text:
    A14A1431.
    PRESSLEY v. THE STATE.
    (770 SE2d 266)
   Phipps, Chief Judge.

Darrin Pressley appeals his convictions for armed robbery, criminal trespass, and two counts of aggravated assault. He contends that he is entitled to a new trial because: (1) his “right to due process was violated, and the trial court erred by allowing the State to bolster one of its complaining witnesses”; and (2) the state made an improper comment in its closing argument. We affirm.

The evidence, viewed in the light most favorable to the verdict, showed the following. Pressley and Prescilla Smith had dated each other for about four years. During some of that time, Pressley resided with Smith in her home. After their “exclusive relationship” had ended, Pressley continued to be involved in Smith’s life because he was “like a father” to Smith’s children, and he would “still get the kids, still see the kids”; but he no longer lived with Smith. Smith had the door locks changed.

On the weekend of July 4, 2010, approximately one year after Smith’s- and Pressley’s dating relationship had ended, Smith met Quincy Bozeman in New Orleans at a festival. Bozeman resided in California. After the festival, Smith and Bozeman frequently spoke with each other by phone, and later that month, Bozeman traveled to Georgia to visit Smith; while in Georgia, he stayed at Smith’s residence. On the night of July 31, as Smith and Bozeman were asleep in Smith’s bed, they “woke up to [Pressley] in the house,” pointing a firearm at them and threatening to kill them.

Pressley questioned Smith and Bozeman about their relationship. Eventually, Pressley retrieved Bozeman’s clothes from Smith’s side of the bed, threw them at Bozeman, and ordered Bozeman to leave. Bozeman had about $350 in the pocket of his pants; Pressley took the money as well as Bozeman’s cell phone. After Bozeman put on his clothes, Pressley escorted him by gunpoint to his (Bozeman’s) rental vehicle, which was parked in Smith’s garage. Bozeman entered the vehicle and drove away, leaving Smith alone in the house with Pressley. Pressley ordered Smith upstairs, where he asked her more questions about her relationship with Bozeman. Pressley later left the house. Smith got dressed and went to a friend’s house.

1. Pressley contends that he is entitled to a new trial because his “right to due process was violated, and the trial court erred by allowing the State to bolster one of its complaining witnesses.”

At trial, Bozeman testified that Pressley held him and Smith at gunpoint, threatened to kill him, and robbed him of his money and cell phone. Near the end of the state’s direct examination of Bozeman, the prosecutor asked Bozeman, “have you been looking forward to coming and testifying?” Before Bozeman answered the question, Pressley’s trial counsel objected on the basis of relevance. The trial court sustained the objection. The prosecutor then asked Bozeman, “Have you ever asked that my office dismiss these charges?” Before Bozeman answered that question, Pressley’s trial counsel objected on the basis of relevance and bolstering. The trial court sustained the objection. The prosecutor asked Bozeman a few more questions, and ended the direct examination. Pressley’s trial attorney then began his cross-examination of Bozeman with an inquiry about whether the state had “paid to fly [him]” to Georgia for the trial, and about whether the state was paying for his hotel room while he was in Georgia. Bozeman answered “Yes” to both questions.

On redirect examination, the state asked Bozeman whether he was testifying willingly, and whether he had participated in and supported the state’s prosecution of Pressley. Trial counsel objected, stating “[a]gain, Your Honor, this goes back to my objection before. This goes to bolstering.” The state replied that defense counsel had opened the door to the state’s inquiry when, during cross-examination, defense counsel asked Bozeman whether the state was paying for Bozeman’s travel expenses and hotel accommodations while he was in Georgia. The state argued that defense counsel’s questions and Bozeman’s responses thereto inferred or suggested that the state was “somehow encouraging or buying [Bozeman’s] testimony,” and that the state was thus entitled to ask Bozeman whether he was testifying willingly. The trial court permitted the question, stating “It seems to me a proper scope of redirect.” Thereupon, Bozeman affirmed that he was a willing participant in the state’s prosecution of Pressley, and that he had cooperated with police and with the prosecutor’s office for the entire two years that had passed between the incident and the trial.

(a) No due process violation. Pressley asserts that the purpose of the questions he had posed to Bozeman on cross-examination about the state paying Bozeman’s travel expenses and hotel accommodations was to “undo the improper questioning by the State,” as “[i]t would certainly violate a defendant’s right to a fair trial if a prosecutor was allowed to ask improper questions and leave the jury with false impressions.” But “[w]here an objected-to question is not answered by the witness, there is no harmful error.” In this case, “[s]ince [neither challenged question posed by the state] was ... answered by the witness, the error, if any, was harmless.”

(b) No improper bolstering.

Normally, a party may not bolster the veracity of its own witness until the witness has been impeached by the adverse party. Evidence which goes to a witness’s credibility is not relevant unless produced to attack the credibility of a witness, or to rehabilitate credibility when it has been attacked.

“A witness’s veracity is placed in issue ... if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination.” Pressley’s introduction of evidence, during his cross-examination of Bozeman, that the state had paid for Bozeman’s travel expenses and hotel accommodations was a charge that Bozeman had been improperly influenced or improperly motivated to testify in favor of the prosecution, and the state was entitled to rehabilitate Bozeman’s credibility by introducing evidence that Bozeman was testifying willingly.

2. Pressley contends that he is entitled to a new trial because the state made an improper comment in its closing argument.

During the state’s closing argument, the following occurred as the state summarized Bozeman’s demeanor while he was testifying:

[PROSECUTOR]: He came to you. You got to see him. And he was emotional, and it was hard for him. But then, on the other hand, he was also happy to tell you his story because he believes and I tend to agree
[DEFENSE ATTORNEY]: Objection, Your Honor. What the prosecutor thinks, what the prosecutor believes is not relevant in closing argument.
THE COURT: Okay. Rephrase.
[PROSECUTOR]: He believes that Darrin Pressley should pay for what he did. And he should. He should pay for what he did. So as you’re seeking the truth while you’re in the jury room, I submit to you that it’s not going to be difficult to determine what the truth is. It will be a hard decision for you because this is very serious. We’re talking about not only that man’s life, but the lives of Prestidla Smith, the lives of her children, the lives [sic] of Quincy Bozeman. It’s going to be a hard decision, it’s going to be a hard process but you know what the truth is.

Pressley challenges the italicized remark, contending that it constituted an impermissible comment on Bozeman’s credibility.

Decided March 16, 2015

Zell & Zell, Rodney S. Zell, for appellant.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Charles W. Grimsley, Assistant District Attorneys, for appellee.

But the prosecutor did not finish her statement before defense counsel objected, and Pressley has not identified any specific statement which even arguably constituted a comment by the prosecutor as to her personal opinion of Bozeman’s veracity. The statements that the prosecutor made after the trial court ordered her to ££[r]ephrase” the remark, reflect that she was going to argue that the evidence led to the conclusion that Pressley should be held accountable for his actions; such an argument was permissible.

Judgment affirmed.

Ellington, P. J., and McMillian, J., concur.

        Hardwick v. State, 250 Ga. App. 390, 393 (3) (551 SE2d 789) (2001) (citations and punctuation omitted).

        Arnold v. State, 236 Ga. 534, 536 (2) (224 SE2d 386) (1976) (citation omitted). See generally Jackson v. State, 233 Ga. 529, 531 (4) (212 SE2d 366) (1975); Watkins v. State, 285 Ga. 107, 110-111 (4) (674 SE2d 275) (2009); Barrow v. State, 269 Ga. App. 635, 638 (4) (605 SE2d 67) (2004).

        Hall v. State, 255 Ga. App. 631, 632 (1) (566 SE2d 374) (2002) (citation, punctuation, footnote and emphasis omitted).

        Thompson v. State, 281 Ga. App. 627, 631 (3) (636 SE2d 779) (2006) (citation and punctuation omitted).

       See generally Nance v. State, 272 Ga. 217, 221-222 (5) (526 SE2d 560) (2000); Jones v. State, 318 Ga. App. 342, 347 (3) (a) (ii) (733 SE2d 400) (2012) (“Although a party normally may not holster the veracity of an unimpeached witness, the State may rehabilitate a witness whose credibility has been attacked.”) (citations and punctuation omitted).

