text:
    A10A1877.
    DAVIS v. THE STATE.
    (709 SE2d 343)
   PHIPPS, Presiding Judge.

Antonio Davis appeals the denial of his motion to dismiss his indictment for violation of his constitutional right to a speedy trial. Because the trial court clearly erred in reaching several material factual findings, we vacate the court’s judgment and remand the case for further proceedings.

Davis was arrested on November 21, 2006 in Fulton County for child molestation. On May 18, 2007, he was indicted for child molestation and sexual battery. On November 16, 2009, he moved to dismiss the indictment, asserting that his right to a speedy trial under the United States Constitution and Georgia Constitution had been denied.

A hearing on Davis’s motion to dismiss was held on February 25, 2010, at which three prosecutors who had been involved in his case testified that they had not intentionally delayed taking the case to trial and had not intended to hamper Davis’s defense. The initial prosecutor further testified that she had performed some preliminary work on the case and had appeared at an October 2007 plea hearing, at which time Davis was in a bond forfeiture. The second prosecutor testified that in June 2008 he made a single court appearance on behalf of the state in Davis’s case. He also testified that Davis’s file contained the following note, dated May 5, 2008: “P&A, defendant FTA, bench warrant, bond forfeiture.” He did not know who entered that note in the file.

The third prosecutor testified that she was assigned to Davis’s case in the spring of 2009, and that in September 2009, a plea hearing and arraignment were held. She testified that, after Davis filed his motion to dismiss on speedy trial grounds, she became aware that, in February 2008, he had been arrested on another charge in Fulton County and that, in March 2008, he had pled guilty to this charge and been sentenced to two years in prison. Davis pled guilty and was convicted in that other case under the name “Antoniel Davis.” The state showed the prosecutor a copy of the “GCIC” report of Davis’s criminal history; she testified that the report reflected the name “Antoniel Davis” and had enabled her to determine that, while the instant case was pending, Davis also had been involved in the other criminal case in Fulton County.

The state tendered into evidence at the speedy trial hearing a copy of Davis’s other Fulton County conviction. The record does not show that any other documentary evidence was admitted. The court denied Davis’s motion to dismiss on March 5, 2010.

A speedy trial is guaranteed an accused by the Sixth Amendment to the United States Constitution and also Art. I, Sec. I, Par. XI (a) of the Georgia Constitution. The right to a speedy trial attaches at the time of arrest or when formal charges are brought, whichever is earlier. In Barker v. Wingo,

the Supreme Court of the United States identified four factors to be considered by a court in determining whether an accused’s constitutional right to a speedy trial had been violated[:] (a) the length of the delay, (b) the reason for the delay, (c) the defendant’s assertion of his right, and (d) the prejudice to the defendant. The Supreme Court further stated that it regarded none of the factors as either a necessary or sufficient condition to a finding of a deprivation of the right of speedy trial but rather that the factors should be considered together in a balancing test of the conduct of the prosecution and the defendant.

In denying Davis’s motion to dismiss, the trial court set forth findings regarding the Barker factors and, in weighing the factors, determined that Davis’s right to a speedy trial had not been violated. We review this ruling for abuse of discretion. However, “where . . . the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished.” Thus,

[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.

1. Threshold Inquiry.

In denying the motion to dismiss, the trial court correctly determined that the length of the pretrial delay (over three years from his arrest on November 21, 2006 to the denial of his motion to dismiss on March 5, 2010) was presumptively prejudicial, triggering an analysis of the remaining Barker factors.

2. The Four Barker Factors.

(a) Length of the Delay. The trial court properly weighed the over three-year delay against the state.

(b) Reason for the Delay. The court found that the case “moved through the court system with regularity and with customary speed and was delayed due to [Davis’s] bench-warrant status and use of an alias in either this case or another unrelated criminal case within which he entered a guilty plea while this case has been pending.” The court further took “judicial notice of the heavy court dockets and recognize[d] it, in part, contributed to the delay of the prosecution of the case.” It concluded that the delay was to be weighed “only benignly” against the state.

Generally, delay attributed to the state’s negligence, rather than a deliberate act, is weighed as a “relatively benign” factor against the state. And Davis has not pointed to any evidence showing that the state deliberately attempted to delay the trial.

Nevertheless, the court erred in its factual findings regarding Davis’s role in the delay. The evidence presented at the speedy trial hearing did not support the court’s findings that the delay in prosecuting Davis’s case was caused either by his “bench-warrant status” (the duration of which was not established) or his use of another name. None of the prosecutors testified that the “bench-warrant status” or Davis’s involvement in another Fulton County case under the name “Antoniel Davis” hindered their ability to prosecute the case. The trial court also did not elaborate on how these facts contributed to the delay. And the state does not, in its appellate brief, offer any argument or point to any evidence to show why these circumstances delayed Davis’s case in any meaningful respect; rather, the state merely cites to the trial court’s order as evidence that these circumstances delayed the case. Accordingly, in weighing this factor, the trial court made factual findings that were not supported by the evidence.

(c) Davis’s Assertion of His Right to a Speedy Trial. The court found that Davis “never” asserted his right to a speedy trial but instead waited more than three years “merely to ask for the windfall dismissal of his case.” Thus, the court weighed this factor heavily against Davis.

The finding that Davis never asserted his right to a speedy trial was incorrect. Although he did not make a statutory speedy trial demand, he did assert his constitutional right to a speedy trial in his motion to dismiss the indictment. Nevertheless, Davis did not file this motion until nearly three years after his arrest. In Brown v. State, the Supreme Court of Georgia held that a delay of slightly more than three years should normally be weighed heavily against the defendant.

The trial court, however, also found that Davis had “never notified his attorney of this pending criminal matter or asked that the cases be consolidated for resolution or disposition.” No evidence was presented at the speedy trial hearing to support those factual findings. Accordingly, in weighing this factor, the trial court made factual findings that were not supported by the evidence.

(d) Prejudice. In evaluating the factor of prejudice to the defendant, “we consider three interests which the speedy trial right is designed to protect: preventing oppressive pretrial incarceration, minimizing anxiety and concern of the defendant, and, most importantly, limiting the possibility that the defense will be impaired.” The trial court found that Davis had failed to establish oppressive pretrial incarceration, in that some of his time spent incarcerated had been in serving a sentence on his conviction in the other case. It found that Davis had “failed to show any anxiety or concern over the pendency of this case as shown by [his] failure to request a speedy resolution of this case so that any time served in this case may have run concurrent with time served in the [other] case.” And it found that Davis had failed to present any specific evidence that his ability to defend himself had been impaired, noting that it was not persuaded by Davis’s allegations in that regard, finding that the fact that the alleged victim (a child) would be older might benefit Davis, and finding that, due to the alleged location of the crime (inside an apartment), “there are no eye-witnesses to be found in this case.” The trial court weighed the prejudice factor heavily against Davis.

Many of these factual findings lacked evidentiary support. No evidence was presented at the speedy trial hearing to support Davis’s allegations of prejudice or to support the state’s rebuttal of those allegations. Simply put, the hearing evidence did not address this issue, other than to demonstrate that Davis, for a period of the time at issue, had been incarcerated for another crime, and that Davis had not sought a speedy trial until he filed his motion to dismiss the indictment. Accordingly, in weighing this factor, the trial court made factual findings that were not supported by the evidence.

(e) Balancing the Four Factors.

Here, the trial court clearly erred in reaching certain factual findings material to three of the four Barker factors — the cause of the delay, the assertion of the right to speedy trial, and prejudice. Thus, the deference we owe to the trial court’s ultimate ruling is diminished. And we cannot conclude that, putting aside those factual errors, the trial court would have still been required to weigh those factors in the manner in which it did, so as to determine that Davis’s right to a speedy trial had not been violated. “If all four [Barker] factors point in one direction, the result of weighing them together will be clear, but otherwise, under the circumstances of a particular case, any one factor may be weighty enough to tip the balance.” And “[i]t is not the job of the appellate court... to weigh the Barker factors in the first instance.”

Decided March 28, 2011.

Alixe E. Steinmetz, for appellant.

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

Accordingly, we vacate the trial court’s judgment and remand the case for the trial court to exercise its discretion using properly-supported factual findings.

Judgment vacated and case remanded.

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

       Davis has asserted to both the trial court and this court that his legal first name is not “Antonio” but “Antoniel.” He was indicted under the name “Antonio Davis,” however, and the order from which he appeals reflects that name.

       See State v. Pickett, 288 Ga. 674, 678 (2) (d) (706 SE2d 561) (2011).

        Boseman v. State, 263 Ga. 730, 731 (1) (438 SE2d 626) (1994).

       407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972).

        State v. Lattimore, 287 Ga. 505-506 (696 SE2d 613) (2010) (citations omitted).

       Id. at 506.

        Williams v. State, 277 Ga. 598, 601 (1) (e) (592 SE2d 848) (2004).

        Pickett, supra at 679 (2) (d).

       See Ruffin v. State, 284 Ga. 52, 55 (2) (a) (663 SE2d 189) (2008) (period of delay considered ended when trial court denied motion to dismiss indictment; delay of over two years was presumptively prejudicial).

       See id. at 59 (2) (b) (i).

       See generally State v. Johnson, 274 Ga. 511, 513 (2) (555 SE2d 710) (2001) (overcrowded docket weighs less heavily against the state than intentional delay).

        Jackson v. State, 272 Ga. 782, 784 (534 SE2d 796) (2000). See generally Ruffin, supra at 61 (2) (b) (ii) (where no reason appears for a delay, we must treat the delay as caused by the negligence of the state in bringing the case to trial).

       See State v. Giddens, 280 Ga. App. 586, 588 (634 SE2d 526) (2006). Compare Hayes v. State, 298 Ga. App. 338, 343 (2) (b) (680 SE2d 182) (2009) (state’s decision to dead-docket, rather than dismiss, case was not a “benign” reason for delay, and thus this factor should have been weighed heavily against the state).

