text:
    A12A0558.
    MORRIS et al. v. DENTFIRST, P.C. et al.
    (727 SE2d 515)
   MlKELL, Presiding Judge.

Kamiria Morris and Leon Morris appeal from the trial court’s grant of summary judgment in favor of Dentfirst, P.C., and Michael Billingsley, D.D.S., in a medical malpractice action. For the reasons that follow, we affirm.

“We review de novo a trial court’s grant of summary judgment, construing the evidence most favorably to the nonmovant.”

So viewed, Kamiria Morris went to Dentfirst complaining of tooth pain on February 9, 2009, and returned on February 10, 2009, when Billingsley extracted her tooth. She returned to Dentfirst at least twice, on February 11 and 23, 2009, and visited an emergency provider on March 8, 2009, each time complaining of pain and swelling. She alleges, and it is undisputed, that on March 10, 2009, she returned to Dentfirst, where Billingsley x-rayed her mouth, found tooth fragments, and surgically removed them.

The Morrises filed their complaint on February 25, 2011, more than two years after the February 10, 2009, date on which Kamiria Morris alleges her pain and suffering began, and more than one year after the tooth fragments were found, on March 10, 2009.

Dentfirst and Billingsley moved for summary judgment, alleging that Morris filed her complaint after the statute of limitation had run. Without holding a hearing, the trial court granted the motion. The Morrises appeal, raising four enumerations of error, all of which fail.

OCGA § 9-3-71 (a) provides that, “[e]xcept as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.”

OCGA § 9-3-72 provides, in pertinent part, that the “limitations of Code Section 9-3-71 shall not apply where a foreign object has been left in a patient’s body, but in such a case an action shall be brought within one year after the negligent or wrongful act or omission is discovered.”

There is no dispute over whether the Morrises knew or should have known, through the exercise of reasonable care or diligence, the cause of the alleged injury at an earlier date than either February 9, 2009, when they allege the pain began, or March 10, 2009, when the tooth fragments were found.

Decided April 19, 2012.

Donald Ellis, for appellants.

Coles Barton, Matthew S. Coles, Stephanie K. Wood, for appellees.

Pretermitting whether tooth fragments constitute a “foreign object” within the meaning of OCGA § 9-3-72, under either that Code section or OCGA § 9-3-71, the complaint was filed out of time. Accordingly, we affirm.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

       (Footnote omitted.) Vaughan v. WellStar Health System, 304 Ga. App. 596, 597 (696 SE2d 506) (2010).

        Abend v. Klaudt, 243 Ga. App. 271, 273 (1) (531 SE2d 722) (2000) (one-year statute of limitation begins to run only when plaintiff knew or by the exercise of ordinary care should have learned that foreign object was causing injury).

        Brown v. Coast Dental of Ga., 284 Ga. App. 244, 245 (643 SE2d 740) (2007) (limitation period begins to run when symptoms of injury first manifest to patient).


source: Caselaw Access Project

author: MlKELL, Presiding Judge.

license: Public Domain

text:
    A12A0605.
    TIMBERLAKE v. THE STATE.
    (727 SE2d 516)
   MlKELL, Presiding Judge.

After a jury trial, John Paul Timberlake was convicted of one count of misdemeanor obstruction of a law enforcement officer. He appeals, arguing that the evidence was insufficient to show that he hindered the officer from performing his duties, and that the trial court erred in allowing the state’s introduction of bad character evidence. For the reasons that follow, we affirm.

“When reviewing a challenge to the sufficiency of the evidence used to support a conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence.” We determine only whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt, and do not weigh evidence or determine witness credibility.

Timberlake was pro se at trial, and did not testify or present evidence. Viewed in the light most favorable to the verdict, the evidence reflects that while on patrol, Officer Antoine Acker of the Decatur Police Department stopped a vehicle because it had no license tag. The entire traffic stop was recorded on the patrol car’s video equipment, and the video was admitted into evidence and played for the jury. The video shows Acker approaching the driver’s side of the vehicle and asking the driver for his license, registration, bill of sale, and date of purchase of the vehicle. Acker asked about the date of purchase because a driver has 30 days from the date of purchase to register a vehicle. Timberlake, the sole passenger in the vehicle, told the officer that the car belonged to him, and began arguing with the officer about why the officer needed the paperwork. He did not give the officer the paperwork. After the officer returned to his patrol car, Timberlake got out of his vehicle, paperwork in hand, and stood in the roadway next to the officer’s window. The officer politely and repeatedly asked Timberlake to step out of the roadway for his own safety and to go to his own vehicle. Timberlake, after ignoring the officer’s requests and arguing with the officer, finally moved to the opposite side of the officer’s car, but did not return to his own vehicle as requested. In response to Timberlake’s questions about why he needed to return to his own vehicle, the officer said, “I don’t know if you have a weapon or anything on you.” Timberlake then said he was going to “strip” and began removing his clothing, over the officer’s objections, saying, “I’m going to take off the shirt... I could be carrying a weapon... [I will] prove I don’t have a weapon,” and continued to argue with the officer until the officer exited the patrol car and handcuffed him.

1. Timberlake contends that the evidence was insufficient to support a conviction for obstruction. OCGA § 16-10-24 (a) provides that “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.”

The officer testified that he arrested Timberlake for obstruction because Timberlake hindered his performance of his duties, as Umber-lake’s arguments and refusal to return to his vehicle prevented the officer from determining whether the driver of the vehicle had a valid license and whether he was a fugitive or was armed; Timberlake also prevented the officer from getting the car’s vehicle identification number. Further, the officer testified that Timberlake’s refusal to return to his own vehicle compromised Timberlake’s safety because he was standing in the roadway, and the officer’s safety, because the officer could not determine whether Timberlake had a weapon.

Contrary to Timberlake’s case citations and assertions, violence, threats, and force no longer are required elements to prove misdemeanor obstruction since the 1986 amendment of OCGA § 16-10-24. “Rather, we must look to the totality of the circumstances to determine if his arrest was authorized.” We have held that “[a]rgument... [and] stubborn obstinance . . . are all examples of conduct that may satisfy the obstruction element.” Further, Timberlake hindered the officer not just by his arguments and obstinance, but also by placing both his and the officer’s safety at risk by refusing to return to his vehicle. Timberlake also prevented the officer from obtaining information from the driver of the vehicle to determine if the driver’s license was current and if there was a violation of the law requiring a car to be registered within 30 days of purchase. Whether Timber-lake’s actions actually impeded the officer in the discharge of his duties was a decision for the trier of fact. We find the evidence sufficient for the jury to find Timberlake guilty of obstructing a police officer.

Decided April 19, 2012

Benjamin A. Davis, Jr., for appellant.

Sherry Boston, Solicitor-General, Matthew Ciccarelli, Assistant Solicitor-General, for appellee.

2. Timberlake argues that the trial court erred in allowing the state to introduce bad character evidence, over his objection, by permitting Acker to testify that based on statements Timberlake made during the traffic stop, Acker’s police training led him to believe Timberlake was a “sovereign citizen.” We find no merit in this contention because Timberlake made no objection on these grounds below. “Where an entirely different objection is presented on appeal, we cannot consider it because this is a court for review and correction of error committed in the trial court.”

Judgment affirmed.

Miller and Blackwell, JJ., concur.

       (Footnote omitted.) Mitchell v. State, 312 Ga. App. 293, 294 (1) (718 SE2d 126) (2011).

       Id.

         Stryker v. State, 297 Ga. App. 493, 494-495 (677 SE2d 680) (2009).

       (Citation omitted.) Id.

       (Citations omitted.) Pinchon v. State, 237 Ga. App. 675, 676 (516 SE2d 537) (1999).

        Arsenault v. State, 257 Ga. App. 456, 457 (1) (a) (571 SE2d 456) (2002) (refusal to obey lawful commands of an officer seeking to protect his own safety constitutes obstruction); Council v. State, 291 Ga. App. 516, 517-518 (2) (662 SE2d 291) (2008) (refusal to comply with officer’s lawful demand to remain in vehicle constitutes obstruction).

        Clark v. State, 243 Ga. App. 362, 365 (1) (532 SE2d 481) (2000) (where officer had reasonable suspicion driver was driving with expired tag, court found one may commit obstruction when hindering an officer in investigating an offense committed by another).

        Martin v. State, 291 Ga. App. 363, 367 (2) (b) (662 SE2d 185) (2008).

       (Citations and punctuation omitted.) Rogers v. State, 298 Ga. App. 895, 903 (6) (681 SE2d 693) (2009).


author: Dillard, Judge.

text:
    A12A0209.
    BOARD OF COMMISSIONERS OF CRISP COUNTY v. CITY COMMISSIONERS OF THE CITY OF CORDELE.
    (727 SE2d 524)
   Dillard, Judge.

The Board of Commissioners of Crisp County (“the Count’’) appeals the trial court’s grant of summary judgment to the City Commissioners of Cordele (“the City’’) and the denial of the County’s motion for summary judgment as to a contract dispute between the parties. The County essentially argues that the trial court erred by using parol evidence to construe an unambiguous contract rather than by looking to the document’s plain meaning, thereby rewriting the terms of the contract. For the reasons set forth infra, we affirm the trial court’s order.

At the outset, we note that “[s]ummary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” And on appeal, “we review the trial court’s grant of summary judgment de novo to determine whether the evidence of record, viewed in a light most favorable to the nonmoving party, demonstrates any genuine issue of material fact.”

So viewed, the record reflects that the County and the City entered into a Waste Service Agreement that was effective January 1, 1996. The terms of the contract were to commence upon its execution and end upon the fiftieth anniversary of same. And the agreement provided that the County had “created an Authority which plans to construct and operate a permitted municipal solid waste processing facility located in Crisp County,” referred to throughout the contract as the “Waste Processing Facility.”

The agreement further provided that the County desired “to own and operate the Crisp County Landfill for the benefit of all of the households located in Crisp County, including those located within the Cit/’ and that the City desired “to have the County process and/or dispose of all the household waste produced within the jurisdiction of the City... .’’Additionally, the agreement reflected the City’s desire to enter into the agreement with the County to convey property within the City to the County for the use of the facilities and services of the County.