       (Emphasis supplied.)

        Metts v. State, 270 Ga. 481, 484 (4) (511 SE2d 508) (1999) (“It is improper for counsel to state to the jury counsel’s personal belief as to the veracity of a witness; however, it is not improper for counsel to urge the jury to draw such a conclusion from the evidence.”) (citation omitted).

       See, e.g., Bolden v. State, 272 Ga. 1 (525 SE2d 690) (2000) (reversing conviction where trial court overruled defense objection to the prosecutor’s statement, “[y]ou look at what you heard from the officer, who I thought was very credible”); Alexander v. State, 263 Ga. 474, 477 (2) (d), n. 8 (435 SE2d 187) (1993) (prosecutor’s statements “I thought [the witness] was extremely credible, and I thought you did, too”; “I’ll tell you it’s true. I loved finding him”; and “[the witness] told you the truth____He was completely worthy of belief ” were improper, though error was harmless).

       See generally Hoggins v. State, 277 Ga. App. 742, 746 (3) (627 SE2d 448) (2006) (“It is not improper for a prosecutor to ... stress the need for enforcement of the laws and to impress on the jury its responsibility in that regard.”).


source: Caselaw Access Project

author: Phipps, Chief Judge.

license: Public Domain

text:
    A14A1887.
    DeKALB COUNTY v. HEATH.
    (770 SE2d 269)
   Phipps, Chief Judge.

In 2011, William Heath, Jr., filed this inverse condemnation action against DeKalb County, alleging that the county was maintaining a continuing nuisance by failing to make needed repairs to its storm water drainage system, which failure had caused flooding and erosion of his property. More specifically, Heath’s allegations in this action included claims that the county had constructed a block retaining wall along a creek bed on his property, that the county was responsible for maintaining the wall, that the wall was “failing and continues to deteriorate during each rain event,” and that the county’s failure to maintain the wall was resulting in continuing damage to his property. After a bench trial, the court found in favor of Heath, awarding him $28,830 in damages, which amount represented the cost of repairing the failing retaining wall.

The county appeals, contending that the trial court erred by: (1) holding that the lawsuit was not barred by the doctrine of res judicata, when Heath could have put the issue of the failed retaining wall in a previous lawsuit he had filed against the county; and (2) allowing a double recovery. Finding no error, we affirm.

When an appeal is taken from a judgment entered following a bench trial, we owe no deference to the way in which the court below resolved questions of law, but we accept its factual findings unless clearly erroneous, and we view the evidence in the light most favorable to the judgment.

In 2009, Heath and another plaintiff filed a joint action against the county for inverse condemnation, alleging that the county had created and maintained a continuing nuisance by failing to properly maintain its sewer and storm water drainage system, and that the failure had resulted in flooding and erosion of their properties. That 2009 case (“Heath 7”) was tried by a jury which, in October 2012, awarded Heath $7,000 for the diminished value of his property. The court entered judgment on the verdict that same month.

In March 2011, while Heath I was pending, Heath filed the present action against the county. This time Heath alleged, for the first time, that the block retaining wall that the county had constructed on his property in 2007 for the purpose of preventing erosion to his property in connection with the storm water drainage system had been improperly built and maintained; that the retaining wall was failing and continuing to deteriorate each time it rained; and that the system was continuing to damage his property and was causing a hazardous condition thereon. (As stated above, in this action the trial court awarded to Heath money damages for the cost of repairing the retaining wall.)

1. The county contends that the trial court erred by ruling that the doctrine of res judicata does not bar the instant action. The county posits that Heath could have amended the complaint in Heath I to include damages for the retaining wall failure; by failing to do so, the county contends, Heath is barred from prosecuting this “new action based upon that same set of facts.” The county’s contention is without merit.

OCGA § 9-12-40 provides:

A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

Further,

[t]he doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action. Res judicata prevents a plaintiff from instituting a second complaint against a defendant on a claim that has already been brought, after having previously been adjudged not to be entitled to the recovery sought on that claim. Three prerequisites must be satisfied before res judicata applies — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.

“Where the original nuisance to land is of a permanent character, so that the damages inflicted thereby are permanent, a recovery not only may, but must, be had for the entire damages in one action.” However,

[w]here a nuisance is not permanent in its character, but is one which can and should be abated by the person erecting or maintaining it, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie____In the case of nuisances which are transient rather than permanent in their character, the continuance of the injurious acts is considered a new nuisance, for which a fresh action will lie; and, although the original cause of action is barred, damages may be recovered for the continuance of the nuisance.

Where subsequent damage is alleged by the continuance of the injurious acts, res judicata does not necessarily bar a new action.

Here, the causes of action in the two lawsuits were not identical. Although based on some of the same facts, Heath I concerned the diminished value of Heath’s property due to flooding and erosion (and resulted in a damage award therefor), which diminution resulted from the county’s failure to maintain its storm water drainage system. The present lawsuit dealt with the ongoing and increasing damage resulting — with each rainfall — from the county’s failure to maintain its storm water drainage system, including the deteriorating retaining wall. It is undisputed that the wall had not failed at the time Heath I was filed; the county concedes in its brief that “the failure of the wall due to [the county’s] improper maintenance occurred after the first case was filed.” And, in connection therewith, in this case Heath sought damages for the cost of repairing the wall to prevent further damage to his property, not diminution damages. Inasmuch as the two actions did not share identical causes of action, and the present action involved a fresh nuisance for which a fresh action would lie, the court correctly rejected the county’s res judicata argument.*

The county contends that “the first case could have been amended (or more properly, supplemented) ... to include any separate damages, if there were any, from the failure of the retaining wall.” As discussed above, “every continuance of the nuisance is a fresh nuisance for which a fresh action will lie.” A new cause of action stemmed from the failure of the wall — which failure occurred well after Heath I was filed; when this action was filed, the nuisance had not been abated and the damage to Heath’s property was continuing and increasing. Under the circumstances, Heath was not required to amend the complaint in Heath I to include the new cause of action, and the doctrine of res judicata does not apply.

Decided March 16, 2015

Laura K. Johnson, Kendric E. Smith, for appellant.

Martin & Jones, Samuel L. Starks, G. Christopher Olson, Elizabeth Z Rodger, for appellee.

2. The county contends that the court erred by allowing a double recovery, in that Heath had already recovered damages in the first trial for the diminution in value of his property, which property included the retaining wall. However, as discussed above, the court awarded damages in the present action for the cost of repairing the failing retaining wall that the county had constructed, not for the depreciation in value of Heath’s property (as was the basis for the damage award in Heath I). Accordingly, there was no double recovery.

Judgment affirmed.

Ellington, P. J., and McMillian, J., concur.

       See Ga. Dept. of Transp. v. Jackson, 322 Ga. App. 212, 215 (744 SE2d 389) (2013) (“An inverse condemnation claim arises when the governmental entity creates a condition on private property that amounts to a taking without compensation”) (citation and punctuation omitted).

       See OCGA § 41-1-1 (“Anuisance is anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being anuisance. . . .”).

        Fedina v. Larichev, 322 Ga. App. 76 (744 SE2d 72) (2013) (footnote omitted).

       The other plaintiff was Heath’s neighbor, Uwe Haarhoff.

       The plaintiffs also named as a defendant Jefferson at Perimeter, L. P. Neither Haarhoff nor Jefferson at Perimeter, L. P. are parties to the present action.

       Haarhoff was also awarded diminution damages.

        Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865-866 (1) (463 SE2d 5) (1995) (footnotes omitted; emphasis supplied).

        Shaheen v. G & G Corp., 230 Ga. 646, 648 (2) (198 SE2d 853) (1973) (citation and punctuation omitted).

       Id. (citation and punctuation omitted).

       See Dunn v. Payne, 205 Ga. App. 440, 441 (1) (422 SE2d 291) (1992).

       See Lawson v. Watkins, 261 Ga. 147, 148-149 (1) (401 SE2d 719) (1991); Shaheen, supra.

        City of Gainesville v. Waters, 258 Ga. App. 555, 558 (3) (574 SE2d 638) (2002).

