text:
    A14A0513.
    EVANS v. THE STATE.
    (761 SE2d 443)
   Miller, Judge.

Following a jury trial, Kelvin Lanier Evans a/k/a Kevin Lee Woods was convicted of one count of entering an automobile (OCGA § 16-8-18) and one count of attempt to enter an automobile (OCGA §§ 16-4-1; 16-8-18). Evans appeals from the denial of his motion for a new trial, contending that the trial court erred in: (1) admitting certain similar transaction evidence; (2) restricting Evans’s voir dire of prospective jurors; and (3) refusing to grant a mistrial after striking evidence of at least five similar incidents from the record. For the reasons that follow, we affirm.

Viewed in the light most favorable to conviction, the evidence shows that on March 18, 2008, Martin Fagan arrived at Joey D’s Oak Room about 7:00 p.m. for a business dinner. The restaurant is located in DeKalb County near Perimeter Mall.

That evening, Fagan was driving his 2002 BMW 5301, he stopped at the restaurant, and he left his Tumi briefcase in the back seat. Fagan’s briefcase contained his Latitude laptop computer, his glasses and some work files. When Fagan returned to his car after dinner, he saw that the rear passenger window was broken and his briefcase and all of its contents were missing. Fagan did not give Evans or anyone else permission to enter his vehicle that night.

On the night in question, Joey D’s had numerous surveillance cameras that recorded video of areas around the restaurant including the parking lot. The cameras showed a white vehicle entering the parking lot and backing into a space next to a Pontiac Firebird. Two men got out of the vehicle and began walking around the parking lot.

One of the men attempted to break the windows of the Firebird. Meanwhile, the other man, who had exited the white vehicle empty handed, ran across the parking lot and returned to the white vehicle with a briefcase in one hand. Both men got back into the white vehicle and sped away from the scene. The still shots taken from the recorded video, which the jury viewed, clearly show the men who committed the crimes.

1. Evans contends that the trial court erred in admitting similar transaction evidence of his involvement in three prior incidents of entering an automobile. We discern no error.

“Uniform Superior Court Rule 31.3 (B) requires the trial court to hold a pretrial hearing to determine the admissibility of any similar transaction evidence the State intends to offer at trial.” Johnson v. State, 289 Ga. 22, 25 (2), n. 2 (709 SE2d 217) (2011). At the pretrial hearing, the State has the burden of showing

that it seeks to introduce the evidence for an appropriate purpose; that there is sufficient evidence to establish that the accused committed the independent act; and that there is a sufficient connection or similarity between the independent act and the crime charged so that proof of the former tends to prove the latter.

(Citations omitted.) Id. at 24 (2). “In assessing the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate act and the crimes in question.” (Citation omitted.) Id. Moreover, “there can be a substantial variation of circumstances where there exists a logical connection between crimes which are essentially dissimilar.” (Punctuation and footnote omitted.) Mattox v. State, 287 Ga. App. 280, 282 (1) (651 SE2d 192) (2007). We review the trial court’s decision to admit similar transaction evidence for any abuse of its discretion and the trial court’s factual findings as to the similarity of the incidents under a clearly erroneous standard. Holloman v. State, 291 Ga. 338, 343 (6) (729 SE2d 344) (2012).

Here, the trial court held a pretrial hearing at which the State proffered evidence of three similar transactions involving Evans for the purpose of showing identity, plan, scheme and bent of mind. The first similar transaction involved a charge of entering an automobile in August 2002 in a Fulton County shopping center located on Peachtree Road. In that case, the State proffered that the victim’s car was broken into and his briefcase was stolen, an officer pulled over a car in which Evans, his co-defendant in this case, and another individual were riding, and the officer found the victim’s briefcase.

The State proffered that the second similar transaction involved the October 2002 theft of multiple laptops and briefcases from cars in the Perimeter Mall area in DeKalb County; resulted in multiple charges which included entering an automobile; and showed a pattern of multiple crimes committed on the same day with the same co-defendant in this case and the same mode of operation — breaking the window and taking laptops and briefcases. The State further proffered that Evans and his co-defendant in this case were found guilty after a jury trial in which an eyewitness positively identified Evans as the person he saw break into a car in a restaurant parking lot. After the eyewitness alerted police, Evans and his co-defendant were found in a shopping center parking lot with the stolen goods.