       See Hayes, supra at 345-346 (2) (c) (filing a statutory speedy trial demand is not a prerequisite for a claim of a constitutional speedy trial violation, which may be made in a motion to dismiss the indictment).

       287 Ga. 892 (700 SE2d 407) (2010).

       See id. at 895 (1) (c).

       The record in this case shows that, beginning in September 2008, Davis wrote a series of pro se letters to the trial judge and clerk of court, asking about the status of this case; one such letter noted that he would soon be eligible for parole in his other case. Although these letters were in the record, they were not introduced into evidence at his speedy trial hearing. See State v. Porter, 288 Ga. 524, 529 (2) (c) (4) (705 SE2d 636) (2011) (defendant’s pro se letter to court, which was not offered into evidence at the hearing on a motion to dismiss on speedy trial grounds, could not be used as support of the trial court’s findings in deciding motion).

        Lattimore, supra at 506-507 (citation omitted).

       See id.; Williams, supra.

       See Pickett, supra. See generally Porter, supra (degree to which prejudice could be presumed, and weight given to presumptive prejudice, depended in part on weight given by court to other Barker factors); Ruffin, supra at 60-61 (2) (b) (ii) (delay caused by state’s negligence, while generally weighed benignly against state, may he given different weight depending on circumstances); Gray v. State, 303 Ga. App. 97, 101-102 (d) (iii) (692 SE2d 716) (2010) (discussing dependence of prejudice analysis upon weight given to other Barker factors).

        Porter, supra at 532 (2) (d).

        Pickett, supra at 679-680 (2) (d).

       Id.


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A10A2127.
    HEWITT ASSOCIATES, LLC v. ROLLINS, INC.
    (708 SE2d 697)
   MILLER, Presiding Judge.

A jury found in favor of Rollins, Inc. on its claims for breach of contract and attorney fees against Hewitt Associates, LLC (“Hewitt”), its former employee benefits plan administrator. The jury also ruled against Hewitt on its quantum meruit counterclaim. Following the trial court’s entry of judgment on the verdict and denial of Hewitt’s motions for new trial and judgment notwithstanding the verdict, Hewitt appeals, complaining of a variety of errors below. Specifically, Hewitt contends that Rollins’s contract claim was time-barred, that the trial court should have given the jury a special verdict form, that Rollins was not entitled to attorney fees, that the trial court charged the jury to use an incorrect percentage in calculating prejudgment interest, and that the jury verdict was inconsistent. Because these claims of error lack merit, we affirm.

Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it, as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict.

(Citation and punctuation omitted.) Harris v. Tutt, 306 Ga. App. 377, 378 (1) (702 SE2d 707) (2010). So viewed, the record shows that, from 1995 to late 2003, Northern Trust Retirement Consulting, LLC (“Northern Trust”) served as the administrator of Rollins’s employee retirement plans. In 2001, Rollins and Northern Trust signed a multi-year contract to govern their relationship (“the 2001 Agreement”). The 2001 Agreement provided, in relevant part, that Rollins would pay Northern Trust a monthly fee for its services. Northern Trust, in turn, would apply toward Rollins’s fee any “fund fees” that Northern Trust received from investment funds for its administrative services. The 2001 Agreement also contained a limitations clause providing that any claims arising out of the agreement had to be brought within 16 months “from the date on which the cause of action first arose.”

In 2003, Hewitt purchased Northern Trust’s assets, assumed the 2001 agreement, and took over as administrator of Rollins’s plan. Hewitt used a software platform for delivering its services that was incompatible with the platform Northern Trust had used. Hewitt offered to transition Rollins to its platform at no charge in hopes that Rollins would sign a multi-year contract extension. But the parties could not agree on the terms of the extension, and Rollins never signed the proposed agreement. Nevertheless, Hewitt continued to act as Rollins’s plan administrator until 2006, when Rollins terminated Hewitt’s services. It is undisputed that Hewitt did not credit Rollins for the fund fees it received while acting as Rollins’s plan administrator.

In August 2006, Rollins sued Hewitt for breach of contract, seeking to recover the plan fees that Hewitt had failed to credit. Rollins also sought recovery for attorney fees and litigation expenses under OCGA § 13-6-11. Hewitt counterclaimed, seeking to recover for Rollins’s refusal to sign a new contract. Hewitt asserted claims for breach of contract, promissory estoppel, and quantum meruit. The parties filed cross-motions for summary judgment. The trial court granted summary judgment to Rollins on Hewitt’s claims for breach of contract and promissory estoppel, but denied summary judgment on all other claims. Hewitt appealed to this Court from the grant of partial summary judgment to Rollins, but we affirmed. Hewitt Associates, LLC v. Rollins, Inc., 294 Ga. App. 600 (669 SE2d 551) (2008).

The case returned to the trial court and was tried to a jury. At the close of the evidence, Hewitt moved for a directed verdict on Rollins’s claims, but the court denied the motion. The jury then awarded Rollins $820,737 in damages on its breach of contract claim, as well as $357,000 in attorney fees and litigation costs. The jury awarded nothing to Hewitt on its claims. After the trial court entered judgment on the jury verdict, Hewitt filed motions for judgment notwithstanding the verdict and for new trial. The trial court denied the motions, and this appeal followed.

1. Hewitt argues that the trial court should have granted judgment in its favor on Rollins’s breach of contract claim because the claim was time-barred under the 16-month statute of limitation in the 2001 Agreement. Specifically, Hewitt contends that Rollins should have realized when it received its first bill from National Trust back in 2001 that it was not receiving credit for any fund fees, yet Rollins did not file this action until August 28, 2006. Thus, according to Hewitt, Rollins may only seek payment of those fund fees that were due on or after April 28, 2005 — i.e., within 16 months of the filing of the action.

Rollins concedes that contractual periods of limitation are generally enforceable under Georgia law, see Southern Telecom v. Level 3 Communications, LLC, 295 Ga. App. 268, 273 (2) (671 SE2d 283) (2008), and that if applicable, the limitation period at issue here would bar at least some of its claims against Hewitt. Rollins contends, however, that the limitation period was tolled by Hewitt’s fraudulent conduct, which hindered Rollins from discovering the breach of contract. Rollins claims that Hewitt actively camouflaged its breach of contract by concealing its receipt of fund fees from Rollins until Rollins finally learned the truth in August 2005. Thus, Rollins maintains that its cause of action did not accrue until August 2005, and that it timely filed this action approximately 12 months later.

Under OCGA § 9-3-96, if the defendant is “guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiffs discovery of the fraud.” Hewitt argues that the fraud exception does not apply here for several reasons, none of which has merit.

(a) First, Hewitt contends that Rollins failed to plead fraud with the requisite particularity. See OCGA § 9-11-9 (b). But in the consolidated pretrial order, which was signed by the trial judge and explicitly stated that it superseded the pleadings, Rollins asserted that Hewitt falsely stated that there were no fund fees to be credited to Rollins, and Rollins provided details of the dates and contents of Hewitt’s alleged misrepresentations. Thus, contrary to Hewitt’s contention, Rollins did adequately plead its fraud defense.

(b) Second, Hewitt asserts that there was no evidence that it committed fraud. To establish fraudulent concealment under OCGA § 9-3-96 sufficient to toll a limitation period, the plaintiff must prove that (1) the defendant committed actual fraud involving moral turpitude, (2) the fraud concealed the cause of action from the plaintiff, and (3) the plaintiff exercised reasonable diligence to discover its cause of action within the applicable limitation period. Columbia County v. Branton, 304 Ga. App. 149, 153 (2) (695 SE2d 674) (2010). If a confidential relationship exists between plaintiff and defendant, there is “a greater duty on a defendant to reveal what should be revealed, and a lessened duty on the part of a plaintiff to discover what should be discoverable through the exercise of ordinary care.” (Citation omitted.) Cochran Mill Assoc. v. Stephens, 286 Ga. App. 241, 245 (1) (648 SE2d 764) (2007).

Rollins presented evidence that it had a confidential relationship with Hewitt that entitled it to “conclusively rely” on writings and other communications from Hewitt. Rollins also presented evidence that Hewitt knew Rollins was entitled to the fund fee offsets, that Hewitt alone knew how much it had received in fund fees, and that Hewitt failed to disclose that information even after inquiries from Rollins. Finally, Rollins presented evidence that Hewitt eventually admitted in August 2005 that it had retained some fund fees, though it did not disclose the full amount of those fees until after this lawsuit was filed.

Hewitt claims that Rollins has read too much into the evidence, discerning fraud where there was none. But because fraud is subtle and difficult to prove directly, it may be established by “slight circumstances.” Weatherly v. Weatherly, 292 Ga. App. 879, 883 (2) (665 SE2d 922) (2008). “Moreover, it is peculiarly the province of the jury to pass on these circumstances showing fraud.” (Punctuation and footnote omitted.) Kilroy v. Alpharetta Fitness, 295 Ga. App. 274, 279 (1) (671 SE2d 312) (2008). The evidence presented at trial authorized the jury to find that Hewitt committed fraud. See PricewaterhouseCoopers, LLP v. Bassett, 293 Ga. App. 274, 278 (2) (666 SE2d 721) (2008).

(c) In addition, Hewitt asserts that Rollins did not exercise due diligence to discover its cause of action. According to Hewitt, Rollins was put on notice of the existence of its claim because it should have seen from its invoices that it was not being credited for the fund fees. The 2001 Agreement required Hewitt to “reflect” the fund fee offsets in its invoices to Rollins, and it further provided that “Istatements of amounts retained by [Hewitt] (if applicable) are available upon request.” Hewitt’s assertions are unavailing.