       See generally Waldroup, supra (for res judicata to apply, there must be identity of the cause of action).

       See Ga. Northeastern R. v. Lusk, 277 Ga. 245, 246-247 (1), (2) (587 SE2d 643) (2003) (“[A] plaintiff is not entitled to an award of both the diminution in market value and costs to restore for the same injury occasioned by the same trespass and nuisance”; Court recognized that plaintiff could recover both diminution damages and costs of repairs to prevent further deterioration and damage to property as a result of the nuisance).


author: Dillard, Judge.

text:
    A14A1950.
    EZ GREEN ASSOCIATES, LLC v. GEORGIA-PACIFIC CORPORATION et al.
    (770 SE2d 273)
   Dillard, Judge.

This litigation arises from a contractual dispute between the parties regarding a proprietary system for applying grass seed. 1 EZ Green Associates, LLC (“EZ Green”) brought this action for breach of contract and a covenant of fair dealing against Georgia-Pacific Corporation, its assignee, GP Cellulose, LLC (f/k/a Koch Cellulose, LLC), and BlueYellow, LLC, a GP Cellulose subsidiary (collectively “Georgia-Pacific”). In a prior appeal, we reversed the trial court’s grant of summary judgment in favor of Georgia-Pacific, finding that conflicts in the evidence required EZ Green’s claims to be resolved by a jury. Upon remand to the trial court, EZ Green proposed three methods for calculating its damages, and Georgia-Pacific filed a pretrial motion to exclude those methods. The trial court granted the motion as to the first two methods and granted it, in part, as to the third method. In this interlocutory appeal, EZ Green argues that the trial court erred in finding that it failed to present evidence that its track record of sales had been tainted by Georgia-Pacific’s misconduct; by excluding the “commercially reasonable” benchmarks set forth in the contract for damages purposes; and by excluding Georgia-Pacific’s own projections of expected sales. EZ Green also argues that the trial court’s order contravenes public policy. For the reasons set forth infra, we affirm.

The record reveals that EZ Green and Georgia-Pacific originally entered into an agreement in 2003 regarding the sale of a product developed by EZ Green, which the parties revised on April 30, 2004. The contract provided that, for a period of five years, EZ Green would license its product to Georgia-Pacific, and in exchange, Georgia-Pacific agreed to make “commercially reasonable efforts” to market and sell the product. To that end, Section 7.3 (a) of the contract set forth specific benchmarks for the volume of sales that the parties expected to achieve each year. And if Georgia-Pacific achieved these goals, it would be deemed to have fulfilled its obligations under the agreement.

In 2006, a large national retailer agreed to test the product in its stores, but there was a substantial delay in placing the product with the retailer. In 2005, before the product was sold in these stores, Georgia-Pacific compiled a PowerPoint presentation, detailing its sales projections with the large retailer, which were based on the amount of sales that EZ Green’s product had previously generated in a smaller market. Eventually, the product was sold by the large retailer, but in the summer of 2007, executives from that retailer advised Georgia-Pacific that sales of the product were well below their expectations, and accordingly, EZ Green would have to requalify to have its product sold in their stores.

Subsequently, EZ Green sued Georgia-Pacific for breach of contract and the covenant of fair dealing, alleging that Georgia-Pacific breached the agreement by ceasing production of the product and by failing to market it. Discovery ensued, and prior to trial, EZ Green supplemented its response to Georgia-Pacific’s first set of interrogatories. In doing so, EZ Green proposed three methods for calculating damages in the event that the jury ruled in its favor. Specifically, EZ Green proposed to base its calculations on (1) the difference between the actual track record of performance and the anticipated amount of sales as measured by the benchmarks set forth in the contract; (2) the difference between the actual track record of sales and Georgia-Pacific’s projections of expected sales as set forth in Georgia-Pacific’s PowerPoint presentation; and (3) EZ Green’s “tainted” track record of sales with the major retailer over an 18-month period.

In response, Georgia-Pacific filed a motion to exclude EZ Green’s proposed calculation methods, arguing that they were not based on any actual track record of sales, as required by Georgia law. The trial court granted the motion as to the first two methods, finding that they were too speculative and unreliable, and that they failed to account for market realities. Further, the court granted the motion, in part, as to the third method, finding that EZ Green could use the method, but that it must reduce the amount of its lost royalties by any expenses that it would have incurred had the lost profits been realized.

EZ Green then filed a request for a certificate of immediate review, which the trial court granted. Thereafter, EZ Green filed in this Court an application for an interlocutory appeal, which we granted. This appeal follows.

At the outset, we note that a trial court’s ruling on a motion in limine is reviewed only for an abuse of discretion. Indeed, we have recognized that the admission or exclusion of evidence is “within the sound discretion of the trial court,” but “the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.” With these guiding principles in mind, we turn now to EZ Green’s claims of error.

1. EZ Green first argues that the trial court erred in holding that it failed to present evidence that its track record of sales was “tainted” by Georgia-Pacific’s misconduct. Further, EZ Green contends that, because Georgia-Pacific’s breach was “so complete,” it will never know the exact amount of its lost profits. This claim is without merit.

As an initial matter, we note that, although the parties briefed the issue below, the trial court did not address whether EZ Green’s track record of sales was tainted by Georgia-Pacific’s alleged wrongdoing. Instead, the trial court found that EZ Green “generically” made this allegation, without providing further explanation for why its actual sales figures were so unreliable that they should be disregarded entirely. On appeal, EZ Green challenges this finding, but fails to cite to any actual evidence in the record to show that the trial court erred in this regard. Indeed, EZ Green summarily lists four ways in which Georgia-Pacific’s conduct tainted its track record of sales, but then cites only to this Court’s previous opinion reversing summary judgment and two pages of the contract. However, our prior opinion and the contract are not evidence of Georgia-Pacific’s alleged misconduct. And because EZ Green fails to cite to any evidence in the record, which consists of 33 volumes and more than 7,000 pages, 11 to support its argument that it submitted sufficient evidence to show that Georgia-Pacific tainted its track record of sales, we are unable to review this claim of error.

Furthermore, to the extent EZ Green argues that, if its track record of sales is found to have been tainted by Georgia-Pacific’s wrongdoing, it should then be allowed to use projections of anticipated profits to calculate its damages, this argument is entirely unsupported. Indeed, EZ Green points us to no Georgia authority remotely suggesting that, if a defendant’s conduct taints a plaintiff’s track record of sales, we may disregard our long-standing precedent, set forth in Division 2 infra, forbidding plaintiffs from proving lost profits by speculative or uncertain means. As such, EZ Green is not exempt from the requirement that it must prove its damages to a reasonable degree of certainty.

Lastly, as to EZ Green’s argument that Georgia-Pacific’s breach was “so complete” that it will never know the exact amount of its damages, we note that the trial court did not find that EZ Green must prove the exact amount of its damages to a mathematical certainty. Instead, it found only that EZ Green must base its damages-calculation methods on its actual track record of sales, less any expenses it would have incurred had it realized those profits. As such, EZ Green’s argument bears no relation to the trial court’s ruling, and therefore is of no consequence.

2. Next, EZ Green argues that the trial court erred by excluding the “commercially reasonable” benchmarks set forth in Section 7.3 (a) of the contract for damages purposes, as well as Georgia-Pacific’s sales projections as contained in its 2005 PowerPoint presentation. We disagree.

In Georgia, the general rule as to the recoverability of lost profits as an item of damages is that “the expected profits of a commercial venture are not recoverable as they are too speculative, remote, and uncertain.” Nevertheless, when the type of business and history of profits make “the calculation of profits reasonably ascertainable, lost profits may be recovered.” Thus, generally speaking, lost profits may be recovered by a business only if “the business has a proven track record of profitability.” And although the amount of damages need not be calculated with exact mathematical certainty, a litigant must nonetheless establish lost profits with a reasonable degree of certainty. And in the case sub judice, EZ Green’s first and second proposed calculation methods simply do not satisfy this standard.