The State proffered that the third similar transaction occurred in February 2008 in a hospital parking deck; involved the same mode of theft — breaking into the victim’s car by damaging the window and taking goods from the car, including the victim’s Prada purse; and resulted in a guilty verdict at trial. The State further proffered that it planned to offer a video of this incident showing Evans carrying the victim’s purse. The trial court accepted the State’s proffer, and admitted evidence of the three similar transactions over trial counsel’s ongoing objection.

As set forth above, the decision to admit similar transaction evidence is within the trial court’s discretion and that decision will not be disturbed absent an abuse of discretion. See Matthews v. State, 294 Ga. 50, 52 (3) (a) (751 SE2d 78) (2013). Here, the trial court properly concluded that the State introduced the similar transactions for a proper purpose — to show identity, plan, scheme and bent of mind; there was sufficient evidence that Evans committed the independent offenses; there was a sufficient connection or similarity between the independent offenses; and the probative value outweighed the prejudicial effect. Notably, the similar transactions involved crimes that were almost identical to the crimes in this case — the breaking of car windows in parking lots, and the theft of a briefcase, laptop or other items from those cars. Accordingly, there is no evidence to dictate that the trial court abused its discretion in admitting evidence of the similar transactions. See Woods, supra, 275 Ga. App. at 342 (1) (holding that trial court did not abuse its discretion in admitting similar incidents for the purpose of showing identity, plan, scheme, and bent of mind).

2. Evans contends that the trial court erred in prohibiting him from questioning potential jurors to determine if evidence of his prior convictions would prejudice them in evaluating the evidence in this case. We disagree.

With regard to the trial court’s limitation on voir dire, Evans was entitled under OCGA § 15-12-133 to examine the individual jurors as to any matter or thing that would illustrate any bias of the juror in the case. See Stell v. State, 210 Ga. App. 662 (1) (436 SE2d 806) (1993). However, hypothetical questions involving evidence, such as the question in this case, that would require a response from a juror that might amount to a prejudgment of the case are improper and should be excluded from voir dire. See id.; see also Anderson v. State, 236 Ga. App. 679, 682 (3) (513 SE2d 235) (1999) (prejudgment questions may not be asked in voir dire). Accordingly, the trial court did not err in prohibiting defense counsel’s examination of the prospective jurors regarding their possible reaction to Evans’s prior convictions.

3. Evans contends that the trial court should have granted his motion for a mistrial after striking evidence of other incidents of entering automobiles. We do not agree.

After the State rested its case, Evans moved for a mistrial based on the trial court’s admission of the August 2002 and the February 2008 similar transactions, arguing that the evidence presented by the State during trial differed from the State’s pretrial proffer. The trial court struck the evidence from the February 2008 similar transaction. The trial court denied Evans’s motion for a mistrial, and ruled that evidence of the first two similar transactions in August 2002 and October 2002 were admissible.

Evans then moved for a directed verdict on four of the eight counts charged in Evans’s indictment. The trial court granted Evans’s motion for a directed verdict on Counts 2,4, 5, and 8 of the indictment, finding that there was insufficient evidence to justify a finding beyond a reasonable doubt that Evans committed those offenses. The trial court then denied Evans’s renewed motion for a mistrial, and, without objection, instructed the jury to disregard evidence of the additional counts which resulted in directed verdicts, as well as the evidence of the third similar transaction. The circumstances of this case do not show that the trial court abused its discretion in denying Evans’s motion for a mistrial.

“The decision to grant a mistrial is within the discretion of the trial court and will not be disturbed on appeal unless there is a showing that a mistrial is essential to the preservation of the right to a fair trial.” (Citation omitted.) Jackson v. State, 292 Ga. 685, 689 (4) (740 SE2d 609) (2013); see also Norwood v. State, 252 Ga. 292, 294 (3) (313 SE2d 98) (1984) (denial of mistrial does not constitute grounds for reversal unless mistrial is mandated to ensure fair trial). Prejudice in the minds of the jury cannot be assumed merely because the trial court grants a directed verdict on some of the charged crimes. See Harbin v. State, 193 Ga. App. 248, 251 (5) (387 SE2d 367) (1989).