As Rollins points out, if the contract had required Hewitt to itemize the fund fee offsets in its invoices, then there would have been no need for a separate provision requiring Hewitt to disclose those amounts upon request. Consistent with this observation, Rollins’s assistant benefits director, who reviewed Hewitt’s invoices, testified that she assumed that Hewitt, in its role as record keeper, was accurately crediting Rollins for the fund fees, and she did not necessarily expect to see such credits appear as separate line items on the invoices. Thus, there was evidence that a close scrutiny of the invoices would not have disclosed Rollins’s cause of action. Moreover, Rollins presented evidence that Hewitt “held at bay” the consultant it hired and vastly understated the amount of fund fees available. This evidence authorized the jury to find that Hewitt’s fraud hindered Rollins from discovering its cause of action until August 2005. Accordingly, the trial court did not err by failing to rule that Rollins’s breach of contract claim was time-barred as a matter of law.

2. Hewitt contends that the trial court erred by refusing to use a special verdict form that would have required the jury to make a specific finding as to the date that Rollins should have known of Hewitt’s breach of contract. Without this verdict form, Hewitt asserts, the jury “completely ignored the statute of limitations issue.” “The form of a verdict and the submission of a special verdict are within the discretion of the trial court, and, absent an abuse of that discretion, the court’s choice will not be overturned.” (Punctuation and footnote omitted.) Certain Underwriters at Lloyd’s of London v. Rucker Constr., 285 Ga. App. 844, 851-852 (4) (648 SE2d 170) (2007). Hewitt has failed to show any abuse of discretion here. And because the trial court charged the jury on Hewitt’s limitations defense, there is no basis for Hewitt’s contention that the jury ignored that issue.

3. Hewitt claims that the trial court erred by denying its motions for judgment as a matter of law on Rollins’s claim for attorney fees and litigation expenses. Under OCGA § 13-6-11, litigation expenses are recoverable as contract damages where the plaintiff pleads them and “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” (Emphasis supplied.) Questions concerning bad faith under this statute are generally for the jury to decide, and the trial court may grant judgment as a matter of law on such issues “only in the rare case where there is absolutely no evidence to support the award of expenses of litigation. ...” (Punctuation and footnote omitted.) Mariner Health Care Mgmt. Co. v. Sovereign Healthcare, LLC, 306 Ga. App. 873, 877 (3) (703 SE2d 687) (2010). As discussed in Division 1, there was evidence that Hewitt acted in bad faith. It follows that the trial court did not err by denying Hewitt’s motions for judgment as a matter of law on Rollins’s claim for litigation expenses. See Harris v. Tutt, 306 Ga. App. 377, 380 (3) (702 SE2d 707) (2010).

4. Hewitt complains that the trial court erred by charging the jury that it could award interest on any damages “at the rate not in excess of one and one-half percent per month.” The 2001 Agreement provided for an interest charge of one and one-half percent per month on all balances outstanding for more than 30 days. Although contractual interest rates are generally enforceable, “[a] contract that specifies an interest rate for one purpose does not automatically set the rate for other purposes.” Teachers Retirement System of Ga. v. Plymel, 296 Ga. App. 839, 848 (4) (676 SE2d 234) (2009). Hewitt insists that the interest rate specified in the 2001 Agreement applied only to fees that were due to Hewitt under the contract. The agreement, however, contemplates a lawsuit by either party, and it states without qualification that the contractual interest rate is applicable to “all outstanding balances.” Given this broad language, the trial court did not err by instructing the jury that it could apply that interest rate to an award of damages for Hewitt’s breach of contract.

5. Finally, Hewitt argues that the trial court should have granted its motion for new trial because the jury verdict on Hewitt’s counterclaims was inconsistent. The verdict form gave the jury the following options with respect to the counterclaim:

(d) We, the jury, find for the Defendant and award damages in the amount of $_, and
(e) We, the jury, find for the Defendant and award attorney’s fees and costs of litigation in the amount of $_
- or
(f) We, the jury, find for the Plaintiff.

Decided March 28, 2011.

Greenberg Traurig, Thomas J. Mazziotti, Michael J. King, for appellant.

Bodker, Ramsey, Andrews, Winograd & Wildstein, Harry J. Winograd, Jessica J. Harper, for appellee.

There were no boxes or blank spaces to check in front of the letters. In rendering the verdict on the counterclaim, the jury filled in “$0” in the blank spaces beside the (d) and (e) options on the form. According to Hewitt, this meant that the jury concluded that Hewitt had prevailed on its quantum meruit and attorney fee claims, but was entitled to no relief — a result that Hewitt contends is inconsistent.

Although a verdict that is contradictory is void, “verdicts are to be reasonably construed and not avoided unless from necessity.” Docutronics, Inc. v. Reitman, 235 Ga. App. 268, 269 (509 SE2d 348) (1998); see also OCGA § 9-12-4. Here, Rollins presented evidence that Hewitt’s software platform was of no value to it. In fact, one Rollins employee likened the Hewitt platform to “a dry-rotted water hose and it springs a leak.” In addition, there was evidence that Rollins had to expend funds to correct errors made by Hewitt. Thus, the verdict can be reasonably interpreted to mean that although Hewitt did perform work on Rollins’s behalf, the work had no value to Rollins. See Palmer v. Barnes, 193 Ga. App. 105 (387 SE2d 44) (1989) (finding no inconsistency injury verdict finding for plaintiff in tort action and awarding $0 in damages). Accordingly, the trial court did not err in denying Hewitt’s motion for new trial.

Judgment affirmed.

Phipps, P J., and McFadden, J., concur.

       According to a Hewitt witness, such fees are commonly paid to plan administrators by mutual funds in which the plan is invested and for which the plan administrator performs certain record keeping tasks.

       For example, an internal Hewitt e-mail from June 2003 noted that Rollins had hired an outside consultant to evaluate the possibility of fee reductions, but Hewitt had “held her at bay.” Moreover, a Rollins employee testified that Hewitt told her in August 2004 that it had not received enough money from fund fees to cover the $8,000 necessary for an annual plan enrollment kit - even though Hewitt had actually received amounts far in excess of $8,000. In February 2005, Rollins asked Hewitt for a current fee schedule, but the document that Hewitt supplied omitted any mention of the fund fees Hewitt was receiving.


author: Phipps, Presiding Judge.

text:
    A10A2201.
    HEARD v. THE STATE.
    (709 SE2d 582)
   Phipps, Presiding Judge.

Following a jury trial, Quinntavious Heard was convicted of possession of cocaine. He appeals from the denial of his motion for a new trial, asserting that the trial court abused its discretion in denying his motion for a continuance. Heard contends that the court failed to afford him the minimum seven days’ notice before trial required by Uniform Superior Court Rule (USCR) 32.1. For the reasons that follow, we reverse.

Whether to grant a motion for continuance is a decision that rests entirely within the sound discretion of the trial court; the trial court’s ruling on such a motion will not be disturbed absent a clear abuse of discretion.

Heard was arrested in January 2009 for the offense of possession of cocaine with intent to distribute. At a preliminary hearing on August 27, 2009, with Heard and his attorney present, the court noted that a status hearing would be set for September 16, 2009, and that the court “may reach [Heard] for trial that following week.”

At the September 16, 2009 hearing, defense counsel announced that “the defense is ready for trial.” The following then transpired:

THE COURT: All right. Ready for trial. Now is [Heard] going to be on my calendar as a back up if everything falls apart over the next few weeks?
[PROSECUTOR]: Well, Your Honor, that’s what... I actually wanted to find out if you wanted us to add today’s ready for trials to — it’s my understanding that October 12th is going to [a specific name] murder case and that —
THE COURT: That’s what I’m told.
[PROSECUTOR]: — and that October 26th we’ve heard is going to be [a specific name]’s week.
THE COURT: Well, I don’t know.... We still have next week and I don’t know what’s out there as well. I think out of an abundance of caution anybody in custody, such as Mr. Heard.
[PROSECUTOR]: Yes, sir.
THE COURT: Yes, ma’am.
[PROSECUTOR]: Okay.
THE COURT: Stick them on. . . . And any misdemeanors just in case we need filler at the end of weeks. . . . Because I don’t want the weeks to end up, you know, totally busted and we’ve got folks sitting in jail. So Mr. Heard will be put on that calendar, let him roll. And whether we reach him or not I don’t know but certainly we will put him on the calendar as a person in custody.

The court then inquired whether Heard was in custody because he was “under sentence.” The prosecutor replied that Heard “has a probation violation.” The court stated: “I’ll leave it up to you. He’s not going anywhere. So we don’t have to put him — if he’s not in the county jail he’s a state prisoner now anyway, so as far as he’s concerned, no, don’t worry about him. He’s under state sentence.”

The case was called for trial on Monday, October 26, 2009. Heard and his attorney were present. After the court discussed some preliminary matters, the state announced: “[T]he State is prepared to go forward. The State does concede that we have not complied formally with the seven day notice rule in Mr. Heard’s case, but we’ve contacted all witnesses in the case.” Defense counsel requested a continuance, stating that the court had not given any written notice that Heard’s case would be tried that week. Defense counsel, the circuit public defender, said that he was called the preceding Friday morning (October 23) and asked if counsel could possibly have Heard’s and another case ready for trial on Monday, October 26; defense counsel’s response to the caller is not indicated in the transcript.

In support of his motion for continuance, defense counsel explained to the court that the attorney from his office to whom Heard’s case had been assigned was not sufficiently experienced to prepare for a felony trial over the weekend, and that the public defender himself had tried to prepare both cases over the weekend but needed more time to investigate Heard’s case. He stated that “at this time the defense is unable to try this case,” adding that Heard was entitled to seven days written notice before he could “be forced to go to trial.” The court remarked that defense counsel had announced “ready for trial” more than a month earlier and that there were no motions pending in the case other than those raised on October 26. The court stated: “I don’t always give notice in that form. We’ve called cases before, [defense counsel], at the last minute to be tried. We’ve done that before .... You all need to quit announcing ready for trial.” The following then transpired:

[DEFENSE COUNSEL]: Well, Judge, there wouldn’t be a problem if the Court had given us any notice.
THE COURT: Well, counsel, I gave you —
[DEFENSE COUNSEL]: This is a civil — this is a civil trial calendar.
THE COURT: No sir, it is not. It is a — my notice is special civil and criminal. It gave notice of both. I had a calendar —
[DEFENSE COUNSEL]: Your Honor, for the record —
THE COURT: [Defense counsel], that was done.
[DEFENSE COUNSEL]: — this case was not on that calendar.
THE COURT: I know it. I’m not going to debate with you. Anything else you want to note for your record?