Here, the benchmarks set forth in Section 7.3 (a) of the agreement essentially establish a safe harbor for Georgia-Pacific by providing that, if the product met or exceeded a certain amount of anticipated sales each year, it would be deemed to have satisfied its contractual obligation to use commercially reasonable means to market and sell the product. Similarly, Georgia-Pacific’s 2005 PowerPoint presentation set forth its anticipated sales figures for EZ Green’s product after the product’s placement with a major retailer. And before the trial court, EZ Green sought to use those sales projections to calculate an estimate of its lost profits due to Georgia-Pacific’s alleged breach of the agreement.

But as previously noted, in Georgia, it is well settled that anticipated profits are too speculative and uncertain to be recoverable unless they are based on an actual track record of sales. And this requirement is based on the rationale that

[t]he profits of a commercial business are dependent on so many hazards and chances, that unless the anticipated profits are capable of ascertainment, and the loss of them traceable directly to the defendant’s wrongful act, they are too speculative to afford a basis for the computation of damages.

Here, EZ Green’s first two proposed calculation methods are based solely on anticipated or expected profits, not any actual track record of sales or history of profitability with the large retailer. Indeed, the contract and PowerPoint presentation were both drafted before EZ Green made any sales with the major retailer, and they merely set forth the amount of sales that the parties anticipated would be achieved in the future. Under such circumstances, EZ Green’s first two proposed calculation methods are simply too speculative, remote, and uncertain to be recoverable. As such, the trial court did not err in excluding them.

3. Lastly, EZ Green argues that the trial court’s order contravenes our state’s public policy. Again, we disagree.

Specifically, EZ Green asserts that Georgia-Pacific’s conduct in this case is “deplorable,” and that if we affirm the trial court’s order, the “lesson” from our opinion will be that large companies can breach contracts with impunity. It also contends that Georgia-Pacific should not be immune from recovery under Georgia law merely because the amount of lost profits is incapable of “exact calculation.”

Decided March 16, 2015

Stuart & Johnston, Andrew H. Stuart, Matthew A. Hood, for appellant.

King & Spalding, Elizabeth V. Tanis, Merritt E. McAlister, Xavier O. Carter, Goodwin Proctor, Joseph P. Rockers, for appellees.

First, because EZ Green did not develop a cogent argument or cite to any authority to support its claim, we need not address it. Nevertheless, as explained in Division 1 supra, neither the trial court nor this Court has indicated that EZ Green must prove the exact amount of its lost profits (i.e., to a “mathematical certainty”), as it is only required to prove such profits with “reasonable certainty.” And in any event, we are not at liberty to disregard well-settled and binding precedent merely because EZ Green disagrees with the results of its straightforward application in this case. Stare decisis may not be “an inexorable command,” but the application of this venerable doctrine is “essential to the performance of a well-ordered system of jurisprudence,” and we see no compelling reason to revisit or revise this aspect of our jurisprudence.

For all of the foregoing reasons, we affirm the trial court’s grant of Georgia-Pacific’s motion to exclude EZ Green’s proposed methods of calculating damages.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

       By motion and order of this Court, the briefs were filed under seal.

        See EZ Green Assocs., LLC v. Georgia-Pacific Corp., 318 Ga. App. 655 (734 SE2d 485) (2012).

       EZ Green further argues that, to the extent that Georgia-Pacific’s motion is considered by this Court to be a motion in limine, the trial court erred in granting it. As to this argument, we note that a pretrial motion regarding the admissibility of evidence is indeed a motion in limine, and as such, we will review the trial court’s order under the standard of review applicable to such motions. See Andrews v. Willbanks, 265 Ga. 555, 556 (458 SE2d 817) (1995) (noting that “[a] motion in limine is a pretrial method of determining the admissibility of evidence”); Collins v. Mitchell, 282 Ga. App. 860, 862 (2) (640 SE2d 364) (2006) (reviewing the denial of a motion to exclude evidence as a motion in limine).

        See EZ Green Assocs., LLC, 318 Ga. App. at 655.

       It is undisputed by the parties, and this Court previously found, that Georgia-Pacific failed to meet these benchmarks. See id. at 658 (1) (a) (“The parties expressly agreed in the contract that the achievement of a certain yearly volume of sales would demonstrate ‘commercially reasonable efforts,’ and that volume was not met.”).

        See id.

        See id. at 655.

        See Cartledge v. Montano, 325 Ga. App. 322, 324 (750 SE2d 722) (2013); Collins, 282 Ga. App. at 862 (2).

        Bryan v. Brown Childs Realty Co., 252 Ga. App. 502, 506 (1) (b) (556 SE2d 554) (2001); accord Homebuilders Ass’n of Georgia v. Morris, 238 Ga. App. 194, 195 (518 SE2d 194) (1999).

        See Bennett v. Quick, 305 Ga. App. 415, 416 (699 SE2d 539) (2010) (noting that “[t]he burden is upon the party alleging error to show it affirmatively in the record” (punctuation omitted)); Redford v. Collier Heights Apartments, 298 Ga. App. 116, 117 (679 SE2d 120) (2009) (explaining that “[i]t is well established that the burden is on the party alleging error to show it affirmatively by the record and where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm” (punctuation omitted)); Court of Appeals Rule 25 (c) (2) (providing that “[ejach enumerated error shall be supported in the brief by specific reference to the record or transcript [and] [i]n the absence of such reference, the Court will not search for or consider such enumeration”).

       The voluminous record at issue is from EZ Green’s prior appeal in Case No. A12A0919.

        See Bennett, 305 Ga. App. at 416; Redford, 298 Ga. App. at 117.

        Cf. Shaw v. Ruiz, 207 Ga. App. 299, 303-04 (11) (428 SE2d 98) (1993) (requiring plaintiff to show a proven track record of profitability when (as in this case) plaintiff alleged that lost profits were due to defendant’s failure to use reasonable efforts to generate sales).

       In arguing that it should be permitted to use damage-calculation methods based on anticipated profits as a result of Georgia-Pacific tainting its sales record, EZ Green relies on McMillian v. McMillian, 310 Ga. App. 735 (713 SE2d 920) (2011), where we noted that the rule that “difficulty in calculating precisely the damages sustained will not preclude their recovery is especially true when it is the conduct of the wrongdoer that prevents a more precise calculation.” Id. at 740. However, we also emphasized in McMillian that lost profits must still be proved within a reasonable degree of certainty, that anticipated profits are ordinarily too speculative to be recovered, and that a company is generally required to establish a proven track record of profitability. See id. at 740 n.7. Thus, we cautioned that because the company “never made much money,” proving lost profits could bean obstacle to recovery of damages that it could not overcome. Id.

        See Shaw, 207 Ga. App. at 304 (11) (“To recover lost profits one must show the probable gain with great specificity as well as expenses incurred in realizing such profits. In short, the gross amount minus expenses equals the amount of recovery.” (punctuation omitted)); accord Triad Drywall, LLC v. Bldg. Materials Wholesale, Inc., 300 Ga. App. 745, 746 (686 SE2d 364) (2009).

       Because they are closely related, we address EZ Green’s second and third enumerations of error together.

        Johnson County Sch. Dist. v. Greater Savannah Lawn Care, 278 Ga. App. 110, 112 (629 SE2d 271) (2006) (punctuation omitted); see also SMD, L.L.P. v. City of Roswell, 252 Ga. App. 438, 441 (2) (555 SE2d 813) (2001) (“As a general rule, expected profits of commercial business are too uncertain, speculative, and remote, to permit recovery for their loss.”).

        Johnson County Sch. Dist., 278 Ga. App. at 112 (punctuation omitted); see also SMD, L.L.P., 252 Ga. App. at 441 (2) (“[W]hile anticipated profits of an unestablished future business are generally too speculative for recovery, [when] the business has been long established, has uniformly made profits, and there are definite, certain, and reasonable data for their ascertainment, they may be recovered at least for a limited reasonable future time, even though they cannot be computed with exact mathematical certainty.”).

        Johnson County Sch. Dist., 278 Ga. App. at 112-13 (punctuation omitted); see also Triad Drywall, LLC, 300 Ga. App. at 747 (finding that plaintiff was required to show a “proven track record of profitability” to recover lost profits); Springwell Dispensers, Inc. v. Hall China Co., 204 Ga. App. 245, 246 (419 SE2d 112) (1992) (holding that new business with “no track record of profitability” was not entitled to recover lost profits as to a breach-of-contract claim).