The terms of the agreement defined the type of waste material to be accepted and covered, and the services that the County would provide. Specifically, Paragraph 5 of the agreement provides that “[t]he County will own and operate a Sanitary Landfill . . . for the disposition of Municipal Solid Waste,” with the City responsible for delivering its waste to the landfill at a site designated by the County, after which “the County will process and dispose of the Waste Material at the Landfill and/or the Waste Processing Facility.” In Paragraph 6, the agreement provides that “[t]he County shall perform the services required by this Agreement without compensation by the City.”

Thereafter, Paragraph 7 includes warranties by the City to the County, one of which is that the County “will assume responsibility for the collection of all Solid Waste Disposal Fees, including without limitation the residential disposal fees, levied in Crisp County, including the incorporated areas thereof, on or before July 1, 1996 . . . .” Paragraph 8 provides additional warranties to the City by the County, and states at the outset that it applies “[i]n the event that the Authority constructs and operates the Waste Processing Facility” and “for so long as the Waste Processing Facility is operating . . . .” One such warranty states that “it will rescind the Waste Disposal Fee for residential households located in Crisp County, including the incorporated areas thereof, during the period of operation of the Waste Processing Facility.”

The current dispute between the County and the City arose after the County issued a letter to the City Commissioners on July 27, 2009, which noted that its purpose was “to provide notice of a change in the County’s operation of the landfill.” The letter then briefly explained the history of the agreement between the City and the County, namely that the agreement “was made in anticipation of the construction and operation of a solid waste recycling facility,” that the intent “was to use the revenues from the recyclables to fund the cost of disposing residential solid waste from households in our county,” and that the agreement “stipulated that households in the County would not be charged a waste disposal fee as long as the waste processing facility was operating.”

In the next paragraph of the letter, the County explained that it had “abided by that provision since 1996 even though the waste processing facility center has never operated to the point of generating revenues from the recyclables” and that the “County Commission has subsidized the landfill operation from [its] general fund to cover the cost of disposing residential solid waste for no charge.” Accordingly, the letter gave notice that the County was “no longer in an economic position to continue to fund the disposal costs in the same manner” and that it would “impose a fee for disposal of residential solid waste from the incorporated areas of the county” effective August 31, 2009.

Thereafter, the City refused to pay any such fees to the County, and the County brought suit against the City, alleging that “[t]he Authority essentially never operated the Waste Processing Facility from the time the Facility opened and specifically has not operated it since August 21, 2009” and seeking to recover fees allegedly owed by the City in excess of $100,000. In response, the City answered and filed a motion for summary judgment arguing, inter alia, that the plain terms of the agreement exempt the City from paying fees for 50 years. The County also sought summary judgment, arguing that the plain terms of the agreement showed that the City was required to pay fees for services.

After conducting a hearing on the matter, the trial court granted summary judgment to the City and denied same to the County. Specifically, the trial court found that there was no ambiguity between the contract provisions, that Paragraph 6 “provides clearly that the City is to receive the landfill service free of charge,” and that Paragraph 8 was “clearly intended as a warranty that the Authority being created to run the recycling center would also not charge a fee for city garbage that was processed by that facility.” Further, the court held that even if an ambiguity existed, the first provision (i.e., Paragraph 6) would control under the rules of contract construction. Finally, the court stated that its construction of the contract was “consistent with the obvious intent of the parties” as reflected in the documentation attached to the City’s motion for summary judgment (namely, meeting minutes and affidavits of local government representatives who were involved in the contract negotiations).

This appeal by the County follows, in which the County argues that (1) the trial court improperly used parol evidence to construe an unambiguous contract, resulting in a clearly erroneous judgment and (2) the trial court’s use of parol evidence resulted in a rewriting of the contract, which constituted an abuse of discretion. Because these enumerations are essentially the same, we address them as one.

To begin with, we note that the construction of a contract is a question of law for the court. And the construction of a contract involves three steps. The first step is to decide whether the language of the contract is clear and unambiguous. If so, the contract is enforced according to its plain terms, and the contract alone is looked to for meaning. Second, if the language of the contract is ambiguous in some respect, the rules of contract construction must be applied by the court to resolve the ambiguity. And finally, if ambiguity remains after applying the rules of construction, “the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.” Indeed, “the cardinal rule of contract construction is to ascertain the intention of the parties.”

In the case sub judice, both parties contend that the meaning of the contract is plain but interpret the intention of the agreement in different ways. The County argues on appeal that the trial court properly found that the agreement between the parties was unambiguous but that the court “erred when it looked outside the unambiguous agreement to determine the intent of the parties.” The County’s position is that “[t]he clear emphasis and intent of the parties was for the City [sic] to own and operate the landfill without operational cost contribution from the County [sic].” But the County argues that Paragraph 8 (a) “specifically conditions the free service on the operation of a waste processing facility.” Specifically, the County contends that “Paragraph 5 and Paragraph 6 require the County to provide several waste collection and disposal services for the City at no cost to the City,” but that “later in the contract, in Paragraph 8, free disposal service or more specifically, rescission of the waste disposal fee, is conditioned on the operating of the waste processing facility.”

The City, on the other hand, argues on appeal that the County has misconstrued the trial court’s order because the court did not in fact look to parol evidence to ascertain the meaning of the contract, instead looking solely to the four corners of the document before stating in dicta that its construction of the contract was supported by other evidence. As to the contract itself, the City contends that the County’s interpretation of Paragraph 8 (a) would render Paragraph 6 meaningless. Additionally, the City argues that Paragraph 7 establishes that the fees referenced in Paragraph 8 (a) “are a tax of sort that was levied by [the County] on county residents, not a fee to a municipality.”

Having carefully examined the record, we disagree with the County that the trial court used parol evidence to reach its decision. Indeed, the trial court’s order makes clear that the court first looked to the four corners of the document and found the language of the contract to be clear and unambiguous, that the court then supported its decision with references to rules of construction, and that the court finally further bolstered its interpretation of the contract’s plain meaning by reference to evidence submitted by the City with its motion for summary judgment. And to the extent that the County argues that the trial court’s grant and denial of summary judgment was in error because the court’s interpretation of the contract was erroneous, we disagree and affirm the court’s judgment, even though we interpret the contract somewhat differently from the trial court.

In a nutshell, we find the language of the contract plain and unambiguous because the County is explicitly bound via Paragraph 6 of the agreement to “perform the services required by [the] Agreement without compensation by the City.” Moreover, paragraphs 7 and 8 (a) are not in conflict with this provision because those paragraphs refer to the collection (or noncollection) of a so-called waste disposal fee, which is defined nowhere in the agreement or in the record before us, and which gives no indication from whom said fee is to be collected. But that fee, per the terms of Paragraph 6, cannot be collected from the City itself.

This interpretation comports with the rules of construction, which require this Court “to consider the policy as a whole, to give effect to each provision, and to interpret each provision to harmonize with each other.” Additionally, when a written contract’s terms are clear and unambiguous, “the court cannot go beyond the contract itself and must confine itself to the contract alone to find the parties’ intent.” And “ambiguity is not to be created by lifting a clause or portion of the contract out of context, nor are we to call forth doubt or make hypercritical constructions.” Finally, “it is well established that a court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless.”

Decided April 25, 2012.

Jones & Oliver, Charles E. Jones, for appellant.

Perry & Walters, Franklin T. Coleman III, Edwin T. Cotton, John C. Cotton, for appellee.

Accordingly, the plain terms of the contract preclude the County from seeking compensation by the City for the performance of the County’s services during the duration of the agreement, and the trial court properly granted summary judgment to the City and denied same to the County.

Judgment affirmed.

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

        Carter v. Moody, 236 Ga. App. 262, 263 (511 SE2d 520) (1999) (punctuation omitted); see also OCGA§ 9-11-56; S. Gen. Ins. Co. v. Wellstar Health Sys., Inc., 315 Ga. App. 26 (726 SE2d 488) (2012) (“To prevail on summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, when viewed in the nonmovant’s favor, entitle the movant to judgment as a matter of law.”).

        Holcim (US), Inc. v. AMDG, Inc., 265 Ga. App. 818, 818 (596 SE2d 197) (2004) (punctuation omitted); see also Carter, 236 Ga. App. at 263 (“Ade novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable inferences drawn from it, in the light most favorable to the nonmovant.” (punctuation omitted)).

       We note that upon termination of the contract, and “upon the agreement of the City to share equally in all future costs and liabilities of the landfill operation,” the County is to “convey a one-half undivided interest to all landfill related property owned at such time by the County.”

       The hearing apparently was not transcribed, as the County amended its notice of appeal to “reflect that there is no transcript of proceeding for inclusion in the Record of Appeal.”

        See, e.g., Holcim (US), Inc., 265 Ga. App. at 820.

        See id.

        See id.

         See id.

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        See, e.g., Little v. Fleet Fin., 224 Ga. App. 498, 503 (1) (481 SE2d 552) (1997) (“Atrial court’s judgment, right for any reason, will be affirmed.”).

        ALEA London Ltd. v. Woodcock, 286 Ga. App. 572, 576 (2) (649 SE2d 740) (2007).

        Verret v. ABB Power T & D Co., 237 Ga. App. 492, 493 (1) (515 SE2d 435) (1999).

        Payne v. Middlesex Ins. Co., 259 Ga. App. 867, 869 (578 SE2d 470) (2003) (citation and punctuation omitted).

        ALEA London Ltd., 286 Ga. App. at 576 (2) (punctuation omitted).

       The City’s motion for the imposition of frivolous appeal sanctions is denied.


author: DOYLE, Presiding Judge.

text:
    A12A0367.
    ANTHONY v. THE STATE.
    (727 SE2d 528)
   DOYLE, Presiding Judge.