The court denied the motion and jury selection began.

After jury selection concluded but before the jury was sworn, defense counsel stated for the record that he had not received notice of the trial until the preceding Friday, and had not received a copy of the juror questionnaires before Monday; therefore, he said, he had been unable to review the questionnaires as he generally would have, some of his decisions were not informed, and he had “issues with the jury selection, including decisions on at least two jurors,” whose names he gave. The state remarked that Heard’s case “was not added to that” (unspecified) calendar, “[s]o he did not get written notice of this trial calendar.”

USCR 32.1 provides, in pertinent part:

. . . The judge or designee shall prepare a trial calendar, . . . and shall give notice in person or by mail to each counsel of record . . . and the defendant. . . not less than 7 days before the trial date or dates. The calendar shall list the dates that cases are set for trial, the cases to be tried at that session of court, . . . the names of the defendants and the names of the defense counsel.

Based on the record before us, we conclude that the court did not comply with USCR 32.1. Defense counsel stated at trial that Heard’s case was not on the trial calendar and that, other than the phone call he had received the Friday before Monday’s trial, he received no notice of the trial. And the state acknowledged that the case had not been added to the trial calendar and that there had not been formal compliance with the notice rule.

Although the state contends that Heard was given the required notice in person at the September 16, 2009 hearing and on October 23, 2009 through the phone call to defense counsel, we disagree. The court did not specifically indicate at the September hearing that Heard’s case was scheduled for trial on October 26. Rather, the court discussed several dates and weeks as possibilities, then indicated that, in light of information that Heard was in custody on a probation violation, the matter would be left “up to you” (it is unclear to whom the court was referring), and there was no need to worry about Heard. Assuming arguendo that the October 23 phone call constituted notice “in person,” it occurred less than seven days before Heard’s trial.

A trial court’s noncompliance with USCR 32.1 is to be assessed under the circumstances of each case. In this case, the notice provided was wholly inadequate. Heard’s case was not on the October 26 calendar; yet, three days before trial, defense counsel was notified by phone that he was expected to represent both Heard and another defendant in two trials starting on that date. There is no claim in this case that the court needed to set Heard’s trial for October 26 to meet a speedy trial demand. The state cites no authority, and we find none, holding that a party’s announcement of “ready for trial” at a pre-trial hearing vitiates the court’s duty to comply with the mandatory notice rule set forth in USCR 32.1. The court was required to set a trial calendar listing the cases to be tried and was required to give Heard proper notice of his trial date.

Decided March 28, 2011.

Anthony S. Carter, for appellant.

W. Kendall Wynne, Jr., District Attorney, Anne M. Kurtz, Assistant District Attorney, for appellee.

Given the court’s complete failure to comply with the notice rule and the circumstances under which Heard was required to proceed to trial, including counsel’s having had inadequate time to prepare for two cases to be tried that week, Heard has established harm. Under the circumstances presented in this case, the court clearly abused its discretion in denying the motion for continuance.

Judgment reversed.

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

        Greene v. State, 274 Ga. 220, 221 (3) (552 SE2d 834) (2001).

       Compare Payne v. State, 195 Ga. App. 523, 524 (1) (394 SE2d 781) (1990) (trial court did not abuse its discretion in denying motion for continuance despite fact that defense had not received copy of trial calendar at least seven days before trial, because defendant had been informed of specific trial date at arraignment, which was more than seven days before trial).

       Id.

       See Clark v. State, 259 Ga. App. 573, 576 (578 SE2d 184) (2003). Compare State v. Hitchcock, 285 Ga. App. 140, 142-143 (645 SE2d 631) (2007).

       See Clark, supra (where the court had ample time to comply with USCR 32.1 while still meeting the time requirements of defendant’s speedy trial demand, court’s noncompliance with that rule was error).

       Compare Miller v. State, 303 Ga. App. 422, 423-424 (693 SE2d 637) (2010) (no abuse of discretion in denying motion for continuance when, inter alia, counsel accepted representation of defendant with knowledge of trial date and with understanding that defendant did not want continuance, and counsel did not specify what else he would have done to prepare for trial); Carrington v. State, 270 Ga. App. 381, 386 (3) (606 SE2d 619) (2004) (no abuse of discretion in denying motion for continuance when, assessing noncompliance with seven-day notice requirement in USCR 32.1 under the circumstances of case, defendant failed to show harm; but there was no indication in the case that the trial had never been placed on the calendar).


author: Dillard, Judge.

text:
    A10A2226.
    HALL v. THE STATE.
    (709 SE2d 348)
   Dillard, Judge.

Following a juiy trial, Stephen Mark Hall was convicted of kidnapping with bodily injury, kidnapping, terroristic threats, cruelty to children, cruelty to children in the third degree, five counts of battery, and possession of a firearm during the commission of a felony. Hall argues on appeal that the evidence of asportation was insufficient to support his kidnapping convictions, and further that the trial court erroneously denied his request to charge the jury on the lesser-included offense of false imprisonment. We find the evidence sufficient to support Hall’s kidnapping convictions, but are constrained to conclude that the trial court erred in failing to charge the jury on the lesser-included offense of false imprisonment. And because we cannot say as a matter of law that this error was harmless, we are likewise constrained to reverse Hall’s kidnapping convictions.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence shows that on the afternoon of October 14, 2005, the victim and her two-year-old granddaughter were washing their hands in the ladies’ restroom at Walmart when Hall stormed out of one of the stalls with a stun gun, which he then began firing into the victim’s neck while demanding that she join him in a restroom stall. The victim adamantly refused to enter the stall and a violent struggle ensued. Over the course of approximately 15 minutes, the victim desperately attempted to exit the restroom with her granddaughter while Hall was physically fighting the victim on the restroom floor to prevent her from reaching the door. The terrified child was crying hysterically and “following [the victim] every step [she] took” during the altercation. At some point, Hall began threatening the victim with a large knife while continually attempting to force her into the stall, and on several occasions he waved the knife in the child’s face while insisting that the victim keep the child quiet. Hall also punctured the victim’s leg with the knife during the scuffle.

This commotion gained the attention of several customers and Walmart employees, who heroically attempted to force their way into the restroom. Walmart management also joined in the effort after being alerted via radio of the incident by an employee who was inside the restroom and had locked herself into a stall when the attack on the victim and her granddaughter began. Hall, however, forcibly held the door closed while physically preventing the victim or child from reaching it.

Eventually, one of the good Samaritans succeeded in opening the restroom door just enough to stick his arm through the crack, giving the victim the opportunity to thrust her granddaughter into his reach. The man successfully removed the child from the restroom and then attempted to help the victim in the same manner. As the rescuer grabbed the victim’s ankle and tried to pull her toward the door, another violent struggle ensued as Hall attempted to physically wrest the victim from the man’s hold to prevent her escape. Indeed, at trial the victim vividly described how Hall nearly “pulled [her arms] out of the sockets” and imprinted a tennis-shoe-shaped bruise onto her leg in his efforts to keep her from reaching the door. Thankfully, the victim eventually broke free of Hall’s grasp and ran to safety.

Having been foiled in his attempt to force the victim into the stall, Hall bolted out of the restroom, armed with the stun gun and pepper spray, and threatened anyone who attempted to stop him from leaving the store. When it became clear that the crowd assembling around him had no intention of letting him flee the premises, Hall began spraying the pepper spray directly into their faces. As those in the crowd struggled to see and began gasping for air, Hall fled the store, spraying all who he encountered on his way out, including a five-year-old girl.

Unfortunately for Hall, a brave reservist with the United States Marine Corps happened to be in the parking lot, and—after being informed of the transpiring events—he stopped Hall dead in his tracks, holding him at gunpoint until law-enforcement officers arrived. Hall was then arrested, and found to be in possession of three sets of handcuffs, a collapsible metal baton, and brass knuckles—in addition to the stun gun and pepper spray. Thereafter, Hall was convicted of kidnapping with bodily injury, kidnapping, terroristic threats, cruelty to children, cruelty to children in the third degree, five counts of battery, and possession of a firearm during the commission of a felony. This appeal follows.

1. Hall first argues that the evidence is insufficient to sustain his kidnapping convictions because the State failed to prove the necessary element of asportation. Specifically, he argues that the movement at issue was incidental to his aggravated assault on the victim. We disagree.

Under Georgia law, a person commits the crime of kidnapping when he “abducts or steals away [i.e., asports] another person without lawful authority or warrant and holds such other person against his or her will.” At the time of Hall’s crime in 2005 and his subsequent conviction in 2007, the law permitted the necessary element of asportation to be proven by any evidence that the victim was moved, however slight. In Garza v. State, however, our Supreme Court adopted a new four-part test to aid in the determination of whether the movement at issue constitutes asportation:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

In so holding, the Garza Court explained that the purpose of the foregoing test is to assess “whether the movement in question is in the nature of the evil the kidnapping statute was originally intended to address—i.e., movement serving to substantially isolate the victim from protection or rescue—or merely a criminologically insignificant circumstance attendant to some other crime.”

Here, we have little trouble concluding that Hall’s movement of both the victim and her granddaughter was sufficient to sustain the asportation element of his kidnapping convictions. The victim testified that during this terrifying episode, they were moving back and forth in the restroom as Hall furiously attempted to force her into the stall and she desperately attempted to reach the door. That the movement may have been of a minimal duration is of little consequence when viewed in the context of the entire violent episode. Indeed, the vast majority of Hall’s vicious conduct in relation to the victims—i.e., physically forcing the grandmother (and, by default, the grandchild, who was desperate to remain with her) toward the stall; forcibly preventing the victims from reaching the door while refusing to allow others to enter; and actively tearing the grandmother away from those attempting to render her assistance—occurred independently of the aggravated assaults with the stun gun and the knife, and posed a significant danger to the victim and her granddaughter in a way wholly independent of the dangers posed by his other offenses.