        See Authentic Architectural Millworks, Inc. v. SCM Grp. USA, Inc., 262 Ga. App. 826, 831 (4) (586 SE2d 726) (2003) (finding that lost profits can be recoverable even when they can not be determined with “exact mathematical certainty’); B.H. Levy Bro. & Co. v. Allen, 53 Ga. App. 246, 247 (185 SE 369) (1936) (“While the anticipated profits of an unestablished future business are generally too speculative for recovery, yet where the business has been long established, has uniformly made profits, and there are definite, certain, and reasonable data for their ascertainment, and such profits reasonably must have been in the contemplation of the parties at the time of the contract, they may be recovered at least for a limited reasonable future time, even though they can not be computed with exact mathematical certainty.”).

        See Bldg. Materials Wholesale, Inc. v. Triad Drywall, LLC, 287 Ga. App. 772, 775-76 (2) (653 SE2d 115) (2007) (explaining that plaintiff was required to show lost profits with “reasonable certainty’); Mkt. Place Shopping Ctr., L.P. v. Basic Bus. Alternatives, Inc., 227 Ga. App. 419, 422 (2) (489 SE2d 162) (1997) (noting that, to recover lost profits, they must be established with “reasonable certainty’).

        See Kitchen v. Hart, 307 Ga. App. 145, 152 (2) (704 SE2d 452) (2010) (“Ordinarily, anticipated profits are too speculative to be recovered, but where the business has been established, has made profits and there are definite, certain and reasonable data for their ascertainment, and such profits were in the contemplation of the parties at the time of the contract, they may be recovered even though they can not be computed with exact mathematical certainty.” (punctuation omitted)); accord KAR Printing, Inc. v. Pierce, 276 Ga. App. 511, 511-12 (623 SE2d 704) (2005); see also Johnson County. Sch. Dist., 278 Ga. App. at 113 (explaining that the exception to the rule that expected profits of a commercial business are too uncertain and speculative to afford a basis for damages is when the “type of business and history of profits make the calculation of profits reasonably ascertainable”); Witty v. McNeal Agency, Inc., 239 Ga. App. 554, 562 (5) (521 SE2d 619) (1999) (recognizing the general rule that “when the owner of a business seeks to recover lost profits, that recovery canbe had only if the business has a proven track record of profitability’ (punctuation omitted)); Topvalco, Inc. v. Garner, 210 Ga. App. 358, 361 (3) (436 SE2d 25) (1993) (“A distinction is drawn between claims for profits derived from a new business venture and those derived from a going concern. The general rule is that evidence of expected profits from a new business is too speculative, uncertain, and remote to be considered, and does not meet the legal standard of reasonable certainty.” (punctuation omitted)); Bowdish v. Johns Creek Assocs., 200 Ga. App. 93, 96 (4) (406 SE2d 502) (1991) (finding that a business’s “proven ‘track record’ of profitability’ supported the trial court’s award of lost profits); Molly Pitcher Canning Co. v. Cent. of Georgia Ry. Co., 149 Ga. App. 5, 13 (4) (253 SE2d 392) (1979) (affirming trial court’s order excluding evidence of anticipated profits when there was no evidentiary basis to accurately compute such profits).

        Johnson County Sch. Dist., 278 Ga. App. at 112 (punctuation omitted); accord Molly Pitcher Canning Co., 149 Ga. App. at 10-11 (4).

       As noted supra, EZ Green’s third calculation method was based on its actual track record of sales with the major retailer, and the trial court ruled that EZ Green could use this method so long as it reduced any amount of lost profits by the expenses it would have incurred had those profits been realized.

        See supra, note 22.

        See Ware v. Multibank 2009-1 RES-ADC Venture, LLC, 327 Ga. App. 245, 251 (3) (758 SE2d 145) (2014) (declining to address a claim of error when appellant failed “to provide any cogent argument or citation of authority”); Blanton v. State, 324 Ga. App. 610, 615 (2) (a) n.10 (751 SE2d 431) (2013) (finding that appellant abandoned a claim by failing to cite any authority to support it); Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”).

        See supra, notes 20 & 21.

        Lejeune v. McLaughlin, 296 Ga. 281, 298 (2) (766 SE2d 803) (2014).

        Benefield v. Tominich, 308 Ga. App. 605, 613 (708 SE2d 563) (2011) (Blackwell, J., concurring dubitante) (punctuation omitted).

        See State v. Jackson, 287 Ga. 646, 658 (5) (697 SE2d 757) (2010) (“[The doctrine of] stare decisis is an important principle that promotes the rule of law . .. .”).


author: McMlLLIAN, Judge.

text:
    A14A2103.
    THORNTON v. THE STATE.
    (770 SE2d 279)
   McMlLLIAN, Judge.

Appellant Patti Thornton (hereinafter “appellant”) was charged with murder, conspiracy to commit murder, making false statements, and tampering with evidence; her co-defendant, Walter Booth, was charged with murder, conspiracy to commit murder, and making false statements. A jury found appellant not guilty of murder but guilty of the remaining charges, and the same jury acquitted Booth of murder and conspiracy to commit murder but found him guilty of making false statements. Appellant now appeals from the denial of her motion for new trial, arguing that the trial court should have vacated her conviction for conspiracy because the jury’s verdict finding her guilty is inconsistent with its verdict acquitting Booth, her only alleged co-conspirator; the evidence is insufficient to support her convictions for conspiracy and tampering with evidence; and her trial counsel was ineffective. As more fully set forth below, we find no basis for reversal and affirm.

Construed to support the jury’s verdict, the evidence shows that sometime in the spring or summer of 2007, appellant, who was married to the victim, Richard (“Shell”) Thornton III, began having an illicit relationship with her co-worker Booth, who was also married. Witnesses testified that Booth was protective and jealous of appellant at work, made statements that Shell mistreated appellant, and told co-workers that he would kill anyone who “mess[ed] with” appellant. On one occasion, appellant asked a co-worker to deliver a note to Booth that said “I love you,” and she sent Booth numerous e-mails throughout the summer and into the winter of 2007, expressing her love for Booth and her desire to be with him. Appellant also frequently wrote of her hatred for her husband, his mistreatment of her, and her desperate desire to have him “gone for good” from her life, primarily so that she could spend more time with Booth. She regularly entreated Booth to help her “out [of] this hell-hole,” said she could not take it anymore and wanted it over with, and in November 2007, reminded Booth that he “promised it would be done before Thanksgiving.”

Several weeks later, on the morning of December 14, 2007, a sheriff’s deputy who had been summoned to the house by appellant found Shell dead in the bedroom he shared with appellant. Georgia Bureau of Investigation (“GBI”) agents were primarily responsible for conducting the investigation into the murder, and appellant and other family members were interviewed on the day of the murder and on several subsequent occasions. Appellant told investigators that her daughter Kristin Eunice called her early that morning and asked appellant to bring Eunice her driver’s license at work. Appellant said she woke her two teenage sons, Cole Richard Shelley Thornton (“Cole”) and Seth Eunice (“Seth”), so that they could get ready for school and that she also spoke to Shell who asked her to make a bank deposit while she was out. Appellant told investigators she took the money to make the deposit and then left the house to take Eunice her driver’s license, make the bank deposit, and run some other errands. Appellant said she then stopped at her mother’s house, which was located nearby.

Appellant told investigators that she returned home and that when she walked in the door, she immediately noticed a bowl of change had been knocked over and that several guns were lying on the floor. She told police that she started yelling for Shell, but then she noticed that their bedroom door was open, which she said had been closed when she left that morning. Appellant said she became frightened someone was in the house, so she left and went back to her mother’s house. She told her mother to call police, but then decided to drive to the home of a sheriff’s deputy who lived nearby because she thought he would get to her house faster. The deputy returned with her to the house, where he found Shell lying in the bedroom with several gunshot wounds to the head, at least one of which could have been fatal by itself.