Following a jury trial, Joseph Anthony was convicted of hijacking a motor vehicle, armed robbery, and possession of a firearm during the commission of a crime. Anthony appeals the denial of his motion for new trial, arguing that the trial court erred by admitting into evidence his custodial statement after he invoked his right to counsel. We affirm, for the reasons that follow.

Viewed in favor of the verdict, the record shows that on January 28, 2002, Andrea Howard was at a car wash when Anthony and another man approached her vehicle. Anthony told her to exit the car, lifted up his shirt, and “went for his gun,” which was in the waistband of his pants. Howard complied, and the men left in her car, with Anthony driving and the other man in the passenger seat. Approximately 30 minutes later, Howard’s car was recovered at a nearby park; her cell phone, CDs, house keys, and recent purchases had been removed from the car.

During the subsequent investigation, the police learned that Anthony and another man had entered a Money Back store across the street from the car wash shortly before Howard was robbed, and they had left without making a purchase. A videotape from the Money Back surveillance camera captured images of the two men, and the police obtained still shots from the video to show to people in the area. After a witness identified Anthony as one of the men in the photograph, the police prepared a photo lineup with Anthony’s picture and showed it to the Money Back manager, who identified Anthony as one of the men who had been in the store shortly before the robbery. The carjacking victim, Howard, also positively identified Anthony from a photo lineup, indicating that he was the man with the gun.

Following Anthony’s arrest, Detective Clifford Byrd checked Anthony out of jail and transported him to police headquarters. In a room at headquarters, Byrd advised Anthony of his constitutional rights, and Anthony signed an acknowledgment-of-rights form. After Anthony invoked his right to counsel, Byrd took him to a patrol car to return him to jail. According to Byrd, as they approached the gate to the jail, “[Anthony] said, okay, I’ll tell you what you need to know.... He said, let’s go back to the office.” They then returned to police headquarters, where Anthony told the detective that he “was a part of it” and that he took Howard’s car to “get some cash.” Anthony also told the detective that “the other guy had the gun” and that they left Howard’s car at the park, where it was found following the robbery. Anthony did not give a written statement, and his verbal statement was not recorded. Byrd testified that he did not advise Anthony of his rights a second time because his statement was made approximately ten minutes after they left police headquarters.

Before trial, Anthony moved to suppress his statement, contending that it was made after he had invoked his right to counsel. At the Jackson-Denno hearing, Byrd testified that he did not force, coerce, or threaten Anthony to make a statement, nor did he promise Anthony any benefit, hope, or reward, and Anthony’s statement was made freely and voluntarily. At the hearing, Anthony conceded that he admitted his involvement in the robbery. According to Anthony, he made the statement after Byrd told him that he could possibly receive a reduced sentence if he cooperated, and that if Byrd believed that Anthony’s girlfriend was lying about Anthony’s whereabouts at the time of the incident, the officer “was going to take her to jail and possibly get [Anthony’s] little girl put into foster care or whatever.” Following the Jackson-Denno hearing, the trial court concluded that Anthony’s statement was admissible, stating:

[T]his is how I find it by a preponderance of the evidence. I find by agreement, since it’s not disagreed that the defendant was lawfully under arrest and was housed at the Muscogee County Jail. That he was removed by the officer and appropriately advised the defendant [sic] of his rights, which he understood. Once again by stipulation. I find that at some point during the course of that discussion the defendant did, and the request was honored by Detective Byrd, did invoke his right to counsel and that all interrogation ceased. I find that subsequent to that time that the defendant did freely, voluntarily [,] and intelligently reinitiate the conversation without any prompting whatsoever from the [d]etective and that the statement is admissible under the law of this state.

Anthony, in his sole enumeration of error, appeals the trial court’s denial of his subsequent motion for new trial, arguing that the trial court erred by admitting his custodial statement because it was obtained after he had invoked his right to counsel. We disagree.

In ruling on the admissibility of an in-custody statement, the trial court must look to the totality of the circumstances to decide whether the statement was made freely and voluntarily. The trial court’s factual findings and credibility determinations regarding the admissibility of in-custody statements will be upheld on appeal unless clearly erroneous. Generally, if there is evidence supporting the trial court’s decision to admit statements, it will be upheld on appeal.

Once an accused has “expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Here, it is undisputed that Anthony unequivocally invoked his right to counsel after Byrd advised him of his Miranda rights. Thus, “the law requires analysis of whether, after a request for counsel, the police subjected [Anthony] to further interrogation, and, if so, whether the additional questioning was initiated by [Anthony] rather than the police.”

Decided April 26, 2012.

William J. Mason, for appellant.

Julia Fessenden Slater, District Attorney, Wesley A. Lambertus, Assistant District Attorney, for appellee.

Detective Byrd testified that after Anthony invoked his right to counsel, the detective placed him in a patrol car to return him to jail, and before the gate to the j ail opened, Anthony spontaneously offered to tell the detective about his involvement in the incident. Although Anthony testified that he made his statement after Byrd continued to interrogate him after he had invoked his right to counsel, we defer to the trial court on credibility determinations and factual findings. Given Byrd’s testimony that Anthony spontaneously initiated further conversation with him, the trial court did not err by admitting Anthony’s statement at trial.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       OCGA§ 16-5-44.1 (b).

       OCGA§ 16-8-41 (a).

       OCGA§ 16-11-106 (b) (1).

       Anthony’s initial direct appeal was dismissed as untimely, and the trial court granted his subsequent motion for an out-of-time appeal.

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       Howard and the store manager both identified Anthony at trial as well.

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       We note that Anthony does not contend that he invoked his right to remain silent.

       (Citations omitted.) Milinavicius v. State, 290 Ga. 374, 375 (2) (721 SE2d 843) (2012).

        Edwards v. Arizona, 451 U. S. 477, 484-485 (II) (101 SC 1880, 68 LE2d 378) (1981).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       (Emphasis in original.) State v. Brown, 287 Ga. 473, 476 (2) (697 SE2d 192) (2010).

       See Hopkins v. State, 263 Ga. 354, 357 (3) (a) (434 SE2d 459) (1993), citing Zubiadul v. State, 193 Ga. App. 235, 236-238 (387 SE2d 431) (1989).


author: Adams, Judge.

text:
    A12A0205.
    WILLIAMS v. THE STATE.
    (727 SE2d 532)
   Adams, Judge.

Collie Caeser Williams appeals the denial of his motion to withdraw a plea of guilty on two counts of aggravated assault. He contends he entered his plea under a misapprehension of facts and that withdrawal of his plea is necessary to correct a manifest injustice.

Williams was indicted on one count of rape and the two counts of aggravated assault. The court held a plea hearing on March 9, 2011. At the hearing, the State explained that it agreed to a nolle prosequi on the count of rape and that Williams would plead guilty to the other two counts. In addition, the State made a “cap recommendation”; that is, it recommended that Williams be sentenced on the first assault count to 20 years to be served entirely in custody and that he be sentenced on the second assault count to an additional 20-year sentence, consecutive to the first, to be served on probation, so that, combined, Williams’s sentence would be capped at 40 years to serve 20.

The State’s factual basis for the case was that as of November 1, 2008, Williams and the victim, who had two children together, were separated, and that Williams had moved out of their apartment. Although the victim was dating someone else, she also still saw Williams. And on this day, they met after work, went to a restaurant, and returned to the victim’s apartment where they got into an argument about her dating others. The argument escalated and the victim asked Williams to leave, but he grabbed her and pushed her into a bathroom, breaking a towel rack. He also shoved her face against the mirror and grabbed her around the throat. He shoved her, causing her head to hit the toilet and rendering her disoriented. She sustained scratch marks on her neck and an injury to an eye. She attempted to escape and to telephone her mother but was unsuccessful. The assault continued in the bedroom, where Williams raped the victim; the State had DNA evidence for trial. Some time later, Williams’s own mother arrived, and after Williams refused to allow the victim to come to the door, Williams’s mother called the police. The police arrived, and the victim answered the door disheveled, frightened, and explaining what had happened. The officers found Williams hiding in a closet. The State asserted that the first aggravated assault occurred when Williams choked the victim in the bathroom and that the second was the assault associated with the sexual encounter.

Williams took the plea and argued for a lighter sentence. As a part of the sentencing hearing, the victim stated (not under oath) that if there were a trial, she would testify to the facts asserted by the State, including that Williams had sexual intercourse with her against her will on the night in question. The judge followed the State’s recommendation as to sentence. Shortly after the plea, Williams moved to withdraw his plea, and a hearing was held on August 4, 2011. Following the hearing, the court denied the motion.

“[Ojnce a sentence has been entered, a guilty plea may only be withdrawn to correct a manifest injustice [.]” (Punctuation and footnote omitted.) Earley v. State, 310 Ga. App. 110, 112 (712 SE2d 565) (2011). And this Court will not disturb a trial court’s ruling on this issue absent manifest abuse of discretion. Muckle v. State, 283 Ga. App. 395, 397 (641 SE2d 603) (2007). Ultimately, the burden is on the State to show that the plea was knowingly, intelligently and voluntarily made. Tomlin v. State, 295 Ga. App. 369, 370 (671 SE2d 865) (2008).

Williams contends there was a manifest injustice because, as he testified at the hearing, he was induced to plead guilty by his counsel’s representation that the alleged victim would testify that he raped her, whereas, at the hearing on the motion to withdraw, the victim recanted her testimony. At that hearing, the victim testified to several things: that within a few hours after the plea hearing, she contacted Williams’s attorney by e-mail and indicated that Williams had not raped her; that the couple had consensual sex two days prior to the night of the fight between them; that on the night of the fight, “he did put his penis inside me but I didn’t tell him to stop”; and that any sex they had that night was “make-up sex” after the fight. However, in one e-mail she stated, “[a] part of me feel like he raped me and another part feel like he didn’t.” And she testified that with regard to sex that night, “[she] didn’t want him in that way but [she] didn’t [say] stop so it wasn’t rape.” She also admitted that the sex they had that night came after the beating, and that she consented in order to make him calm down and leave the apartment. Finally, she again testified to the beating that Williams gave her prior to the sex. Williams testified that his trial counsel had advised him prior to the plea that the victim would testify that he raped her and that he would have exercised his right to a trial if he had known the victim would have testified as she did at the plea withdrawal hearing. But, he also testified that he would not have asked to withdraw his plea if he had received a lighter sentence.