Most significantly, the movement further enhanced Hall’s control over both the victim and her granddaughter, “substantially isolating” them from the protection of the rescuers who were vigorously trying to reach them on the other side of the restroom door—thus representing the exact “evil” the kidnapping statute was intended to address. Under these facts, it is of little consequence that Hall’s movement of the granddaughter was an indirect corollary of his attack on the grandmother because its impact under Garza was the same. As such, we conclude that the evidence was sufficient to sustain Hall’s kidnapping convictions.

2. Hall next contends that the trial court erred in denying his request to charge the jury on false imprisonment as a lesser-included offense of the crime of kidnapping. In Georgia, “[a] written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” Moreover, the crime of false imprisonment is committed “when, in violation of the personal liberty of another, [a defendant] arrests, confines, or detains such person without legal authority.” And significantly, the only difference between the crime of kidnapping and the crime of false imprisonment is the element of asportation.

Here, because we conclude that there is at least some evidence, particularly in light of the new law as set forth in Garza, that the jury could have convicted Hall of the lesser-included offense of false imprisonment, the trial court erred in refusing to charge on that crime. Further, we cannot say that the evidence was so overwhelming as to render the failure to give the charge harmless. Consequently, we are constrained to reverse Hall’s kidnapping convictions as to both the victim and the child. We note, however, that because we have concluded, as set forth in Division 1, that the evidence was otherwise sufficient to support Hall’s convictions on those crimes, the State may retry Hall without violating the Double Jeopardy Clause.

3. In light of our holding in Division 2, we need not address Hall’s remaining enumerations of error with respect to the jury charges on kidnapping.

Decided March 28, 2011.

Peter D. Johnson, for appellant.

Richard A. Mallard, District Attorney, Daphne H. Jarriel, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Barnes, P. J., concurs. Blackwell, J., concurs in judgment only.

       Hall was also charged with and found guilty on four counts of aggravated assault and three additional counts of battery, but the trial court did not enter judgment of conviction on those charges, which merged into the kidnapping-with-bodily-injury conviction and the cruelty-to-children conviction, respectively.

       Hall has not challenged his convictions on the remaining offenses, which remain intact.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       Although Hall filed a timely motion for new trial following his March 2007 conviction, the trial court did not issue an order denying that motion until June 2010. Hall then filed a timely notice of appeal from the trial court’s 2010 order, which is presently before this Court.

       The employee had actually been investigating what she believed to be a shoplifter after hearing suspicious noises coming out of the stall where Hall had been hiding.

       The four counts of aggravated assault on which Hall was tried and found guilty included two counts based upon his stunning the victim with the stun gun, one count based upon his threatening conduct with the knife, and the last count based upon his actual puncturing of the victim’s leg with the knife.

       OCGA § 16-5-40 (a).

        See generally Lyons v. State, 282 Ga. 588, 591 (1) (652 SE2d 525) (2007) (“The requirement of asportation to prove kidnapping is satisfied if there is movement of the victim, however slight that movement is.” (citation omitted)); Mullins v. State, 280 Ga. App. 689, 690 (1) (634 SE2d 850) (2006) (“[T]he distance which a kidnapper abducts his victim is without legal significance.” (citation and punctuation omitted)).

       284 Ga. 696, 701-702 (1) (670 SE2d 73) (2008). Garza was decided after Hall was convicted but before he filed his notice of appeal. Thus, according to the “pipeline” rule, Garza applies to this case. See, e.g., Freeman v. State, 269 Ga. 337, 339 (1) (c) (496 SE2d 716) (1998); Taylor v. State, 262 Ga. 584, 586 (3) (422 SE2d 430) (1992). Following our Supreme Court’s decision in Garza, the Georgia General Assembly amended the kidnapping statute “to provide that slight movement is sufficient to prove kidnapping as long as the movement was not incidental to another offense,” then further defined what actions would not be incidental to another offense. Wright v. State, 300 Ga. App. 32, 34 (1) n. 1 (684 SE2d 102) (2009) (citation and punctuation omitted); see Ga. L. 2009, Act 88, § 1. The amended statute applies only to crimes committed on or after the revised statute’s effective date, July 1, 2009. See OCGA § 1-3-4. Because the crime in the case sub judice occurred in October 2005, the amended statute is not applicable.

        Garza, 284 Ga. at 702 (1) (citation and footnote omitted).

        Id. (punctuation omitted).

       Indeed, in Hall’s brief he concedes that the granddaughter’s movements largely mirrored those of the victim, and that the granddaughter was “clinging to” the victim throughout the ordeal.

        See, e.g., Henderson v. State, 285 Ga. 240, 245 (5) (675 SE2d 28) (2009) (finding evidence of asportation sufficient despite concluding that the movement of the victims was of minimal duration); Abernathy v. State, 299 Ga. App. 897, 900 (1) (685 SE2d 734) (705 SE2d 906) (2009) (“Not all of the elements under the [Garza] test must favor the State in order to prove asportation.” (citation and footnote omitted)).

        See generally Henderson, 285 Ga. at 245 (5) (moving victims into a different room after demanding at gunpoint that they empty their pockets was movement after and not incidental to the armed robbery); Williams v. State, 307 Ga. App. 675, 678 (1) (705 SE2d 906) (2011) (aggravated assault was completed when defendant pointed gun at victim and grabbed her, rendering his subsequent movement of her into the bathroom independent of that crime); Humphries v. State, 305 Ga. App. 69, 72 (699 SE2d 62) (2010) (dragging victim down a hill was not an inherent part of the aggravated assault or other crimes that followed); Bryant v. State, 304 Ga. App. 755, 757 (1) (697 SE2d 860) (2010) (forcing victim into the house was done after the aggravated assault of sticking a gun into his neck had been completed); Dixon v. State, 303 Ga. App. 517, 519 (1) (693 SE2d 900) (2010) (forcing victim into hotel room occurred before aggravated assault and was not inherent part of that offense).

        See generally Williams, 307 Ga. App. at 678 (1) (forcing victim into the bathroom created additional danger to her by enhancing defendant’s control over her); Humphries, 305 Ga. App. at 72 (movement down hill enhanced the danger to the victim and reduced the possibility of her obtaining help from others); Bryant, 304 Ga. App. at 757 (1) (moving victim from outside to inside house placed him in additional danger by isolating him from rescue); Dixon, 303 Ga. App. at 519 (1) (moving victim into defendant’s hotel room enhanced his control over her and isolated her from contact with the other guests).

        Edwards v. State, 264 Ga. 131, 132-33 (442 SE2d 444) (1994) (“Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.” (citation and punctuation omitted)); Stovall v. State, 216 Ga. App. 138, 141 (5) (453 SE2d 110) (1995).

        See OCGA § 16-5-41 (a).

       See Ellis v. State, 181 Ga. App. 630, 633 (5) (353 SE2d 822) (1987).

       We note that this case was tried consistent with the common and settled understanding of asportation that prevailed at the time of trial and, under the law as it then existed, our conclusion with respect to the trial court’s failure to give the charge may have differed.

        Compare generally Braley v. State, 276 Ga. 47, 53 (30) (572 SE2d 583) (2002) (any error in failing to give charge on the lesser-included offense was rendered harmless by overwhelming evidence of defendant’s guilt on the crime charged); Edwards v. State, 264 Ga. at 133 (same); Stephens v. State, 232 Ga. App. 738, 740 (4) (503 SE2d 643) (1998) (same); Mitchell v. State, 221 Ga. App. 183, 184 (3) (470 SE2d 771) (1996) (same).

        See generally Gibson v. State, 265 Ga. App. 325, 328 (593 SE2d 861) (2004); Shaw v. State, 238 Ga. App. 757, 759 (1) (519 SE2d 486) (1999).

        See generally In the Interest of B. R., 289 Ga. App. 6, 9 (2) (656 SE2d 172) (2007); In the Interest of D. D., 287 Ga. App. 512, 515 (2) (b) (651 SE2d 817) (2007). See also U. S. Const. amend. V


author: BARNES, Presiding Judge.

text:
    A10A2320.
    MAUK v. PIONEER FORD MERCURY et al.
    (709 SE2d 353)
   BARNES, Presiding Judge.

Sheila Mauk bought a new Mustang in May 2007, and within three weeks brought it back to the dealership, Pioneer Ford Mercury, with complaints about the transmission. Over the next nine months Mauk brought the car back to the dealer for service eight times, but her complaints were not resolved, and in February 2008 she sent a letter to Pioneer, Ford Motor Company, and the lender SunTrust Bank seeking to revoke her acceptance of the car under OCGA § 11-2-608 of the Uniform Commercial Code. Mauk then filed a complaint against the three entities in May 2008, seeking damages and relief from her installment contract, and this litigation ensued. The trial court granted summary judgment to Pioneer and SunTrust on Mauk’s claim for damages from Pioneer’s failure to accept her revocation of the contract, and Mauk appeals. For the reasons that follow, we reverse the trial court’s summary judgment to Pioneer and SunTrust on this claim. In so doing, we overrule the case on which the trial court understandably relied, Scott v. Team Toyota, 276 Ga. App. 257, 259 (4) (622 SE2d 925) (2005).

On appeal we review the trial court’s grant of summary judgment de novo to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact. Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Ford v. Bank of America Corp., 277 Ga. App. 708 (627 SE2d 376) (2006). When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Wachovia Bank v. Moody Bible Inst. of Chicago, 283 Ga. App. 488, 489 (642 SE2d 118) (2007).