Seth and Cole also testified about the events the morning of December 14, 2007. Cole testified that his mother woke him up early and told him that she needed to take Eunice’s license to her at work, so he got up and showered and then woke up his brother. Seth and Cole testified they left the house between 7:10 and 7:30 that morning and exited through a door in the carport, which was typically kept unlocked and which they did not lock that morning. They said that when they left, their parents’ bedroom door was closed, and they did not see or speak to Shell, whom they assumed was still sleeping. Seth and Cole said that everything appeared to be in its usual location when they left, including the guns and the change container.

Seth and Cole testified that they encountered their grandfather Julian “Dwayne” Thornton about 200 to 300 yards from the house and that they briefly talked to him and then left to go to school. Dwayne testified that after talking to the boys, he took some pipe off a trailer, which he said took about 15 to 30 minutes to accomplish.

Dwayne further testified that after he finished his project, he drove to appellant’s house to talk to her. He said he knocked on the door but no one answered, so he pushed the door open and went inside. He testified that he noticed a pile of change on the floor and guns lying on a quilt and that the bedroom door was open, but he could not see if anyone was in the bed, which he said appeared messy. Dwayne said he called out several times but did not get an answer, so he closed the door and left the house. Dwayne also testified that he did not hear any gunshots while he was working in the area, but said that he doubted he would have heard them in any event.

A GBI crime scene specialist testified that there were no signs of forced entry into the home and that with the exception of the carport door, all the doors and windows were locked. Investigators found a computer, which had the monitor still turned on, in the back of Shell’s truck while they were searching the premises the morning of the crime. The computer was analyzed, and appellant’s e-mails to Booth were discovered. Appellant was interviewed again and admitted that she and Booth e-mailed each other, but she said they only sent each other jokes. She also denied that Booth and she had a romantic relationship.

Booth was also interviewed, and he also denied having a romantic relationship with appellant and denied being at her house on December 14, 2007. He told officers that he was supposed to go to work that day but he decided not to go. Instead, he said he stopped by a convenience store to buy coffee and then went to another store and played video poker.

However, Booth’s explanation of his whereabouts did not check out, and police also discovered that he and appellant had made numerous telephone calls to each other the morning of Shell’s death. Booth told police that he had called appellant to see if she was going to work that day, but could not explain why there were so many calls between them. Booth also told the investigators that he never talked to appellant on the phone unless it was about work and that he had never communicated with her by computer over the Internet.

Investigators also learned that a neighbor saw a big truck with “dual” wheels drive slowly down the road toward appellant’s house in the early morning hours on the day of the murder. Another neighbor told investigators that he had driven by the house that morning and that he had noticed fresh tire tracks from a big truck in the area. Several of Booth’s co-workers also testified that they had seen Booth with a handgun in the months preceding the crime, and one witness testified that a photograph of a gun police showed him looked similar to the one Booth had in his possession two to three weeks before Shell was killed.

Booth’s house was searched during the course of the investigation, and police seized two bottles of Trazodone, which is a prescription anti-depressant that also is sometimes used as a sleep aid, one of which was found in Booth’s bedroom. Shell’s blood was tested for a variety of substances, and one of those tests revealed that Shell had a therapeutic amount of Trazodone in his blood at the time of his death. Shell’s father testified that appellant told him that Shell had taken one of his mother’s sleeping pills the night before he was killed, but he said he could not identify the name of the sleeping pill that Shell supposedly took that night, and Shell’s physician testified that he had never prescribed Trazodone to Shell.

Other evidence will be set out below as necessary to address appellant’s specific contentions on appeal.

1. In her first enumeration of error, appellant contends that the trial court should have vacated her conviction for conspiracy because the same jury acquitted her only alleged co-conspirator and therefore she has in essence been convicted of conspiring with herself, which is an impossibility under Georgia law. We disagree.

OCGA § 16-4-8 provides: “A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy.” In Smith v. State, 250 Ga. 264 (297 SE2d 273) (1982), our Supreme Court recognized that in a joint trial of two alleged conspirators, a verdict of acquittal for one conspirator and conviction of the other “are inconsistent because they reach different results regarding the existence of a conspiracy between these two parties based on exactly the same evidence.” Id. at 264. See also Hubbard v. State, 274 Ga.App. 639 (618 SE2d 690) (2005).

But the inquiry does not end here. Rather, the key question is whether this inconsistency in the verdicts required appellant to be acquitted of the conspiracy charge. This question has been answered in Milam v. State, 255 Ga. 560 (341 SE2d 216) (1986), which was rendered after Smith. In Milam, our Supreme Court abolished the inconsistent verdict rule in criminal cases and held that a defendant may not attack a conviction because it is inconsistent with the jury’s verdict of acquittal on another charge. In so doing, the Court adopted the rationale enunciated by the United States Supreme Court in United States v. Powell, 469 U.S. 57 (105 SCt 471, 83 LE2d 461) (1984) and Dunn v. United States, 284 U.S. 390, 393-394 (52 SCt 189, 76 LE 356) (1932). See also Standefer v. United States, 447 U.S. 10 (100 SCt 1999, 64 LE2d 689) (1980) (rejecting argument that a defendant could not be convicted of aiding and abetting a principal when the alleged actual perpetrator of offense had previously been acquitted of the underlying charge).

As Powell explained, “where truly inconsistent verdicts have been reached, the most that can be said is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt.” Powell, 469 U.S. at 64-65 (quoting Dunn, 284 U.S. at 393) (punctuation omitted). The Court went on to give several reasons why jury verdicts should be insulated from attacks based on inconsistency, including that seemingly irreconcilable verdicts should not necessarily be interpreted as a windfall to the government since it is impossible to know whether the verdict was the result of mistake, compromise, or lenity and the government’s general inability to seek correction or review of the verdict. Id. at 65.

Our appellate courts have consistently applied Milam’s inconsistent verdict rule and adopted the federal court’s rationale, explaining that

appellate courts cannot know and should not speculate why a jury acquitted on one offense and convicted on another offense. The reason could be an error by the jury in its consideration or it could be mistake, compromise, or lenity. Stated another way, it is imprudent and unworkable to allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury’s deliberations that the courts generally will not undertake.

(Citations and punctuation omitted.) Turner v. State, 283 Ga. 17, 20 (2) (655 SE2d 589) (2008). E.g., Dumas v. State, 266 Ga. 797, 799 (2) (471 SE2d 508) (1996); Smashum v. State, 261 Ga. 248, 249 (2) (403 SE2d 797) (1991); Artis v. State, 299 Ga. App. 287, 293 (5) (682 SE2d 375) (2009).

Although the Georgia appellate courts have not applied the inconsistent verdict rule in this context — where in a joint trial, only one conspirator is convicted — the rationale underlying Milam, Powell, Dunn, and other cases in which we have refused to review or reverse inconsistent or irreconcilable verdicts applies equally in this case. Accordingly, the trial court did not err by refusing to vacate appellant’s conviction for conspiracy to commit murder on the basis that such verdict was inconsistent or irreconcilable with the acquittal of appellant’s alleged co-conspirator. Accord United States v. Andrews, 850 F2d 1557, 1561 (11th Cir. 1988) (overruling prior precedent to uphold guilty verdict against a lone conspirator); United States v. Church, 955 F2d 688, 695 (2) (B) (1) (11th Cir. 1992) (following Andrews and holding that “[inconsistent verdicts on a conspiracy count... do not defeat the propriety of a defendant’s conviction, even if every defendant but one is acquitted”); United States v. Valles-Valencia, 823 F2d 381 (9th Cir. 1987) (finding irrelevant “that the conflict in this case involves charges against different defendants, rather than different charges against the same defendant”); United States v. Hughes Aircraft Co., 20 F3d 974, 978 (9th Cir. 1994) (following Valles-Valencia and finding that “the conviction of one co-conspirator is valid even when all the other co-conspirators are acquitted”); United States v. Collins, 412 F3d 515 (4th Cir. 2005) (declining to reverse appellant’s conviction because his co-conspirator was acquitted).