The trial court denied the motion to withdraw, finding that Williams “entered his plea completely voluntarily and understanding what he was doing and that he did so intelligently from the standpoint of the information that he had before him.” We find no abuse of discretion or manifest injustice for several reasons.

First, there is no dispute that the transcript of the original plea hearing shows that Williams was thoroughly questioned about the plea, fully informed and cognizant of the rights he was waiving, and fully aware of the consequences of the plea based on the information available at the time. See Gainer v. State, 267 Ga. App. 408 (599 SE2d 359) (2004). And the trial court was authorized to disbelieve Williams’s testimony at the hearing on the motion to withdraw that he was confused at the time of his plea. See, e.g., Trapp v. State, 309 Ga. App. 436, 438 (1) (710 SE2d 637) (2011).

Second, the purported recantation evidence proffered at the hearing on the motion to withdraw is very weak. At the hearing, the victim testified that she and Williams had sexual intercourse after the beating, even though “[she] didn’t want him in that way,” in order to make Williams calm down and leave, but she did not tell him to stop. This testimony is consistent with the fact that the victim originally intended to testify that Williams had sexual intercourse with her against her will.

That the alleged victim did not outwardly or physically resist does not mean that she freely consented. Her lack of resistance may have sprung from apprehension, on her part, of bodily harm, violence, or other dangerous consequences to herself or to another. If the state establishes, beyond a reasonable doubt, that the alleged victim’s lack of resistance resulted from such apprehension, that lack of resistance will not constitute freely given consent.

Clark v. State, 261 Ga. 311, 312 (404 SE2d 787) (1991). See also United States v. Morrison, 967 F2d 264, 268-269 (II) (8th Cir. 1992) (victim’s new statement regarding sexual assault — that she was unable to recall with certainty what occurred — was not inconsistent with her contemporaneous statement to officers that she had been raped by consenting to intercourse because she was afraid that the defendant would continue to strike and assault her).

Third, the victim’s additional testimony pertained only to the rape charge, which was nolle prossed, and not to the two counts of aggravated assault. And at the plea hearing, Williams admitted under oath that he committed the two acts of aggravated assault.

Fourth, Williams admitted that he would not have moved to withdraw his plea if he had been given a lighter sentence, thereby undermining his claim that he would have elected to go to trial if he knew of the victim’s additional testimony, and instead indicating that Williams simply had what the trial court referred to as “buyer’s remorse” regarding his sentence. Cf. Hinely v. State, 275 Ga. 777, 783 (5) (573 SE2d 66) (2002) (“[t]he prospect of a greater sentence is not coercion that prevents the decision to plead guilty, or to accept a certain lesser sentence, from being free and voluntary. [Cit.]”). See also Norwood v. State, 311 Ga. App. 815, 818 (717 SE2d 316) (2011) (trial court to resolve issues of credibility on a motion to withdraw a guilty plea).

Finding no abuse of discretion or manifest injustice, we affirm.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

Decided April 27, 2012.

Lucas O. Harsh, for appellant.

Daniel J. Porter, District Attorney, Lisa A. Jones, Assistant District Attorney, for appellee.


author: BARNES, Presiding Judge.

text:
    A12A0246.
    WATKINS v. THE STATE.
    (727 SE2d 539)
   BARNES, Presiding Judge.

Demonte Watkins appeals the denial of his motion to dismiss the criminal charges against him, contending that the four-year delay between his arrest and the ruling on his motion violated his right to a speedy trial under the Sixth Amendment of the United States Constitution. Because the trial court’s order is insufficient to allow us to determine whether it abused its discretion in denying the motion, we vacate the judgment and remand for entry of an order including proper findings in accordance with Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). Higgenbottom v. State, 288 Ga. 429, 430 (704 SE2d 786) (2011).

Watkins was arrested on August 17, 2007, and indicted on August 28, 2007 for attempted armed robbery, aggravated assault with the intent to rob, and possession of a firearm during the commission of a crime. On March 23, 2010, the State re-indicted Watkins to add charges for aggravated assault with a deadly weapon and two counts of firearm possession by a convicted felon. On July 30, 2010, Watkins moved to dismiss the indictment, asserting that the State had violated his constitutional right to a speedy trial, and the trial court denied the motion on August 9, 2011, almost four years after his arrest and a year after he filed his motion to dismiss.

1. Watkins argues on appeal that the trial court erred in denying his motion to dismiss, and failed to make sufficient findings of fact regarding some of the factors to be considered.

Both the United States and Georgia Constitutions grant defendants in criminal cases a right to a speedy trial. U. S. Const., Amend. VI; Ga. Const., Art. I, Sec. I, Par. XI (a). When considering a motion to dismiss on this ground, the court conducts a two-tier analysis. Under the first tier, the court considers whether the delay is long enough to be presumptively prejudicial, and if so, then it considers under the second tier whether the delay constituted a speedy trial violation. Brewington v. State, 288 Ga. 520, 520-521 (1) (705 SE2d 660) (2011). In determining whether the delay violated the defendant’s speedy trial right, the court considers (1) whether the delay is uncommonly long; (2) the reasons and responsibilities for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) the prejudice to the defendant. Doggett v. United States, 505 U. S. 647, 651 (112 SC 2686, 120 LE2d 520) (1992).

The four factors must be considered together, balancing the conduct of the prosecution and the defendant on a case-by-case basis. Boseman v. State, 263 Ga. 730, 731 (1) (438 SE2d 626) (1994). We review a trial court’s decision to deny a motion seeking dismissal for a speedy trial violation under an abuse of discretion standard. Wilkie v. State, 290 Ga. 450 (721 SE2d 830) (2012). “It is imperative, therefore, that in cases implicating a defendant’s constitutional right to speedy trial, the trial court enter findings of fact and conclusions of law consistent with Barker. Absent such findings, there is no exercise of discretion for this Court to review.” Higginbottom, 288 Ga. at 430-431.

Further,

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

State v. Pickett, 288 Ga. 674, 679 (2) (d) (706 SE2d 561) (2011). In this case, the trial court failed to make the findings required for this court to determine whether it properly exercised its discretion.

2. The length of delay is calculated “from the date of arrest or other formal accusation to the date on which a defendant’s speedy trial motion was granted or denied.” State v. Porter, 288 Ga. 524, 526 (2) (b) (705 SE2d 636) (2011). The State concedes that the almost-four-year delay in this case is presumptively prejudicial, thus triggering the need for additional analysis. It also concedes that the length of delay was uncommonly long, and should weigh heavily against the State.

3. In considering the reasons for the delay, the trial court noted only that Watkins twice failed to appear for scheduled court dates, which resulted in the issuance of two bench warrants and Watkins’ subsequent arrests, which accounted for approximately six months of delay. Other than this six-month period, however, the trial court’s order does not address the causes of the remaining three-and-a-half years of delay or determine how much of the delay should be weighed against either Watkins or the State. The court simply concludes that Watkins’ two failures to appear “in part explain the delay and thus the Court finds the reason for the delay is benign.” Even assuming the trial court meant that the delay was caused equally by Watkins and the State, absent any findings regarding the reasons for the rest of the delay this court cannot determine whether the trial court abused its discretion in reaching this conclusion.

4. The trial court also found that Watkins’ almost-three-year delay in asserting his right to a speedy trial weighed against him, noting that the case had been on several trial calendars and “was progressing up the list of cases ready for trial.” The court made no findings, however, in response to Watkins’ argument that his responsibility for the delay should be mitigated by the State’s failure to produce certain discovery items until early 2010. See State v. Brown, 315 Ga. App. 544 (726 SE2d 500) (2012).

5. Watkins argued that he was prejudiced by the delay because the crime scene became unavailable, he could not locate a witness, and his ability to work was restricted. Again, however, the trial court made no findings regarding prejudice resulting from delay caused by the State, finding only that Watkins’ unavailability to assist his counsel when he was incarcerated pursuant to bench warrants “equally contributed to any prejudice” he suffered.

6. Finally, the trial court failed to make even a bare conclusion about how these factors balanced against each other. The factors “must be considered together with such other circumstances as may be relevant.” Barker, 407 U. S. at 533. This “difficult and sensitive balancing process ... necessarily compels courts to approach speedy trial cases on an ad hoc basis,” an admonition the Supreme Court of Georgia has often repeated. (Citations and punctuation omitted.) Porter, 288 Ga. at 533 (2) (d). “It is not the job of the appellate court... to weigh the Barker factors.” Pickett, 288 Ga. at 679-680 (2) (d).

An appellate court may affirm a trial court’s speedy trial decision even if it significantly misapplies the law or clearly errs in a material factual finding if it concludes that, “had the trial court used the correct facts and legal analysis, it would have had no discretion to reach a different judgment.” Pickett, 288 Ga. at 679 (2) (d). In this case, however, considering the trial court’s failure to balance the Barker factors at all, as well as its failure to address important factual issues such as the reason for most of the lengthy delay, we cannot simply affirm. See Goffaux v. State, 313 Ga. App. 428, 432 (721 SE2d 635) (2011). Accordingly, we vacate the trial court’s judgment and remand the case to the trial court for further proceedings consistent with this opinion. Porter, 288 Ga. at 534 (2) (e).

Decided April 27, 2012.

Brian A. Hobbs, for appellant.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.

Judgment vacated and case remanded with direction.

Adams and McFadden, JJ., concur.


text:
    A12A0294.
    BRABANT v. PATTON.
    (728 SE2d 244)
   Adams, Judge.

Angela Brabant appeals the trial court’s order dismissing her notice of appeal. We reverse for the reasons set forth below.