1. Mauk bought a new Mustang in May 2007, financing it with a six-year loan from SunTrust with payments of $587 per month. In February 2008, Mauk’s attorney sent a certified letter to Pioneer, SunTrust, and Ford revoking her acceptance of the car. In the letter, Mauk sought the return of the money she had paid for the car to date and also sought $1,000 in attorney fees to settle all of her claims against the three entities. The trial court held that this revocation was not an “unconditional tender” of goods back to the seller, which we held in Scott was required to revoke the acceptance of noncom-forming goods under OCGA § 11-2-608 of the UCC.

Scott reviewed both a claim for damages due to fraud and a claim for damages resulting from the delivery of nonconforming goods. In Division 1, we held that a party electing to rescind a contract for fraudulent inducement under OCGA § 13-4-60 must tender any benefits received before bringing the action. 276 Ga. App. at 258 (1). We then held that the offer to restore the consideration received under the contract must be “unconditional and certain.” In Division 4, addressing Scott’s UCC claim under OCGA § 11-2-608, we held that she “did not tender the [goods] back to [the seller] in accordance with the requirements of Georgia law,” and referred to Division 1. Id. at 259 (4).

Mauk does not claim fraud, and therefore the requirements for contract rescission on that basis are not before us. As to Mauk’s UCC claim, however, the buyer need not tender nonconforming goods as a condition precedent to a claim based on a revocation of acceptance theory of recovery, much less make an unconditional tender. OCGA § 11-2-608 provides:

(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it. . . .
(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.

(Emphasis supplied.) The condition precedent to a claim for damages due to the seller’s failure to accept the buyer’s contract revocation under OCGA § 11-2-608 (2) is that the buyer give the seller notice of the revocation within a reasonable time and before the condition of the goods changes substantially from unrelated causes. See Fiat Auto U.S.A. v. Hollums, 185 Ga. App. 113, 114-115 (3) (363 SE2d 312) (1987) (letter recounting car troubles and asking manufacturer to take back the car and refund money paid was sufficient to constitute revocation of acceptance).

Further, other provisions of the UCC support the conclusion that tender is not required to revoke acceptance under OCGA § 11-2-608. OCGA § 11-2-608 (3) gives the buyer the same rights and duties regarding the goods as she would have if she had rejected them, and OCGA § 11-2-602 (2) (b) requires the buyer to hold the nonconforming goods with reasonable care for a time sufficient to permit the seller to remove them. Finally, if a buyer justifiably revokes her acceptance, OCGA § 11-2-711 (3) grants the buyer a security interest in the noncomforming goods for certain payments and expenses incurred, and even allows the buyer to resell the goods under certain circumstances. All of these provisions are inconsistent with requiring a tender to revoke a contract for the sale of nonconforming goods under the UCC.

Additionally, in the context of a sale of goods, the UCC specifically addresses the seller’s duty to tender the goods and the seller’s right to cure a nonconforming tender of goods if the contracted time for performance has not expired. OCGA §§ 11-2-507 and 11-2-508. We thus regard the absence of a tender requirement in OCGA § 11-2-608 (2) as a deliberate matter of considered choice. See Padgett v. City of Moultrie, 229 Ga. App. 500, 503 (1) (494 SE2d 299) (1997); Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 72 (1) (456 SE2d 642) (1995).

While we have found no Georgia cases specifically holding that tender is not required to revoke the acceptance of goods under OCGA § 11-2-608 of the UCC, other jurisdictions have addressed the issue directly.

A tender of the goods by the buyer to the seller is not an essential element of revocation. All that is required by the Code is a notification of revocation. The Code declares that notification is not effective until notice is given and by necessary implication states that there is a sufficient revocation of acceptance when a “notice” is given even though the buyer still has possession of the goods and even though he does not make any tender of the goods to the seller. The concept of revocation of acceptance is not to be confused with rescission. . . . Anderson, Uniform Commercial Code, § 2-608.18 (2d ed. 1971)[.]

Snow v. C.I.T. Corp. of the South, 647 SW2d 465, 467 (Ark. Ct. App. 1983). See also, e.g., Mobile Homes Sales Mgmt. v. Brown, 562 P2d 1378, 1381 (Ariz. Ct. App. 1977) (any previous “tender back requirement has now been eliminated by the adoption of the UCC”); Art Hill v. Heckler, 457 NE2d 242, 245 (Ind. Ct. App. 1983) (buyer may revoke acceptance of goods without physically returning them to seller).

In this case, Mauk seeks damages for Pioneer’s failure to accept her attempted revocation under OCGA § 11-2-608 of her automobile purchase. Because the UCC does not require that a buyer tender nonconforming goods to effect the revocation of a sales contract, that portion of Scott holding otherwise is hereby overruled.

2. The trial court noted in its order on summary judgment that, absent the controlling precedent of Scott, it would have concluded that questions of fact remain for the trier of fact regarding whether Mauk’s revocation was timely and whether the alleged defects substantially impaired the car’s value to her. Pioneer and SunTrust argue that, regardless of whether Scott’s attempted revocation was proper, evidence the car had more than 12,000 miles on it when tendered and was driven more than 4,000 miles after the tender constitutes reac-ceptance as a matter of law. We agree with the trial court that whether Mauk’s revocation was timely, whether she reaccepted the car, and whether the alleged defects substantially impaired the car’s value to her were questions of fact for the jury to decide.

A buyer who purports to revoke acceptance of goods may be found to have reaccepted them if, after such revocation, the buyer performs acts inconsistent with the seller’s ownership of the goods. Griffith v. Stovall Tire & Marine, 174 Ga. App. 137, 138 (1) (329 SE2d 234) (1985) (evidence buyer refused to allow seller access to repair vehicle with 120,000 miles, absent responsive evidence from buyer, was sufficient for summary judgment). See also Small v. Savannah Intl. Motors, 275 Ga. App. 12, 13-14 (1) (619 SE2d 738) (2005) (summary judgment properly granted to seller because evidence showed buyer did not seek revocation until she was unable to trade in car that she discovered had been flooded, and buyer’s husband liked the car and continued to drive it); Olson v. Ford Motor Co., 258 Ga. App. 848, 850 (1) (575 SE2d 743) (2002) (summary judgment properly granted to seller on buyer’s revocation claim, because evidence showed buyer used vehicle ownership to negotiate with credit union and took other actions consistent with reacceptance); Fiat, 185 Ga. App. at 115 (3) (directed verdict properly granted to seller on buyer’s revocation claim upon evidence buyer drove car more than 6,000 miles after repairing it and painting it another color).

Here, Pioneer and SunTrust argue that Mauk reaccepted the car because she continued driving it for 4,000 miles after sending the revocation letter in February 2008. First, the evidence in that regard is equivocal. The service order dated February 27, 2008 showed that the car had 14,379 miles on it. When asked at her deposition in December 2008 how many miles were on the car, Mauk replied, “It’s right at 18,000, and I want to say maybe 18,200 — I hadn’t been in it, so I’m not exactly sure. . . . I’m going to say nine months it’s sat in the garage.” Second, continued use of a car is not necessarily inconsistent with a revocation of acceptance. Franklin v. Augusta Dodge, 287 Ga. App. 818, 820-821 (1) (652 SE2d 862) (2007). When asked about the car having 14,000 miles on it in less than a year despite all the problems she had experienced with it, Mauk explained that it had been her family’s primary car.

In Franklin, we reversed a trial court’s directed verdict on a revocation claim although the buyer put 32,000 more miles on the car after the seller ignored his attempted revocation. The buyer testified he continued to use and pay for the vehicle because he could not afford to buy another truck while trying to resolve the problems with the one at issue and he had no other feasible means of transportation. Id. at 819. See also Mitchell v. Backus Cadillac-Pontiac, 274 Ga. App. 330, 334-335 (2) (618 SE2d 87) (2005) (buyer’s continued possession of vehicle dealer would not take back did not warrant directed verdict on rescission claim); Reeb v. Daniels Lincoln-Mercury Co., 193 Ga. App. 817, 818-819 (1) (389 SE2d 367) (1989) (directed verdict on revocation claim error because questions of fact about timeliness of revocation and impairment of goods).

In this case, questions of fact exist about whether Mauk’s revocation was timely, whether she reaccepted the car after her tender, and whether the alleged defects substantially impaired the car’s value to her. She testified that she stopped driving it after numerous unsuccessful attempts to have it repaired because the clutch continued to pop out of gear unexpectedly, chatter, and release a burning odor that made the car smell “like a dead dog.” She first returned the car to the dealer three weeks after she bought it in May 2007 because it had popped out of gear and was making noise, and the dealership lubricated and adjusted the front bushings and sway bar. She brought it back less than a week later and the dealership said the noise was normal for the Tremec 5-speed manual transmission installed in the car. She brought it back again at the end of June 2007, and the dealership replaced the clutch disc, but the problem was “a lot worse” and in mid-July Mauk returned with the same complaints. The repair ticket for that visit indicated the service technician could find nothing wrong with the car, so according to Mauk, Pioneer left a “ticket open” for her to return so the dealer could try again to correct the problems. When Mauk brought the car back ten days later, complaining that the clutch slipped and chattered, she was again told that the noise was normal for her type of transmission.

A week later in early August 2007, Mauk returned, complaining that the vehicle popped when backing up and down hills and that she could smell an odor from the clutch, but once again Pioneer said it could not find any problem with the transmission or clutch despite having a “team of specialists” examine the car. The dealership told Mauk it would not work on it again for this issue because the car’s characteristics were normal.

Three weeks later, in August 2007, Mauk took the car to another dealership for a second opinion, complaining that the clutch chattered, jumped, and “popped” in forward and reverse. A technician there said the noise had been caused by a loose flange nut where the driveshaft attached to the transmission, which they tightened. Mauk returned to the other dealer within a week because the clutch was still chattering “very badly” and causing the car to stall in stop- and-go traffic. She had been stranded three times when the clutch became hot and the car died, and her daughter was concerned about her driving it. The dealer kept the car for about a week or two and replaced the entire clutch assembly.