2. Appellant also challenges the sufficiency of the evidence to support her conviction for conspiracy and, in a separate enumeration, contends that the trial court should have granted her motion for directed verdict on that charge. We consider these contentions together since they invoke the same standard of review. E.g., Hargrove v. State, 289 Ga. App. 363 (657 SE2d 282) (2008) (standard of review of denial of motion for directed verdict is the same as that used to assess the sufficiency of the evidence); Sexton v. State, 269 Ga. App. 709 (605 SE2d 103) (2004). Thus, in deciding this issue, we view the evidence in the light most favorable to the jury’s verdict. The accused is no longer entitled to a presumption of innocence, and we do not weigh the evidence or determine witness credibility but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Id. at 709-710.

The State must show both an agreement and an act in furtherance of the agreement to prove the existence of a conspiracy. McCright v. State, 176 Ga. App. 486 (336 SE2d 361) (1985); OCGA § 16-4-8. However, it -is not necessary for the State to prove an express agreement; rather “[t]he state need only prove that two or more persons tacitly came to a mutual understanding to accomplish or to pursue a criminal objective.” Duffy v. State, 262 Ga. 249, 250 (1) (416 SE2d 734) (1992). Further “[t]his tacit understanding maybe proved by circumstantial evidence, inferred from the nature of the acts done, the relation of the parties, the interest of the alleged conspirators, and other circumstances.” (Citation and punctuation omitted.) Aguilera v. State, 293 Ga. App. 523, 526 (2) (667 SE2d 378) (2008).

Among other things, the evidence in this case shows that appellant sent Booth numerous e-mails over the course of several months entreating him to help her out of what she described as the “hell” she was living in, that she made specific references to shooting and killing the victim, and that, just several weeks before the victim was shot, she reminded Booth of his promise that “it” would be done by a certain date. Additionally, she sent Booth another e-mail just days before the murder, urging Booth to “[r]emember I have to get rid of this computer ’cause everything can be pulled off it... and that would not be good,” and a computer from the house appeared to have been hastily thrown in the back of Shell’s truck on the day of the murder.

Additionally, the evidence showed that Booth had easy access to the sedative-like drug Trazodone and that Shell had a therapeutic amount of Trazodone in his blood when he died, although his doctor testified he never prescribed Shell that medication. Appellant made sure her sons were out of the house early that morning and then she left the house and went to several places where her presence could be verified before returning to the house where Shell had been shot. Booth and appellant exchanged numerous, unexplained telephone calls the morning of the murder, and both Booth and appellant lied to police about the nature of their relationship. “Circumstances supporting an inference of conspiracy include presence, companionship and conduct before and after the commission of the alleged offenses. .. .” (Citation and punctuation omitted.) Aguilera, 293 Ga. App. at 526 (2). This and other evidence presented at trial was sufficient to prove beyond a reasonable doubt that appellant conspired to murder her husband. Duffy, 262 Ga. at 250 (1); Sexton, 269 Ga. App. at 711 (1). Accordingly, appellant is not entitled to reversal of her conviction on this basis.

Decided March 16, 2015

Jonathan P. Lockwood, Kevin R. Gough, for appellant.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney, for appellee.

3. Thornton also challenges the sufficiency of the evidence to convict her of tampering with evidence and contends the trial court should have granted her motion for directed verdict on that charge.

Under OCGA § 16-10-94 (a), “[a] person commits the offense of tampering with evidence when, with the intent to prevent the apprehension ... of any person or to obstruct the prosecution ... of any person, he knowingly destroys, alters, conceals, or disguises physical evidence....” Shell’s father testified that one of appellant’s sons told him that after investigators had allowed them to return to the house, appellant found a bullet shell casing on the floor in the bedroom where Shell had been shot and that when her son suggested she might need to keep it, she supposedly made remarks indicating she needed to dispose of the casing because it had her fingerprints on it. Several weeks after the murder, investigators conducted a trash pull at the residence and found the spent casing inside a soft drink can that had been cut in half. This evidence belies appellant’s contention that she did not realize the importance of the evidence, and appellant’s conviction of tampering with evidence is also affirmed. White v. State, 287 Ga. 713 (699 SE2d 291) (2010).

4. Appellant also contends that her trial counsel was ineffective because he failed to challenge her conviction for conspiracy on the basis that it was inconsistent with the jury’s verdict acquitting her co-conspirator. However, for the reasons set forth in Division 1, such a challenge would have been unavailing, and the failure to make such a futile or meritless motion will not constitute ineffective assistance of counsel. E.g., Hargrove v. State, 291 Ga. 879, 883 (2) (b) (734 SE2d 34) (2012); Jimmerson v. State, 289 Ga. 364, 369 (2) (d) (711 SE2d 660) (2011).

Judgment affirmed.

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

       Although generally we do not refer to the parties as the appellant or the appellee or to the parties or witnesses by their first names, we find it clearer to do so in this case when many of the persons involved share the same surname.

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

       During this time, Booth and appellant worked together driving dump trucks for a father-son trucking business.

       Cole was appellant’s biological son with Shell, and Seth was her biological son with her former husband, who had been deceased for a number of years.

       Appellant’s mother testified and gave a similar version of events.

       The record reflects that Dwayne Thornton is appellant’s father.

       Appellant told investigators that Shell put the computer in his truck the evening before and that he intended to take the computer to be repaired.

       Testimony was presented that Booth told his boss and co-workers that he had a doctor’s appointment that day and would not be at work.

       The witness said that because it was still dark outside, he could not be sure if the truck he saw was a dump truck.

       Booth’s wife testified that the medication was legally prescribed to relatives who lived with them.

       We note that although Smith and Hubbard set out this general rule, in both of those cases the verdicts at issue were rendered by different juries at separate trials and therefore the general rule was not applied.


author: MCMILLIAN, Judge.

text:
    A14A2150.
    STEMBRIDGE v. THE STATE.
    (770 SE2d 285)
   MCMILLIAN, Judge.

Stacey Stembridge appeals the trial court’s order denying his “Motion in Autrefois Convict/Plea in Bar” under OCGA § 16-1-8 (c) against a charge of trafficking in cocaine. In reviewing the grant or denial of such a motion/plea “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, as here, we review de novo the trial court’s application of the law to the undisputed facts.” (Citation and punctuation omitted.) State v. Jeffries, 298 Ga. App. 141, 142 (679 SE2d 368) (2009). And after applying a de novo review, we affirm.

On November 13, 2009, a Fulton County grand jury indicted Stembridge on one count of trafficking in cocaine under OCGA § 16-13-31 (Count 1), one count of possession of marijuana with intent to distribute under OCGA § 16-13-30 (Count 2), and one count of fleeing and attempting to elude, OCGA § 40-6-395 (Count 3), in connection with events occurring on November 6,2009 in Fulton County (the “state indictment”). Count 1 of the state indictment charged that on that date, Stembridge unlawfully and knowingly possessed a mixture with a purity of at least 10 percent of cocaine, with a weight of 400 grams or more. David Kevin Hines was named as a co-defendant in Counts 1 and 2 of that indictment.

Shortly thereafter, on December 1, 2009, the United States Government (the “Government”) filed a separate federal indictment, charging that “between on or about November 1,2006 and on or about November 4, 2009,” Stembridge and Michael J. Webb engaged in a conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 USC §§ 841 (a) (1), 841 (b) (1) (A) (ii), 841 (b) (1) (A) (iii), and 846 (the “federal indictment”). The federal indictment alleged that the offense involved five kilograms or more of a mixture and substance containing a detectible amount of cocaine and more than fifty grams or more of a mixture and substance containing crack cocaine.

In support of that indictment, the Government represented, and Stembridge acknowledged, that it could present evidence showing that on or about November 3, 2009, Stembridge sold one-half of a kilogram of cocaine powder to Webb for $15,000 and Webb subsequently transported the cocaine to Panama City, Florida. And on or about November 4, 2009, law enforcement officials executed a search warrant at Webb’s Panama City residence where they discovered, among other contraband, the cocaine purchased from Stembridge. The Government also represented it could present evidence that between on or about November 1, 2006 and on or about November 4, 2009, Webb and Stembridge had conspired together and with others to distribute at least two but not more than three and one-half kilograms of cocaine powder in the Northern District of Florida.

