between the two pronouncements must be resolved in favor of the written judgment. Thus, the [trial] court’s oral statements on the record were not binding.
      (Citations omitted.) In the Interest of L. H., 242 Ga. App. 659, 660 (2) (530 SE2d753) (2000). See also Williams v. City of LaGrange, 213 Ga. 241, 242 (1) (98 SE2d 617) (1957).

        Page v. State, 296 Ga. App. 431 (1) (674 SE2d 654) (2009).

       (Citation and punctuation omitted.) Self v. State, 245 Ga. App. 270, 272-273 (2) (537 SE2d 723) (2000).

        Snider v. State, 292 Ga. App. 180, 182 (663 SE2d 805) (2008). Cf. State v. Woods, 311 Ga. App. 577, 578 (1) (a) (716 SE2d 622) (2011).

        Ware v. State, 309 Ga. App. 426, 427-428 (710 SE2d 627) (2011).

       (Citations, punctuation and footnote omitted.) State v. Jourdan, 264 Ga. App. 118, 120-121 (1) (589 SE2d 682) (2003). See also Woods, supra at 581 (2) (c).

       Id. at 121.

       Id.

       Id. (mere acquiescence to the authority asserted by a police officer cannot substitute for free consent). Compare Fincher v. State, 276 Ga. 480, 481 (2) (578 SE2d 102) (2003) (voluntary consent given an hour after initial improper entry into the curtilage cured any defect in the warrantless entry).


author: Barnes, Presiding Judge.

text:
    A12A1380.
    TATE v. THE STATE.
    (731 SE2d 377)
   Barnes, Presiding Judge.

Proceeding pro se, Christopher Tate appeals the trial court’s order denying his extraordinary motion in arrest of judgment. He contends that the court erred because his indictment failed to charge “proper venue,” he was improperly convicted and sentenced, and his guilty plea was involuntary and not intelligent because he was not informed of the essential elements of the charge against him. For the reasons that follow, we affirm.

Tate was indicted for statutory rape, sodomy, aggravated child molestation, and two counts of child molestation. Pursuant to a negotiated plea, the trial court accepted Tate’s plea of guilty to statutory rape and granted the State a nolle prosequi order on the other counts. Tate was sentenced on August 12, 2010 to fifteen years, seven to be served in confinement followed by eight on probation with special conditions.

In March 2011, Tate filed an extraordinary motion in arrest of judgment, which the trial court dismissed a week later because the motion included no certificate of service. In April 2011, Tate filed a second motion in arrest of judgment, this time including a certificate of service, and the trial court ordered a hearing on the motion in late May 2011. Before the hearing, Tate filed a motion seeking court-appointed counsel to represent him at the upcoming hearing, which the trial court denied because the proceeding did not involve a direct appeal for which appointed counsel was required.

The record does not indicate whether a hearing was held or not, but in July 2011, Tate filed a notice of appeal, stating his desire to appeal “from the judgment of conviction and sentence entered.” This court dismissed the appeal in October 2011 on jurisdictional grounds because Tate filed the appeal more than ten months from the judgment of conviction and sentence entered on him, and more than thirty days after the trial court’s March 2011 order on Tate’s first motion in arrest of judgment. We noted that the record contained no order disposing of Tate’s second motion in arrest of judgment.

The trial court subsequently issued a thoughtful, detailed order denying Tate’s second extraordinary motion in arrest of judgment. The court addressed all of the arguments in the motion, holding first that because place was not an element of any of the offenses charged, the indictment sufficiently charged him with having committed the offenses in Whitfield County. Second, the court held that Tate was not improperly convicted of more than one crime for the same conduct, because he pled guilty to and was sentenced for only one crime, statutory rape. Finally, the court held that Tate could not withdraw his guilty plea because the indictment was not void, his plea was voluntary, and he filed his motion after the term in which he was sentenced.

Tate appeals this order, arguing that the State failed to charge venue, the charge against him was not supported by the evidence, and his plea was involuntary. We affirm, because “[u]nder OCGA § 17-9-61 (a), a motion in arrest of judgment must be based on a non-amendable defect that appears on the face of the record or pleadings and ‘must be made during the term at which the judgment was obtained.’ OCGA § 17-9-61 (b).” Lay v. State, 289 Ga. 210, 211 (2) (710 SE2d 141) (2011). While Tate raised a proper ground for a motion in arrest of judgment by claiming that his indictment failed to allege an essential element of the crime, his motion was made outside the term of court in which he pled guilty. In Whitfield County, the January term begins on the second Monday of that month, and the July term begins on the second Monday of that month. OCGA § 15-6-3 (12) (B). Tate entered his guilty plea in August 2010, during the July 2010 term, but did not file even his first motion in arrest of judgment until March 2011, during the January 2011 term. Accordingly, the motion was untimely, and the trial court did not err in denying it. Thomas v. State, 291 Ga. 18 (727 SE2d 123) (2012).

Judgment affirmed.

Adams and McFadden, JJ., concur.

Decided August 24, 2012.

Christopher K. Tate, pro se.

Kermit N. McManus, District Attorney, Mark P. Higgins, Jr., Herbert M. Poston, Jr., Assistant District Attorneys, for appellee.