Brabant and her ex-husband Phillip Drew Patton were granted a divorce on December 19,1997 in Muscogee County. Pursuant to the terms of their divorce, Patton was named the primary custodian of the couple’s children, Allison Marie Patton and Alex Patton. On July 5,2010, Patton sent Allison, then 19, and her brother to visit Brabant in Spokane, Washington, where she resided. The children were scheduled to return to Georgia on August 2, 2010. It is undisputed that Allison Patton is mentally challenged and will require care and supervision for the rest of her life. Brabant did not return Allison to Patton in Georgia at the scheduled time, but instead on July 22,2010, Brabant filed a petition for limited guardianship of Allison in the Superior Court of Spokane County, Washington, asserting that Allison had made an independent determination to remain in Washington. In response, Patton filed a “Petition for Declaratory Judgment [and] Petition for Citation of Contempt” in the Superior Court of McIntosh County where he resides and where Allison resided prior to traveling to Washington to visit her mother. The petition sought a declaration that Patton was the lawful custodial parent of Allison and that Brabant is required to pay child support until Allison is 20 years old. It also sought an order finding Brabant in contempt for failing to comply with the parties’ divorce decree. Brabant filed an answer and counterclaim and also made an oral motion to dismiss Patton’s petition.

On September 23, 2010, the trial court issued an order in response to Brabant’s motion to dismiss and following the submission by the parties of briefs on the jurisdictional issues raised by the case. In that order, the trial court determined that the Superior Court of McIntosh County had jurisdiction to determine the guardianship of Allison and that “[u]ntil otherwise decided by the Courts, Drew Patton is the primary custodial parent and natural guardian of Allison Marie Patton.” Thus, the trial court ordered Brabant to return Allison to Patton within 15 days of the order’s entry, although the court noted that Brabant was free to file a petition for guardianship in McIntosh County. The trial court also determined that only the Superior Court of Muscogee County had jurisdiction to consider Patton’s Petition for Citation of Contempt, alleging that Brabant violated the Muscogee County divorce decree; accordingly, the trial court transferred the petition for contempt to Muscogee County pursuant to the Uniform Rules of Superior Court.

Brabant filed a timely appeal from this order on October 4, 2010, but Patton moved to dismiss the appeal on the ground that all appeals in domestic relations cases are discretionary pursuant to OCGA § 5-6-35. Patton also argued that because the order was interlocutory, Brabant was required to obtain a Certificate of Immediate Review before she filed an appeal. OCGA § 5-6-34 (b). The trial court granted the motion and dismissed Brabant’s appeal.

Pretermitting whether the trial court had the authority to dismiss Brabant’s appeal on the grounds raised in Patton’s motion, we find that the trial court erred in holding that Brabant did not have a right of direct appeal. Under OCGA § 5-6-34 (a) (11), direct appeals may be taken from “[a]ll judgments or orders in child custody cases including, but not limited to, awarding or refusing to change child custody or holding or declining to hold persons in contempt of such child custody judgment or orders.” The Georgia Courts have interpreted this section as permitting “a direct appeal of an order in a child custody case regarding which parent has custody regardless of finality,” Edge v. Edge, 290 Ga. 551, 552 (1) (722 SE2d 749) (2012), and thus such orders are not subject to the interlocutory or discretionary appeal procedures. Long v. Long, 303 Ga. App. 215, 217 (1) (692 SE2d 811) (2010). The trial court’s September 23, 2010 order determined that Patton retained primary custody of Allison even though she had reached the age of majority and in spite of Brabant’s petition for guardianship in Washington. Accordingly, the order was one refusing to change child custody and thus was directly appealable pursuant to OCGA§ 5-6-34 (a) (11).

Decided April 27, 2012.

James W. McIlvaine, Molly D. McIlvaine, for appellant.

Donald O. Nelson, for appellee.

Judgment reversed.

Barnes, P. J., and McFadden, J., concur.

       See American Med. Security Group v. Parker, 284 Ga. 102, 103 (1), n. 2 (663 SE2d 697) (2008) (whether order was directly appealable or interlocutory is an issue of law that must he resolved by the appellate court). See also id. at 108-110 (Benham, J., concurring). In this case, the trial court’s decision to dismiss the appeal, rather than allowing it to proceed to the appellate court for a determination of whether the proper appellate procedures were followed, unnecessarily delayed appellate review of the underlying issues.


author: PHIPPS, Presiding Judge.

text:
    A12A0464.
    AUSTIN v. THE STATE.
    (727 SE2d 535)
   PHIPPS, Presiding Judge.

John Austin II pled guilty to felony theft by taking another person’s property: several pieces of jewelry, a camera, an iPod shuffle, a scuba knife, a rifle, a pistol, and various precious rare coins. He was given a probated sentence, a condition of which required him to pay restitution in an amount to be determined. After a restitution hearing, the court entered an order setting restitution at $20,500 in connection with those stolen items that were not recovered by the owner. In this appeal, Austin contends that the amount of restitution was not supported by sufficient evidence. We agree and therefore vacate the restitution order and remand the case for proceedings not inconsistent with this opinion.

In determining the amount of restitution, the ordering authority shall consider, inter alia, the amount of damages. “Damages,” in this context, means “all special damages which a victim could recover against an offender in a civil action ... based on the same act or acts for which the offender is sentenced, except punitive damages and damages for pain and suffering, mental anguish, or loss of consortium.” “The amount of restitution ordered shall not exceed the victim’s damages.” “The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the state.”

[T]he sufficiency of evidence to support an order of restitution is measured by the civil standard of preponderance of the evidence. It is well established that review of evidence by this Court is limited to questions of sufficiency. Accordingly, determinations regarding the credibility of the witnesses and the weight to be accorded conflicting evidence are for the trial court, and this Court will not interfere with such determinations as long as there is any evidence to support them.

At the restitution hearing, the owner of the stolen property was the state’s sole witness regarding damages. He testified that, of the property stolen, only his pistol and coin collection had not been recovered. He described his pistol and testified that to replace it would cost approximately $500. He also provided information about his coin collection, then gave a range of its worth at approximately $20,000 to $30,000. At the end of the hearing, the court remarked that it was accepting the low end of that range to reach a total restitution amount of $20,500.

On appeal, Austin challenges the restitution amount, asserting that the state failed to provide sufficient evidence as to the fair market value of the items at issue.

In evaluating the evidence presented to the trier of fact, we consider whether the evidence shows the fair market value of these items, the condition of the items, or an appropriate method of discounting the items from their replacement value to their fair market value. Without any such evidence on the record, we cannot say that the State has shouldered its burden of proving the fair market value of the [stolen] items upon which an order of restitution may be based.

We consider first the evidence pertaining to the gun — a “.25 caliber automatic pistol, [with] cherry wood grips.” The owner testified that he had purchased the gun about 20 years earlier for $ 125 and that he had never used the weapon. He acknowledged that he had not asked any gun dealer about the current value of such a gun; however, he claimed that to replace his pistol would cost “probably $500.”

While it appears that the trial court accepted the replacement cost as the fair market value of the gun, “[t]he correct determination for the amount of restitution is the fair market value of the property rather than the replacement cost.” Moreover, “[i]t is not sufficient for a victim merely to provide either the original price or the replacement costs of any item. Rather, the fair market value may be established by testimony regarding the original price, coupled with the age of the item and its condition at the time of the crime.” Here, although the owner testified that he had never used the pistol, that particular aspect of the property — even coupled with its original price and replacement cost — did not provide for any meaningful method of arriving at the fair market value of the 20-year-old gun. Because the state therefore failed to adduce sufficient evidence to support an amount of $500 in damages for the pistol, that portion of the restitution amount was unauthorized.

Turning to the $20,000 figure used for the coin collection, we find again an evidentiary deficiency. At the end of the restitution hearing, the trial court remarked that, although the owner had provided neither the exact number of coins stolen nor an itemized valuation for those coins, “there’s enough testimony and enough experience on [the owner’s] part to accept the low-end of his estimate.”

Indeed, “[t]he victim’s testimony can establish the fair market value as long as the victim’s testimony is fact-based rather than mere conjecture.”

Opinion evidence as to the value of an item, in order to have probative value, must be based upon a foundation that the witness has some knowledge, experience or familiarity with the value of the property or similar property and he must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion.

“Absent this foundation, the opinion as to value is inadmissible as it is nothing more than an unsupported conclusion or guess of the witness.”

Here, the owner testified that he kept in a bag “roughly . . . around about a hundred” old coins, which had been “handed down through three generations: my grandmother, my mother and to me. And they are dated from 1801.” Some of the coins were 150 to 175 years old. The bag contained “gold coins, as well as silver coins.” Also in the coin bag, the owner testified, were silver dollars, “half dimes, V nickels, V dimes, and V quarters.” He also had in the bag four rolls of “silver quarters,” but he did not know how many such quarters were contained in a single roll.

The owner was duly asked whether, over the last several years, he had been able to ascertain the fair market value of his coins, and he answered: “No, sir. I had quit dealing in coins after — right before I got married.” But nothing in the record makes relevant the owner’s previous “dealing in coins” —• that is, nothing in the record sheds light upon the extent of such dealing or even when it (either the coin dealing or his marriage ceremony) occurred. The “old coins” had not been acquired through his “dealing in coins,” but had been handed down to him by his mother and grandmother; acquiring the coins through that channel provided no evidence of their fair market value. What is more, the owner admitted that he had never had any of the coins in his collection appraised; had never contacted a coin dealer concerning the fair market value of the coins; had never found his coins in any price guide; had never found any reference to his coins at a library; had never consulted with the American Numismatic Association about his coins; and had never sought to have any of the coins insured separately from his homeowners’ insurance policy. When asked to explain how he had arrived at a $20,000-$30,000 range for his stolen coins, he answered: “That’s what they would be valued at, I imagine, to a coin collector.”

The owner’s opinion lacked the requisite foundation because there was no showing that he had some knowledge, experience or familiarity with the value of his coins. Absent this foundation, the owner’s opinion was nothing more than conjecture, an unsupported conclusion, or a guess. Because the state therefore failed to adduce sufficient evidence to determine the fair market value of the coin collection, the $20,000 portion of the restitution amount was also unauthorized.