At the motion hearing in this case, the parties stipulated into evidence several reports prepared by investigators from the United States Drug Enforcement Administration in connection with Webb’s arrest. Those reports indicate that after he was arrested on November 4, 2009, Webb admitted that he owned the cocaine found at his residence, that he purchased it the day before in Atlanta from Stembridge, and that he drove it into Florida where he was in the process of manufacturing crack cocaine. He told the federal investigators that he had made approximately thirty trips to Atlanta to purchase cocaine from Stembridge over the preceding three years. The federal indictment was based on these transactions involving Webb and Stembridge.

The reports also reflect that Webb agreed to participate with law enforcement in setting up a controlled buy of cocaine from Stem-bridge in Atlanta on November 6, 2009. When Stembridge and Hines arrived at the arranged location for the buy, law enforcement officers used their vehicles to block Stembridge’s car. Although Stembridge attempted to flee in his car, striking two police cars in the effort, and Hines refused to exit the car, they both were arrested at the scene. A subsequent search of Stembridge’s car resulted in the recovery of what appeared to be “a compressed brick of suspected cocaine wrapped in plastic,” among other items. A detective from the Atlanta Police Department took custody of this “brick” for processing and safekeeping, and the GBI later identified it as 908.18 grams of cocaine. The state indictment was based on this controlled buy.

On April 21, 2010, Stembridge pled guilty to a lesser included offense to the federal charge, namely conspiracy to distribute and possess with intent to distribute more than 500 grams of a mixture and substance containing a detectible amount of cocaine in violation of 21 USC §§ 841 (a) (1) and 846.

More than three years later, on August 30, 2013, Stembridge filed his motion in autrefois convict, seeking to interpose the bar of OCGA § 16-1-8 (c) to prevent his prosecution on the Georgia trafficking charge. Stembridge asserts that the trial court erred in denying this motion.

Under the dual sovereignty doctrine, where a single act violates the law of two sovereigns (e.g., the United States and a state), an accused may be prosecuted and punished by each sovereign without violating double jeopardy. See Heath v. Alabama, 474 U.S. 82, 88 (106 SCt 433, 88 LE2d 387) (1985); United States v. Lanza, 260 U.S. 377, 382 (43 SCt 141, 67 LE 314) (1922). Under this doctrine, therefore, even if Stembridge’s state and federal prosecutions had arisen out of a single act, Georgia would not be barred from prosecuting Stem-bridge simply because the federal government had already done so. Although Georgia still adheres to the concept of dual sovereignty, it, like a number of other states, places a statutory limitation on the doctrine. See Sullivan v. State, 279 Ga. 893, 900 (3) (622 SE2d 823) (2005); Palmer v. State, 315 Ga. App. 396, 397 (727 SE2d 189) (2012). That limitation, codified at OCGA § 16-1-8 (c), provides:

A prosecution is barred if the accused was formerly prosecuted in a district court of the United States for a crime which is within the concurrent jurisdiction of this state if such former prosecution resulted in either a conviction or an acquittal and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution or unless the crime was not consummated when the former trial began.

(Emphasis supplied.) We conclude that the prosecutions involved in this case fall within one of the exceptions set forth in OCGA § 16-1-8 (c) because each prosecution requires proof of a fact that the other does not.

Stembridge pled guilty to a conspiracy to violate 21 USC § 841 (a) (l) in violation of 21 USC § 846. That section provides that “[a]ny person who attempts or conspires to commit any offense defined in this title shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” “To sustain a conviction for conspiracy [under § 846], the government must prove beyond a reasonable doubt that a conspiracy existed, that the defendant knew of it, and that the defendant, with knowledge, voluntarily joined the conspiracy.” United States v. Brazel, 102 F3d 1120, 1131 (II) (A) (1) (11th Cir. 1997). However, the Government “need not prove the commission of any overt acts in furtherance of the conspiracy.” United States v. Shabani, 513 U.S. 10, 15 (115 SCt 382, 130 LE2d 225) (1994). Rather, “[t]he essence of conspiracy is the agreement and not the commission of the substantive offense.” United States v. Gore, 154 F3d 34, 40 (II) (A) (2d Cir. 1998). See also United States v. Boldin, 818 F2d 771, 775, n. 3 (11th Cir. 1987). Therefore, “[a]s a matter of law, the crime of conspiracy must involve the agreement of two or more persons to commit a criminal act or acts since the act of agreeing is a group act, unless at least two people commit it, no one does.” (Punctuation omitted.) Gore, 154 F3d at 40.

In contrast, a trafficking charge under OCGA § 16-13-31 (a) (l), does not require proof of an agreement between two or more people to commit a criminal act; indeed, it is a crime that may be committed by one person acting alone. However, unlike the federal conspiracy statute, the Georgia trafficking statute requires proof of a criminal act — in this case, possession of cocaine. Accordingly, because each prosecution requires proof of a fact that the other does not, the State’s prosecution of the trafficking charge against Stembridge does not violateOCGA § 16-l-8(c), and we affirm the trial court’s decision. See Moser v. State, 246 Ga. App. 268, 269-270 (2) and n. 8 (538 SE2d 904) (2000) (prior federal prosecution under 21 USC §§ 841 (a) (1) and 846 for possession of methamphetamine did not bar state prosecution for, inter alia, trafficking in more than 28 ounces of methamphetamine arising out of transaction(s) occurring during the conspiracy period); Brown v. State, 181 Ga. App. 795, 796-797 (354 SE2d 3) (1987) (prior federal conviction for conspiracy to import a controlled substance (cocaine) into a customs territory of the United States in violation of 21 USC § 963 did not prevent Georgia’s prosecution of trafficking in cocaine charge).

Decided March 16, 2015.

Kevin M. Farmer, James C. Bonner, Jr., Jimmonique R. S. Rodgers, for appellant.

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

However, Stembridge raises a new argument in his appellate reply brief, asserting that the State’s prosecution is nevertheless barred under OCGA § 16-4-8.1, which provides that “[a] person may not be convicted of both conspiracy to commit a crime and the completed crime.” Pretermitting whether this statute would even apply to a federal conviction for § 846 conspiracy and a state conviction under OCGA § 16-13-31, we cannot consider this argument because Stembridge failed to raise it in the trial court. It is well settled that

issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.

(Citation and punctuation omitted.) Williams v. State, 326 Ga. App. 665, 670 (4) (757 SE2d 267) (2014).

Judgment affirmed.

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

       Although Stembridge acknowledged the Government could present such evidence, he also understood that he could present to the court his own version of the facts and could dispute particular allegations against him.

       Stembridge admitted at his plea hearing that he knew the cocaine he sold to Webb during the stated time period was, in fact, destined for sale in the Northern District of Florida.

       Therefore, we need not address the issues of whether Georgia and the Government have concurrent jurisdiction or whether the two indictments arose out of the same conduct. Compare Sullivan, 279 Ga. at 894 (threshold question under OCGA § 16-1-8 (c) is whether the prior federal prosecution was within the concurrent jurisdiction of the state).

       That statute makes it illegal “for any person knowingly or intentionally... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 USC § 841 (a) (1).

       OCGA § 16-13-31 (a) (1) provides:
      Any person who sells, manufactures, delivers, or brings into this state or who is in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in cocaine and, upon conviction thereof, shall he punished...[,]
      and the term of imprisonment is determined by the quantity involved over 28 grams. See OCGA § 16-13-31 (a) (1) (A)-(C).

       Because Congress enacted 21 USC §§ 846 and 963 within the same public law and utilized identical language when crafting these parallel conspiracy provisions, the government must prove the same essential elements to sustain a conviction under either statute. See United States v. Montgomery, 150 F3d 983, 998 and n. 4 (9th Cir.1998).

        United States v. Vasquez-Uribe, 426 Fed. Appx. 131, 135, n. 3 (3d Cir. 2011).

       Stembridge asserts that the state prosecution should be barred because the language of the federal indictment was broad enough to encompass the events of November 6, 2009, on which the state indictment was based, in that it alleged that conspiracy ended “on or about” November 4, 2009. But as the Moser case demonstrates, even if the November 6, 2009 transaction somehow fell within the conspiracy period, a state trafficking prosecution is not barred by a prior federal prosecution for conspiracy, because each requires proof of a fact the other does not.