Mauk continued having problems with the car, and finally contacted Ford customer service to say she was “very disappointed” in the Mustang, that she had driven straight-shifts before, and that she did not believe that the popping was a “normal, standard noise.” All she wanted was for it to be fixed. In November 2007, Mauk brought the car back to Pioneer after Ford set up a “final repair attempt.” According to the repair ticket, Mauk complained that the transmission was making a “clunking noise, pops, and has jumped out of first gear” but the same engineer who had examined the car before could not repeat the problem and again noted that the noise was a “normal characteristic of this transmission, as it is performance oriented.”

After that, Mauk did not complain to Pioneer again about the transmission and noise problems, because she had been advised that the dealership “could not touch it” after the Ford engineer said the noise was normal. Thus, when she took her car to Pioneer on February 7, 2008 for maintenance work under the warranty, the service ticket made no mention of these problems. Mauk took the car to a transmission specialist on February 14, 2008, who told her that the popping, whining noise was not “correct,” and on February 22, 2008, Mauk’s attorney sent the certified letter to Pioneer, SunTrust, and Ford revoking her acceptance of the car. Mauk took the car to Pioneer on February 27, 2008 for the last time, and the dealer replaced a belt, fixed her backup lights, and replaced a window regulator. In April or May 2008, Mauk parked the car for good because she had gone down “every avenue” and no one could or would fix it.

Decided March 28, 2011.

T. Michael Flinn, for appellant.

Owen, Gleaton, Egan, Jones & Sweeney, Philippa V. Ellis, Ana

Mauk’s transmission specialist testified that when he drove the car in February 2008, it made a lot of noise. While it did not jump out of gear when he tested it then, it was popping, the clutch was chattering in reverse, and the back-up lights were not working. Mauk brought it back to him on July 9, a few weeks before he was deposed, and the specialist “did get it to jump out of fifth gear.” He testified that the car was probably jumping out of first and fifth gear, because the gear shift shaft was not clearing the rim of the console properly, and if the driver’s hand was not on the gear shift knob, sudden acceleration or deceleration could knock the shaft against the rim and take the car out of gear. He also thought the popping noise was coming from a body part. A complete diagnosis and repair would require disassembling the transmission, because no one could tell from the outside what was wrong with the inside, but he thought the cause was a manufacturing defect, based on Mauk’s statement that the car had had this problem since it was new.

11 Issues such as whether an effective revocation of acceptance was made, whether reasonable notice of revocation was given to the seller, and whether the value of the goods was substantially impaired are ordinarily matters for determination by the trior of fact, even where the buyer has continued to use nonconforming goods after an alleged revocation of acceptance. Trailmobile Div. of Pullman v. Jones, 118 Ga. App. 472, 474 (164 SE2d 346) (1968); Jacobs v. Metro Chrysler-Plymouth, 125 Ga. App. 462 (188 SE2d 250) (1972); Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 851 (278 SE2d 689) (1981).

Griffith, 174 Ga. App. at 139 (1). Based on the evidence outlined above, we agree with the trial court that, absent the directive of Scott, questions of fact exist for the trier of fact.

Accordingly, we reverse the trial court’s grant of summary judgment to Pioneer and SunTrust on Mauk’s claim for damages resulting from the dealership’s failure to accept her revocation of the sales contract.

Judgment reversed.

Ellington, C. J., Smith, P. J., Miller, P J., Phipps, P. J., Andrews, Mikell, Adams, Doyle, Blackwell, Dillard and McFadden, JJ., concur.

M. Martinez, Melissa Phillips Reading, Casey Gilson, Karen R. Dunbar, Stacey K. Hydrick, for appellees.

       Mauk’s warranty claims remain pending in the trial court.


author: Ellington, Chief Judge.

text:
    A11A0090.
    WATSON v. THE STATE.
    (708 SE2d 703)
   Ellington, Chief Judge.

A Walton County jury found Derrick Watson guilty of four counts of armed robbery, OCGA § 16-8-41 (a); aggravated battery, OCGA § 16-5-24 (a); five counts of aggravated assault, OCGA § 16-5-21 (a); burglary, OCGA § 16-7-1 (a); possession of a firearm during the commission of a felony, OCGA § 16-11-106 (b); and conspiracy to possess cocaine, OCGA §§ 16-4-8, 16-13-30 (a). Watson appeals from the denial of his motion for new trial, contending that the evidence was insufficient, that his trial counsel was ineffective, and that the trial court erred in giving certain jury instructions. Finding no error, we affirm.

On appeal, this Court views the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). 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 under the standard set forth in Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). Id.

So viewed, the record shows the following. Late in the evening of September 25, 2006, Michael White, Jamie Jackson, Brian Davis, Mikel Burnett, Untredale Jarrells, and Watson met at White’s home in Athens and planned to travel together to Monroe to buy cocaine from a drug dealer, Boris Oliver, with whom they had a passing acquaintance. At some point during the evening, the group decided that they would rob Oliver of his money and cocaine. Watson was present during that conversation, and Davis testified that Watson knew the final plan was to rob the drug dealer. The group left Athens in two cars, White’s black Nissan Sentra and Watson’s green Ford Explorer.

Upon arriving in Monroe, the six men met with Rod Kelly, who was driving a white Crown Victoria. Kelly, who lived in the area, led the men to Oliver’s house and then left. At that point, Watson was driving the Ford Explorer. The men parked the cars near Oliver’s house, and then four of them walked up to the house while two stayed near the cars. Davis, who was armed with a knife, kicked the front door open and entered the house with Jarrells, who was armed with a handgun. The men wore dark clothes and ski masks. After Jarrells and Davis entered, two of their masked co-defendants followed them inside.

As Boris Oliver and Felicia Moon were in their bedroom preparing to go to sleep, they heard a loud noise at their front door. Oliver ran to the front door, which was open, and confronted two masked men, one of whom pointed a pistol at him and said: “You know what it is.” The men struggled with Oliver and beat him about the head and face. Moon stepped out in the hall to see what was happening, witnessed the fight, and ran back to her bedroom. She grabbed a gun, climbed into bed with her baby, and called 911. After Jarrells had subdued Oliver, he forced him to the bedroom at gunpoint, demanding money and a “black box.” Moon witnessed the masked man struggling with Oliver in the bedroom closet, and Jarrells testified that he took a bag containing $38,000 and drugs out of the closet. Jarrells then demanded money from Moon, who surrendered $1,500 she had hidden under her pillow. Jarrells also took her cell phone. During the ordeal, Moon heard her sister, Jessica, who was living with them at the time, scream. And then she heard a gunshot.

Jessica Moon testified that she and her children were living with her sister and Oliver on the night of the robbery. Sometime after midnight, as she lay in bed, she heard a loud noise at the front door. She got up and saw Oliver struggling with two masked men armed with weapons. One of the men forced his way into her bedroom, demanded money, stole a home phone from her room, and then shot her in the leg. Jessica Moon testified that the bullet, which had not been removed from her leg, continues to cause her pain. After being shot, she heard a man calling to the robbers inside the house, telling them to run. Jessica Moon tried to climb out of the bedroom window, but a man who was standing outside ordered her to get her “butt back in the window.”

As the robbery was occurring inside the house, two of Oliver’s friends drove into his driveway in a van and parked by the garage. Shawn Giles testified that Oliver had called him earlier that night and asked him to deliver one of his workers, Joey Flint, to his house so that they could load up Oliver’s truck for a brick laying job the next day. Giles noticed the Nissan and Ford Explorer parked on the street a short distance away. As Giles and Flint got out of the van, two armed men accosted them and forced them to the ground. One of the men took Giles’ wallet. Giles testified that the men were communicating with each other with cell phones or walkie talkies.

The men inside the house continued to demand money from Oliver. Oliver led the robbers to believe that he had hidden money in the garage in the hope of drawing the robbers away from the women and children inside the house. The robbers forced Oliver to the garage and, while they were in the garage, the 911 operator called the home to follow-up on Felicia Moon’s report of a home invasion. Oliver heard one of the robbers announce that the police had been called, and the robbers fled. Felicia Moon gave Oliver her handgun, and Oliver decided to chase the robbers. As he went outside, Oliver met Flint and Giles by the garage. Flint got in Oliver’s truck and the two began pursuing the robbers.

As Oliver drove out of his subdivision, he saw a black Nissan Sentra pass him and, shortly thereafter, he saw several men struggling to get inside a moving Ford Explorer. Watson was driving the Ford Explorer, according to one of his co-defendants. The two vehicles sped away from Oliver in the same direction. As the men in the Ford Explorer drove off, Oliver witnessed them taking their ski masks off. As Oliver gave chase, someone in the Ford Explorer fired a gun at him. Moments later, several police cars drove by them, headed toward Oliver’s home. One of the police cars turned around and pursued them; the others continued on to Oliver’s home. Oliver followed the Ford Explorer until the driver lost control and went off the road into a bank of kudzu. The occupants of the vehicle fled in different directions. When the police arrived, Oliver pointed out the directions in which the robbers had fled.

A police officer testified that, shortly after midnight on September 26, 2006, he and other patrolling, uniformed officers received a dispatch that a woman had been shot and that a burglary was in progress. As the officer drove toward the victim’s address, he saw a dark green SUV speeding toward him in excess of 80 miles per hour. One of his fellow officers pursued the SUV while he continued driving to the scene of the shooting. The officer testified that he observed muddy footprints on Oliver’s open front door. He secured the house and attended to the injured victim, her sister, and the seven children who were in the house. A search of the home revealed a box in the bedroom closet. Oliver’s blood was on the box and on the closet floor.

An officer who searched the wrecked Ford Explorer testified that he found a black ski mask, a camouflage jacket, and a box of .357 caliber ammunition inside the vehicle. In the street near the Explorer, the police recovered cell phones, one of which belonged to Felicia Moon, and a handgun. Though the Ford Explorer was registered in the name of Sheila Stanley, Watson’s mother, Stanley testified that Watson used the car almost exclusively and kept it in his possession. Stanley testified that, after she learned the car had been involved in a crime, she called Watson. He told her to report the car stolen, but she refused since the car had not been stolen from her. A search of the car revealed documents such as receipts, insurance papers, and prescriptions in Watson’s name.