Decided April 27, 2012.

Kevin Kwashnak, for appellant.

Plez H. Hardin, District Attorney, Lewis R. Lamb, Justin R. Arnold, Assistant District Attorneys, for appellee.

For the reasons given above, the restitution order is vacated, and this case is remanded for a new restitution hearing and entry of a new order.

Order of restitution vacated and case remanded with direction.

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

       OCGA§ 17-14-10 (a) (4).

       OCGA§ 17-14-2 (2).

       OCGA § 17-14-9; see Cardwell v. State, 225 Ga. App. 337, 338 (484 SE2d 38) (1997) (amount of restitution recoverable in a criminal case may not exceed that which would be recoverable in a civil action).

       OCGA§ 17-14-7 (b).

        Coile v. State, 311 Ga. App. 537-538 (716 SE2d 527) (2011) (citations and punctuation omitted).

        Gray v. State, 273 Ga. App. 747, 749 (2) (615 SE2d 834) (2005) (citation omitted).

       Id. (citation and footnote omitted).

        In the Interest of R. V., 283 Ga. App. 355, 356 (2) (641 SE2d 591) (2007) (footnotes omitted; emphasis supplied), disapproved on other grounds, McCart v. State, 289 Ga. App. 830, 833 (658 SE2d 465) (2008).

       Cf. Sutton v. State, 190 Ga. App. 56, 57 (1) (378 SE2d 491) (1989) (value assigned to the stolen truck for which restitution was ordered was based upon a consideration of the fair market value of a truck of comparable age and condition, utilizing a survey predicated on representative samples).

       See In the Interest of R. V., supra (evidence was insufficient to support the restitution amount, where vast majority of the victim’s testimony regarding damages was limited to the original price or the replacement costs of the items damaged or stolen, and some of the victim’s testimony regarding repair quotes constituted inadmissible hearsay); see also Turner v. State, 312 Ga. App. 799, 805 (2) (720 SE2d 264) (2011) (where nothing in the record showed what was encompassed by the addition of $48,988.44 in “accounting/auditing/attorney fees associated with the theft,” that portion of the restitution award was unauthorized); Cardwell, supra.

        In the Interest of R. V., supra (footnote omitted).

        Gray, supra at 750 (2) (citation omitted).

       Id. (citation, punctuation and footnote omitted).

       See id.; see also In the Interest of R. V., supra.

       See Gray, supra at 750-751 (2) (evidence was insufficient to sustain court’s restitution award amount, where the sole witness on damages failed to give a fact-supported opinion, but based her estimation on numbers she “pulled... out of [her] head”); see also Hawthorne v. State, 285 Ga. App. 196, 198 (1) (648 SE2d 387) (2007). See generally Sisk v. Carney, 121 Ga. App. 560, 563-564 (4) (174 SE2d 456) (1970).

       See Gray, supra at 751 (2) (“[W]here we have found the restitution evidence insufficient to sustain the award, we have consistently remanded the case for a new restitution hearing.”); see, e.g., Gaskin v. State, 221 Ga. App. 142, 145 (3) (b) (470 SE2d 531) (1996) (where restitution amount was not authorized by evidence, restitution order was vacated, and case remanded for new restitution hearing and entry of new order).


author: MCFADDEN, Judge.

text:
    A12A0185.
    GERMANY v. THE STATE.
    (727 SE2d 240)
   MCFADDEN, Judge.

James Wayne Germany appeals the revocation of five years probation. He argues that the trial court violated his Fifth Amendment rights by revoking probation for his refusal to take a polygraph examination; that at most, the trial court could revoke two years probation; and that the trial court abused its discretion in denying his motion for an appeal bond. Because we find that requiring Germany to undergo a polygraph as a condition of probation did not violate his Fifth Amendment rights and that the trial court was not limited to revoking two years probation, we affirm. We do not reach Germany’s argument regarding the denial of an appeal bond.

In 1992, Germany pled guilty to one count of aggravated child molestation and was sentenced to 30 years, to serve five years in prison and the remainder on probation. He also pled guilty to one count of statutory rape and was sentenced to serve 20 years on probation.- Later that year, he pled guilty to aggravated sexual battery and was sentenced to 20 years, to serve five years in prison and the remainder on probation. All three sentencing forms, Form SC-6, listed as a special condition of probation that:

Probationer shall submit to and cooperate with a lie detector test or Psychological Stress Evaluation, whenever so directed by the Probation Supervisor of any city, county or state law enforcement officer concerning any inquiry relative to compliance with the terms of his/her probation. Additionally, probationer shall submit to and cooperate with a lie detector test and/or Psychological Stress Evaluation inquiring into his/her knowledge of criminal activity as may be directed by the Probation Supervisor or by any city, county or state law enforcement officer.

All three sentencing forms also informed Germany that if his probation were revoked, “the Court may order the execution of this sentence which was originally imposed or any portion thereof in the manner provided by law after deducting therefrom the amount of time the defendant has served on probation.”

In 2010, Germany’s probation officer filed a petition to revoke his probation, alleging that he had violated his probation by committing child molestation and by failing to submit to and cooperate with a polygraph examination. After conducting several hearings, the trial court ruled that the child molestation charges were barred by the statute of limitation and therefore could not serve as the basis for revoking Germany’s probation. However, the court ruled that Germany had violated the condition requiring him to submit to a polygraph examination and revoked five years probation. The trial court denied Germany’s motion for an appeal bond.

1. Germany argues that the trial court erred by revoking his probation for his exercise of his Fifth Amendment right against self-incrimination. The trial court found that Germany’s Fifth Amendment rights were not implicated because he did not assert his Fifth Amendment privilege in response to particular questions. Instead, he declined to participate in any fashion in a polygraph examination. Generally, “[t]his court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court.” (Citation omitted.) Gray v. State, 313 Ga. App. 470, 471 (722 SE2d 98) (2011). However, we review questions of law de novo. White v. State, 274 Ga. App. 805 (619 SE2d 333) (2005).

In Mann v. State, 154 Ga. App. 677,681 (4) (269 SE2d 863) (1980), we held that a probation “condition requiring the probationer to submit to polygraph'tests does not violate the [probationer’s] Fifth Amendment rights.” We reasoned that “[t]he intrusion into the area of self-incrimination is no greater than a requirement that a probationer answer all reasonable inquiries of his probation officer” (citation and punctuation omitted), id., the kind of requirement the United States Supreme Court tacitly approved in Minnesota v. Murphy, 465 U. S. 420 (104 SC 1136, 79 LE2d 409) (1984).

In that case, the Supreme Court considered whether the Fifth Amendment prohibited the introduction into evidence in a subsequent criminal prosecution certain admissions a probationer made to his probation officer. The court held that “the general obligation to appear and answer questions truthfully did not in itself convert [the probationer’s] otherwise voluntary statements into compelled ones,” as long as the probationer was not “required to answer over his valid claim of the privilege.” Minnesota, 465 U. S. at 427 (II) (A). The court reasoned that the probationer made the admissions instead of invoking his Fifth Amendment privilege to specific questions and that the probationer’s obligation to respond to his probation officer’s questions,

[o]n its face, . . . proscribed only false statements; it said nothing about his freedom to decline to answer particular questions and certainly contained no suggestion that his probation was conditional on his waiving his Fifth Amendment privilege with respect to further criminal prosecution.

Id. at 437 (II). See also Owens v. Kelley, 681 F2d 1362 (11th Cir. 1982) (rejecting claim that a probationer’s Fifth Amendment rights were violated by a probation condition requiring him to submit to psychological stress evaluation examinations, a condition imposed in the same court and by the same trial court judge as Germany’s). Implicit in these courts’ approval of such probation conditions is the premise that a court can revoke probation for a probationer’s refusal to comply with such conditions.

The evidence here showed that Germany declined to undergo a polygraph examination. As the trial court observed, this is a different situation than agreeing to undergo a polygraph examination and then refusing to answer incriminating questions, which would invoke Fifth Amendment rights. Germany was not forced to answer incriminating questions, and he was never threatened that his invocation of his right not to answer particular questions would result in revocation of his probation. The trial court did not err by concluding that the revocation of Germany’s probation for failure to comply with the probation condition requiring him to undergo a polygraph examination did not violate his Fifth Amendment rights.

2. Germany argues that the trial court was limited to revoking two years of his probation because he was never informed in writing that his entire probation sentence could be revoked for violating a probation condition. See OCGA § 42-8-34.1 (e). See also Jowers v. Washington, 284 Ga. 478, 481 (2) (668 SE2d 703) (2008); Harvey v. Meadows, 280 Ga. 166 (626 SE2d 92) (2006). We disagree.

In Jowers, the Supreme Court of Georgia held that the same language as the language on Germany’s sentencing sheets sufficiently informed a defendant that his entire probation sentence could be revoked for violating a particular probation condition. The Jowers sentencing order advised the defendant that

the court could lift the conditions or discharge him from probation at any time; that he was subject to arrest for violating any condition; and that “if such probation is revoked, the Court may order the execution of the sentence which was originally imposed or any portion thereof.”

Id. at 479 (1). The Supreme Court held that this language substantially complied with OCGA § 42-8-34.1 and authorized the court to revoke more than two years of the defendant’s probated sentence. Jowers, 284 Ga. at 482 (2). The court observed that the sentencing sheet “contain[ed] a virtually verbatim reproduction of the language required by the statute to create a special condition of probation,” id., which was “hardly surprising, given that [the defendant] was sentenced using the standardized felony judgment sentencing form, Form SC-6, contained in the Appendix to the Uniform Superior Court Rules and in continuous use since 1985.” Id. at 482 (2), n. 10. Germany’s sentences were also entered on Form SC-6. The language warning him that if his probation were revoked, “the Court may order the execution of the sentence which was originally imposed or any portion thereof” — exactly the language reviewed in Jowers — sufficiently complied with OCGA § 42-8-34.1 and authorized the court to revoke more than two years of his probation.

3. Germany argues the trial court erred in denying him an appeal bond. Because the order denying Germany’s motion for an appeal bond was entered after Germany had filed his notice of appeal, we lack jurisdiction to consider this enumeration of error. Norman v. Ault, 287 Ga. 324, 331 (6) (695 SE2d 633) (2010).

Decided April 12, 2012

Reconsideration denied April 30, 2012

James N. Finkelstein, for appellant.

Gregory W. Edwards, District Attorney, Cania R. Brown-Gordon, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Andrews, Judge.

text:
    A12A0399.
    ROBA v. DOTSON.
    (727 SE2d 542)
   Andrews, Judge.

Patrick Dotson, as seller, sued Abdulwahab Roba, as buyer, for damages for breach of a written contract to sell real property for $55,000. Roba filed a counterclaim alleging that he was entitled to damages and attorney fees. After a bench trial, the trial court rendered judgment in favor of Dotson on his breach of contract claim in the amount of $36,367.45, and in favor of Dotson on Roba’s counterclaim. On appeal, Roba claims that the trial court erred in the amount of damages awarded on the breach of contract claim. We agree and reverse the award of damages in favor of Dotson on the breach of contract claim. Roba does not contest the judgment to the extent the trial court ruled in favor of Dotson on the counterclaim, so that portion of the judgment is affirmed.

Roba does not dispute that the evidence was sufficient to support the trial court’s finding that he breached the contract to buy the real property for $55,000 by refusing to close the sale on September 5, 2008, the closing date in the contract. In support of his claim for damages for breach of the contract, Dotson produced evidence that, as of the date of the trial on August 10, 2011, the real property had decreased in value from $55,000 at the time of the contract to $25,000, resulting in damages of $30,000. Dotson also produced evidence of additional damages he suffered as a result of the breach in the following amounts: (1) taxes paid on the real property from the September 5, 2008 closing date until the date of the trial in the amount of $2,856.97; (2) interest paid on a loan secured by the real property until the date of trial in the amount of $2,035.48; and (3) maintenance costs on the real property from the closing date until the date of the trial in the amount of $1,475. Based on evidence of a

decrease in property value of $30,000 and additional damages totaling $6,367.45, the trial court awarded Dotson damages for breach of the contract in the total amount of $36,367.45.

The general rule is that “ ‘[d]amages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.’ OCGA § 13-6-2.” Quigley v. Jones, 255 Ga. 33 (334 SE2d 664) (1985); see also OCGA § 13-6-8. But as to breach of a contract to sell real property, a special damage rule applies which provides that “the measure of damages for breach of a contract to sell land is the difference between the contract price and the fair market value of the land at the time of the breach.” Quigley, 255 Ga. at 33. Moreover, under the special rule for breach of a contract to sell land, there can be no recovery of additional damages of the type recoverable under OCGA §§ 13-6-2 and 13-6-8 “in the absence of a clause in the parties’ contract expressly authorizing such recovery.” Quigley, 255 Ga. at 34.

In the present case, there was no evidence establishing damages under the special rule by showing the difference between the $55,000 contract price and the fair market value of the land at the time of the breach of contract on September 5, 2008. The trial court erred by finding that Dotson established $30,000 of recoverable damages by showing that the real property had decreased in value from $55,000 at the time of the contract to $25,000 as of the date of the trial on August 10, 2011. The trial court also erred by finding that Dotson established a right to recover other additional damages in the amount of $6,367.45. In Quigley, the Supreme Court held that general language in the parties’ real estate sales contract which entitled the seller in the event of the buyer’s breach to “recover additional damages under this contract” did not expressly authorize recovery of such additional damages. Id. at 34, n. 1. Similarly, we find that general language in the real estate sales contract between Dotson and Roba authorizing the seller in the event of the buyer’s breach to pursue the buyer “for any available remedy at law or in equity” did not expressly authorize the recovery sought by Dotson for the $6,367.45 of additional damages set forth above or for additional damages for a decrease in property value from the date of the breach of contract to the date of trial. Denny v. Nutt, 189 Ga. App. 387, 388 (375 SE2d 878) (1988); Quigley, 255 Ga. at 33-34.

Judgment affirmed in part and reversed in part.

Doyle, P. J., and Boggs, J., concur.

Decided April 30, 2012.

Abdulwahab Roba, pro se.

Patrick Dotson, pro se.


text:
    A12A0754.
    CASTANEDA v. THE STATE.
    (727 SE2d 543)
   Andrews, Judge.

Alejandro Castaneda was found guilty by a jury of aggravated' sexual battery and two counts of child molestation. On appeal, he claims that the evidence was insufficient to support the guilty verdict for aggravated sexual battery, and that his conviction for the offense of aggravated sexual battery merged with his conviction for molesting the child in connection with that offense. We find that the evidence was sufficient to support the conviction for aggravated sexual battery, but agree that one count of child molestation merged with aggravated sexual battery.

1. On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict. Parker v. State, 220 Ga. App. 303 (469 SE2d 410) (1996). Viewed in this light, the State produced the following evidence. The victim, who was Castaneda’s daughter and 13 years old at the time of the alleged crimes, testified that on two occasions Castaneda touched her vagina with his hand while they were lying together in bed. Apolice officer who interviewed the child testified that the child told him that Castaneda touched her between her legs and put his fingers inside her. A nurse who interviewed the child testified that the child told her that on more than one occasion Castaneda touched her with his hand in her groin area and that he put his finger inside her. Castaneda gave a statement to police in which he admitted that on two occasions he put his hand on the child’s vagina. Castaneda claimed in the statement that he only put the tip of his finger inside the child, and that she encouraged the incidents by fondling him. The evidence was sufficient for the jury to find beyond a reasonable doubt that Castaneda was guilty of two counts of child molestation by touching the child’s vagina with his hand in violation of OCGA § 16-6-4 (a), and one count of aggravated sexual battery by penetrating the child’s sexual organ with his finger in violation of OCGA § 16-6-22.2. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 30, 2012.

Clark & Towne, Jessica R. Towne, for appellant.

Daniel J. Porter, District Attorney, Stephen A. Fern, Assistant District Attorney, for appellee.

2. The evidence showed that Castaneda committed the offense of child molestation under Count 2 of the indictment by touching the child’s vagina with his hand at the same time that he committed the offense of aggravated sexual battery by penetrating her vagina with his finger. Because, looking at the evidence required to prove each crime, child molestation under Count 2 was established by proof of the same or less than all the facts required to establish commission of aggravated sexual battery, child molestation under Count 2 was a lesser included offense of aggravated sexual battery and merged into aggravated sexual battery as a matter of fact. Hudson v. State, 309 Ga. App. 580-582 (711 SE2d 95) (2011); Davenport v. State, 277 Ga. App. 758, 760-761 (627 SE2d 133) (2006); Rudisail v. State, 265 Ga. App. 293, 295 (593 SE2d 747) (2004); Shamsuddeen v. State, 255 Ga. App. 326, 327-328 (565 SE2d 544) (2002). Accordingly, the conviction and sentence for child molestation under Count 2 is vacated, the sentences are vacated on the remaining counts, and the case is remanded to the trial court for resentencing.

Judgment affirmed in part and vacated in part. Sentences vacated and case remanded for resentencing.

Doyle, P. J., and Boggs, J., concur.


author: Blackwell, Judge.

text:
    A12A0237.
    SOLIS-MORALES v. THE STATE.
    (728 SE2d 253)
   Blackwell, Judge.

Jose Luis Solis-Morales was tried by a Gwinnett County jury and convicted of aggravated assault, burglary, and six counts of false imprisonment. Solis-Morales now appeals, contending that the trial court erred when it allowed the State to present evidence that, according to Solis-Morales, is substantially more prejudicial than probative. We find no merit to this claim, and we affirm Solis-Morales’s convictions.

It is within the sound discretion of the trial court to determine if the probative value of the evidence “is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Quedens v. State, 280 Ga. 355, 361 (4) (629 SE2d 197) (2006) (citation and punctuation omitted); see also Alvelo v. State, 290 Ga. 609, 613 (4) (724 SE2d 377) (2012). Here, Solis-Morales claims that he was unfairly prejudiced when the jury was allowed to view a video recording of a police officer conducting a search of his pockets after he was arrested because, Solis-Morales alleges, he was restrained in handcuffs at the time of the search.

First, we disagree with Solis-Morales’s assertion that the video recording is not “probative” because it is irrelevant and cumulative of other evidence. Although Solis-Morales has failed to provide a copy of the video recording with the appellate record, he acknowledges that it shows a police officer recovering a set of keys from his pocket during a search at the Norcross police station. At trial, the State offered testimony to show that the keys belonged to one of the victims of the home invasion, and this evidence supported the claim that Solis-Morales committed an armed robbery in which the keys were taken from the victim at gunpoint.

When the video of the search was shown to the jury, the officer who conducted the search had already testified that he discovered the victim’s keys in Solis-Morales’s pocket. But his testimony on this issue was challenged by Solis-Morales. For example, on cross-examination, the officer acknowledged that it was standard procedure to frisk a suspect at the time he was arrested, that the officers who searched Solis-Morales at the time of his arrest should have found any keys in his pocket, and that, because the keys were on a chain that also included a small pocket knife, the keys would not have been given back to Solis-Morales after being initially discovered by the arresting officers. Solis-Morales’s lawyer asked the officer how it was possible that a key chain with a pocket knife could have remained in his client’s pocket until the time that the officer claimed to have discovered it at the police station, and he also asked him if he had described finding the victim’s keys in his client’s pocket as evidence that was both “beautiful and perfect.” Because the circumstances surrounding the officer’s discovery of the victim’s keys in Solis-Morales’s pocket comprised a material fact at issue, and because the video recording was the only evidence supporting the officer’s disputed testimony on this point, the trial court did not abuse its discretion in determining that the video recording is relevant and not cumulative of other evidence. See Mims v. State, 314 Ga. App. 170, 174(2) (723 SE2d 486) (2012) (evidence is relevant “if it tends to prove or to disprove a material fact at issue, and every act or circumstance which serves to explain or throw light upon a material issue is relevant”) (citation and punctuation omitted).