With the assistance of tracking dogs, the police caught Davis hiding beneath the porch of a residence and Burnett in the backyard of another home not far from where the Ford Explorer had been abandoned. Beneath the porch where Davis had been hiding, the police found a bag of suspected crack cocaine. A short distance from where Davis was found, the police discovered Oliver’s home phone and Giles’ wallet. The police later located the black Nissan Sentra, which belonged to White, at White’s house in Athens. The police found White and Jackson there and arrested them. Jarrells, Davis, and Burnett pleaded guilty to armed robbery and later testified at Watson’s trial.

1. Watson contends the State’s evidence was insufficient to convict him of the crimes charged as a conspirator because the testimony of his co-defendants shows, at most, that he was merely present during the commission of the crimes, that he had no intent to buy drugs or to steal drugs and money from Oliver, and that, even if the testimony of his accomplices is sufficient to establish his presence and knowing participation in the crimes, their testimony was not sufficiently corroborated.

In felony cases, . . . the uncorroborated testimony of an accomplice is insufficient to authorize conviction. Nevertheless, slight evidence of corroboration connecting the defendant with the crime will suffice, and such evidence may be circumstantial. The sufficiency of the corroboration of an accomplice’s testimony is peculiarly a matter for the jury to determine.

(Punctuation and footnotes omitted.) Smith v. State, 281 Ga. App. 587, 588 (1) (636 SE2d 748) (2006); see also OCGA § 24-4-8. Moreover, “where an additional accomplice provides testimony to corroborate that of the first accomplice, the evidence can suffice to sustain the conviction.” (Citations omitted.) Gallimore v. State, 264 Ga. App. 629, 630 (591 SE2d 485) (2003).

Both Davis and Burnett testified that Watson was present from the robbery’s inception through its execution. While neither Davis nor Burnett stated that Watson had a weapon or went inside Oliver’s house or the garage, the jury could infer from the testimony of both men that Watson was aware of the conspiracy to obtain Oliver’s money and cocaine by armed robbery and that he willingly participated in the crimes and shared the criminal intent of those who committed crimes inside the residence by supplying his car and services to them as a get-away driver. See Bruce v. State, 263 Ga. 273, 274-275 (5) (430 SE2d 745) (1993) (discussing the circumstances under which the intent and acts of the acting conspirators may be imputed to other conspirators, even though other conspirators did not directly commit the acts charged). Further, the testimony of Watson’s accomplices, Burnett and Davis, corroborate each other.

Also, the police found proceeds from the crime in the Ford Explorer as well as tools used in the crime, including bullets and a ski mask. Watson possessed and used the Ford Explorer, as evidenced by documents found inside the car and the testimony of Watson’s mother. Watson’s mother testified that, shortly after the robbery, Watson asked her to report the car stolen, even though the car was in his possession — a fact from which the jury could infer a guilty conscience and an effort to conceal his participation in the robbery. These facts were sufficient to corroborate the testimony of Watson’s accomplices. See King v. State, 268 Ga. App. 811, 813 (1) (603 SE2d 88) (2004). Therefore, Watson’s contention that the evidence was insufficient to establish his participation under a conspiracy theory must fail.

2. Watson contends the evidence was insufficient to convict him of the armed robbery of Boris Oliver because the evidence failed to show that anything of value was taken from Oliver’s person or immediate presence by use of a deadly weapon.

OCGA § 16-8-41 (a) provides: “A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon[.]” Watson contends that, because Oliver denied that cash or cocaine was taken from him and because the evidence concerning where he was when the theft occurred was conflicting, the cash and cocaine was not taken from his “immediate presence.” We disagree.

In this case, Oliver testified that one of Watson’s accomplices forced him at gunpoint through his home and in to the back bedroom closet, during which time the robber demanded money and the contents of a box. Felicia Moon witnessed Oliver and the robber struggling in the closet, and Oliver’s blood was found on the closet floor and on the box in the closet. Jarrells testified that he took a bag of cash and cocaine from Oliver’s closet. Further, according to both Felicia Moon and Oliver, Jarrells also took the $1,500 in cash hidden under Moon’s pillow at gunpoint while both she and Oliver were together in the bedroom. Given this evidence, a jury could find beyond a reasonable doubt that property was taken by use of an offensive weapon from the immediate presence of Oliver and, therefore, that the evidence was sufficient to support Watson’s conviction for the armed robbery of Oliver beyond a reasonable doubt. See Harp v. State, 302 Ga. App. 17, 17-18 (690 SE2d 424) (2010).

3. Watson contends that the trial court’s decision to recharge the jury on the concepts of conspiracy theory and accomplice liability following a question from the jury was confusing and misleading and, therefore, constituted reversible error. Watson does not contend that the recharge misstated the law, but that by refusing to answer the jury’s questions with a recharge instead of a simple “no,” the court deprived him of his defense that he was merely present and not an active participant in the crimes. Further, Watson also contends that his trial counsel was ineffective for failing to object to the trial court’s recharge.

(a) During deliberations, the jury sent a note containing the following questions to the judge: “If guilty of conspiracy to possess cocaine (or any other charge), are they guilty of all charges? If one is guilty of a crime, then are they all guilty of the same crime?” After discussing the questions with the attorneys, the court told the jury that “conspiracy is a legal theory that can apply to any crime. It’s not just to conspiracy to possess cocaine, if you so find.” The court then recharged the jury on the law concerning conspiracy theory and accomplice liability. The court explained that “conviction of one defendant does not necessarily require conviction of another,” that, even if the jury found a conspiracy, it still had to find that “the State has proven that each defendant was or was not in the conspiracy,” and that, while the law may “authorize” a conviction under a conspiracy theory of liability, it never “mandate[s]” it. The court reminded the jury to consider its previous jury charge. The court asked the jury if the recharge answered the questions posed and several jurors nodded their heads. When the court asked if the jury had any other questions, a juror asked a question about crimes of moral turpitude, but no one asked anything further regarding conspiracy.

“As a general rule, the need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court.” (Citation and punctuation omitted.) Cloyd v. State, 237 Ga. App. 608, 610 (3) (516 SE2d 103) (1999). “It is not error to recharge only on the specific question so long as the recharge taken alone does not leave an erroneous impression in the minds of the jury.” (Citation and punctuation omitted.) Id. “To determine whether a recharge is erroneous, we examine the charge as a whole, including both the initial charge and the recharge.” (Citation omitted.) Id.

Here, the judge instructed the jury to consider the entire charge that had been given to it earlier, a charge that thoroughly covered the concepts of knowledge, intent, and mere presence. The judge explained that he was rereading the conspiracy charge because he believed the jury’s question pertained only to that charge. After rereading the conspiracy instruction, the judge asked if the recharge had answered the jury’s question, and by all indications it had. We conclude that the recharge was proper and that it did not overemphasize the State’s theory of the case, that it did not contain a comment on the evidence, and that it did not leave an erroneous impression in the minds of the jurors. See id. Moreover, we agree with the State’s assertion that simply answering “no” to the questions posed would have been a grossly over-simplified and misleading response to the jury’s questions. This is true because the answer to the question necessarily depends upon whether a conspiracy exists, whether Watson was a member of the conspiracy, and whether his actions were naturally or necessarily done in furtherance of the conspiracy. In short, there is no simple “yes” or “no” answer to the questions posed.

(b) By recharging the jury on the concepts of conspiracy theory and accomplice liability as it did, the court correctly and fairly answered the question posed. It follows, therefore, that “counsel’s failure to make a meritless objection to the recharge does not constitute deficient performance.” (Citation omitted.) Mikell v. State, 286 Ga. 722, 724 (2) (b) (690 SE2d 858) (2010). Because Watson failed to show that counsel’s performance was deficient, his claim of ineffective assistance of counsel must fail. See id.

4. Watson contends the court erred in failing to give, sua sponte, both a general venue charge and a special venue charge pertaining to acts that occurred outside the county in which the case was tried.

As a general rule, where there is sufficient evidence of venue and the trial court charges the jury generally on the law of reasonable doubt, it is not necessary for the court to charge the jury that proof of venue is a material allegation of the indictment. However, where the case against the defendant is based upon his activities as a party or conspirator to the crime charged in the indictment and these activities took place in a county other than the one in which the prosecution is brought, a special instruction on venue is necessary to clarify the nature of the criminal activity for which he is on trial.

(Citations omitted; emphasis supplied.) Osborn v. State, 161 Ga. App. 132, 136 (3) (291 SE2d 22) (1982).

The record in this case shows sufficient evidence of venue, and the trial court charged the jury generally on the law of reasonable doubt. Therefore, it was not necessary for the trial court to charge the jury generally that proof of venue is a material allegation of the indictment. Id. Also, the indictment alleged that Watson participated in the criminal scheme with his co-defendants to commit crimes that occurred in Walton County. All of the crimes alleged indisputably occurred in Walton County. Further, the conspiracy to possess cocaine charge required an overt act that occurred in Walton County, that is, that Watson drove his car there. Finally, there was no evidence adduced that a crime was committed by the conspirators in any other county, as was the case in Osborne v. State, supra. Therefore, a special venue charge was not required because, under the facts of this case, it was not possible for the jury to have convicted Watson for activities that took place in a county other than the one in which the prosecution was brought. Id. See also Calloway v. State, 247 Ga. App. 310, 315-317 (3) (542 SE2d 596) (2000). We find no error.

Decided March 28, 2011.

Jennifer A. Trieshmann, for appellant.

W. Kendall Wynne, Jr., District Attorney, David E. Boyle, Anne M. Kurtz, Assistant District Attorneys, for appellee.

Judgment affirmed.

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