In addition, we do not agree with Solis-Morales’s claim that the video recording had a tendency to prejudice the jury just because it shows him restrained by handcuffs. First, the State alleges, and Solis-Morales has not shown otherwise, that the video consists of a 38-second recording in which the officer discovers the keys in Solis-Morales’s pocket, Solis-Morales appears to have his arms by his side, and there is no indication that Solis-Morales is wearing handcuffs. Even if it were otherwise, the jury had already heard testimony showing that, at the time the officer claimed to have discovered the keys in Solis-Morales’s pocket, Solis-Morales had been arrested, handcuffed, and transported to the Norcross police station. In fact, several witnesses had specifically testified, without objection, that Solis-Morales was secured and placed in handcuffs at the scene of the home invasion. And the jury was instructed that, even though Solis-Morales had been arrested, he was presumed to be innocent unless proven guilty beyond a reasonable doubt. Because the jury already knew that Solis-Morales had been handcuffed by the time of the search, and because the trial court properly charged the jury on the presumption of innocence, we cannot say that Solis-Morales has shown any likelihood that he was prejudiced by the video, much less that the probative value of the video is “substantially” outweighed by the danger of unfair prejudice. See Hicks v. State, 256 Ga. 715, 720-721 (13) (352 SE2d 762) (1987).

Decided May 1, 2012.

Mary Erickson, for appellant.

Daniel J. Porter, District Attorney, Michael D. Morrison, Assistant District Attorney, for appellee.

Judgment affirmed.

Mikell, P. J., and Miller, J., concur.

       OCGA§ 16-5-21 (a).

       OCGA§ 16-7-1 (a).

       OCGA§ 16-5-41 (a). In addition, the jury found Solis-Morales not guilty of armed robbery.

       See Williams v. State, 269 Ga. App. 512, 513 (2) (604 SE2d 592) (2004).

       Solis-Morales and three accomplices were charged with crimes relating to a home invasion in Norcross. One of the victims was able to call 911 during the incident, and Solis-Morales and his accomplices were arrested at the scene. At trial, Solis-Morales’s lawyer argued that even though his client was in the house uninvited, there was no evidence that he directly participated in any of the crimes.

       We note that we could affirm the judgment below on this ground alone. See Zellars v. State, 314 Ga. App. 88, 89-90 (2), n. 3 (723 SE2d 319) (2012) (appellant has the burden of showing error by the record, and an appellate court may affirm on the ground that “the appellant failed to present a record sufficient to enable the court to determine whether the trial court has committed reversible error”) (citation and punctuation omitted).

       And given that Solis-Morales was found not guilty of the armed robbery of the keys, the jury may have been persuaded by Solis-Morales’s cross-examination of the officer.

       Even if this testimony did not appear in the record, most jurors would assume, we expect, that the police usually handcuff someone arrested for armed robbery.


author: MIKELL, Presiding Judge. BLACKWELL, Judge,

text:
    A12A0395.
    MARTINEZ v. THE STATE.
    (728 SE2d 255)
   MIKELL, Presiding Judge.

Jackson Martinez was convicted by a jury of one count each of trafficking in cocaine and reckless driving. Martinez appeals from the order denying his motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court erred in admitting prior bad acts into evidence and by failing to give an appropriate limiting instruction. Discerning no error, we affirm.

On appeal from a criminal conviction, we-view the evidence

in the light most favorable to the verdict, and [Martinez] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

So viewed, the record shows that a confidential informant notified Special Agent Angel Santos, an officer with the Fayette County Drug Task Force, that the informant and others would be bringing a large quantity of cocaine from Gwinnett County to Fayette County. The informant told Santos that two specific vehicles, a Crown Victoria and a Honda Civic, would be transporting four kilograms of cocaine to an address on Pine Trail in Fayette County. Members of the task force assembled near the location on Pine Drive and waited for the two vehicles to arrive. When they arrived, the occupants of the Crown Victoria were apprehended. Seeing this, Martinez, driving the Honda Civic, fled from the scene through a ditch, breaking a culvert pipe, nearly striking police officers standing in the street, and damaging several police vehicles before Officer Santos was able to stop the Honda Civic by striking it head-on with his own vehicle. In the back of the Honda Civic, a black backpack containing approximately four kilograms of cocaine was found.

Martinez was arrested and transported to the hospital for evaluation after the crash. After being released, Officer Jody Thomas and Captain Mike Pruitt advised Martinez of his Miranda rights, which Martinez waived by making a voluntary statement admitting that he was the driver of the Honda Civic and that he did know that the car contained illegal drugs.

1. Martinez contends that the evidence was insufficient to sustain his trafficking in cocaine conviction, arguing that the state failed to prove that he had knowledge that the contraband he was transporting was cocaine.

Martinez argues that the evidence was insufficient to prove that he knew that the black bookbag in the Honda Civic contained cocaine because the evidence presented did not exclude the hypothesis that the confidential informant could have placed the cocaine in the car without Martinez’s knowledge. A conviction based upon circumstantial evidence “is supported only if the proved facts exclude every reasonable hypothesis save that of the defendant’s guilt.” In this case, the jury was presented with the following evidence sufficient to determine beyond a reasonable doubt that Martinez was guilty of trafficking in cocaine: in his custodial statement, Martinez admitted that he was the driver of the Honda Civic and that he had been paid to drive drugs from Gwinnett County to Fayette County. Martinez further stated that he had transported both cocaine and marijuana in the past; that he had been told he was transporting marijuana; and that he had charged a lower fee based on that belief. The backseat passenger told Martinez he was transporting four kilos of cocaine only as they spotted the police officers. Martinez further admitted to fleeing and trying to damage cars during his flight because he knew he would be caught and wanted to tear things up in the process.

“It is the jury’s role to resolve evidentiary conflicts, determine witness credibility, and decide the reasonableness of hypotheses based upon the circumstantial evidence.” Further, doubts as to the reasonableness of the hypotheses are

to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.

Accordingly, we conclude that the evidence was sufficient to support the jury’s verdict that Martinez was guilty of trafficking in cocaine beyond a reasonable doubt.

2. Martinez next contends that the trial court erred in denying his motion in limine to redact references to prior drug trafficking from the statement he made to Officer Thomas after his arrest because these references impermissibly placed his character in evidence. We disagree.

After being advised of his Miranda rights, Martinez made a statement to Officer Thomas admitting that he was the driver of the Honda Civic containing four kilograms of cocaine, that he had transported narcotics several times before and that he had pre-arranged prices based upon whether he was to transport cocaine or marijuana. Officer Thomas stated that Martinez made this statement to explain that he only found out that he was transporting cocaine once officers began trying to apprehend his car and that is why he tried to escape in such a reckless manner. The portions of the statement challenged by Martinez “were an integral part of a criminal confession, and such statements are not rendered impermissible because the language used therein indicates that the accused has committed another and separate offense.”

3. Martinez next argues that the trial court erred by not giving a limiting instruction to the jury on the references to the prior acts of drug trafficking. However, “[t]he failure to give a requested charge which is authorized by the evidence can be harmless error. The inquiry is whether it is highly probable that the error contributed to the verdict.” Even disregarding Martinez’s statement regarding his prior acts of drug trafficking, the evidence of his guilt is overwhelming. In addition, the court gave the pattern jury instruction on credibility, including language that the jury may consider a witness’s credibility. Under these circumstances, we find it highly probable that the failure to issue the requested limiting instruction, even if in error, was harmless and did not contribute to the jury verdict.

Decided May 1, 2012.

Walker L. Chandler, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Miller, J., concurs. Blackwell, J., concurs fully and specially.

BLACKWELL, Judge,

concurring fully and specially.

I concur fully in the opinion of the Court, but I write separately to explain why we need not decide in this case whether Martinez is right when he argues that the State was required to prove that he knew the identity of the controlled substance in which he was trafficking. Even if he were right, there was evidence at trial that, when Martinez encountered law enforcement officers, a passenger informed Martinez that they were transporting several kilograms of cocaine. After the passenger informed Martinez that they had cocaine, Martinez attempted to drive away with the cocaine, an act that, the jury could have found, itself amounted to trafficking. Accordingly, even assuming that Martinez is right about the knowledge element of OCGA § 16-13-31 — something about which I offer no opinion — there is enough evidence in this case to sustain his conviction for trafficking in cocaine. Cf. Harrison v. State, 309 Ga. App. 454, 457-458 (2) (a) (711 SE2d 35) (2011) (declining to decide whether, to prove trafficking in cocaine, the State must prove that the defendant knew of weight of cocaine because, even assuming that it is required to prove such knowledge, jury instruction adequately conveyed that requirement).

       (Citations and punctuation omitted.) Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 16-13-31 defines the offense of illegal drug trafficking. Martinez was convicted of cocaine trafficking under subsection (a) (1) of that statute, which provides in pertinent part that “[a]ny person ... who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine . . . commits the felony offense of trafficking in cocaine.”

       (Footnote omitted.) Brown v. State, 307 Ga. App. 99, 100 (1) (a) (704 SE2d 227) (2010).

       (Punctuation and footnote omitted.) Ferrell v. State, 312 Ga. App. 122, 125 (1) (717 SE2d 705) (2011).

       (Footnote omitted.) Id.

       See Perez v. State, 249 Ga. App. 28, 29 (546 SE2d 564) (2001).

       (Citations and punctuation omitted.) Walker v. State, 264 Ga. 79, 80 (3) (440 SE2d 637) (1994). Accord Washington v. State, 268 Ga. 598, 599-600 (2) (492 SE2d 197) (1997); Greer v. State, 199 Ga. App. 106, 107 (1) (403 SE2d 825) (1991).

       (Citations and punctuation omitted.) Brown v. State, 289 Ga. 259, 261 (2) (710 SE2d 751) (2011).

       Id.