Decided July 8, 2014.

Gerard B. Kleinrock, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

Here, the trial court’s instruction to the jury to disregard evidence of the third similar transaction and the counts on which the trial court directed a verdict was sufficient to correct any error in admitting this evidence during the State’s case-in-chief. See Rucker v. State, 293 Ga. 116, 121 (2) (744 SE2d 36) (2013) (curative instruction sufficient to correct any error); Dulcio v. State, 292 Ga. 645, 648 (2) (740 SE2d 574) (2013) (no abuse of discretion in failing to grant mistrial where trial court instructed jury to disregard stricken comments). Moreover, the fact that the jury acquitted Evans on one of the three remaining counts showed that the jurors were not prejudiced by evidence of the other crimes. See Smith v. State, 271 Ga. 507, 508 (3) (521 SE2d 562) (1999) (lack of apparent prejudice where jury acquitted defendant on malice murder and convicted instead on felony murder). Accordingly, Evans has not shown that a mistrial was essential to the preservation of his right to a fair trial.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

       The jury acquitted Evans of one additional count of entering another automobile, the trial court directed a verdict for Evans on four counts, and the State nolle prossed the remaining count.

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

       This case was tried under the old Evidence Code. Under the new Evidence Code, the provisions governing the admission of similar transaction evidence have changed. See OCGA § 24-4-404 (b). These changes, however, are applicable to cases tried after January 1, 2013. See Ga. L. 2011, p. 99, § 101.

       As more fully set forth in Division 3 below, the trial court during Evans’s trial struck the evidence of the third similar transaction, and Evans moved for a mistrial. The trial court denied Evans’s motion, but instructed the jury to disregard the evidence of the third incident.

       Although the Fulton County incident was eventually dead docketed, “[i]t is well settled that there need not he a criminal charge or conviction relating to a similar offense for it to be admissible.” (Citations and punctuation omitted.) Hill v. State, 298 Ga. App. 677, 680 (2) (680 SE2d 702) (2009).

       The second similar transaction involved Evans’s conviction under his alias Kevin Lee Woods. See Woods v. State, 275 Ga. App. 340 (620 SE2d 609) (2005) (affirming Evans’s convictions on two counts of entering an automobile).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A14A0597.
    BRASHER v. US XPRESS ENTERPRISES, INC.
    (761 SE2d 448)
   Miller, Judge.

Ronald Brasher was injured during the course of his employment with US Xpress Enterprises (“US Express”) and filed a claim for workers’ compensation benefits. Following a hearing, an administrative law judge (“ALJ”) of the State Board of Workers’ Compensation (the “Board”) awarded Brasher temporary total disability (“TTD”) benefits for the period between March 21, 2012 and April 5, 2012; denied Brasher additional benefits based on his refusal of light-duty work; appointed a treating physician; and ordered US Express to pay for treatment. After the Appellate Division of the Board adopted the ALJ’s award, Brasher appealed to the superior court. As a result of the superior court’s failure to enter a timely decision, the Appellate Division’s award was affirmed by operation of law. See OCGA § 34-9-105 (b). We granted Brasher’s application for discretionary appeal.

On appeal, Brasher contends that: (1) he was entitled to choose his own physician rather than have one appointed for him and have the expenses paid for by US Express because it failed to conform to OCGA § 34-9-201 (c) and (f); (2) the Board erred in finding that the light-duty job that he was offered was suitable and that his reasons for refusing the job were unjustified; (3) the Board erred in failing to award additional TTD benefits; (4) the Board erred in failing to assess a 15 percent late penalty; and (5) the Board violated his due process and equal protection rights. For the reasons that follow, we affirm in part and reverse in part.

On appeal from an award of the Appellate Division of the State Board of Workers’ Compensation, this Court examines the record to see if there is competent evidence to support the award and construes the evidence in a light most favorable to the prevailing party. Further, it is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this Court has any authority to substitute itself as a fact finding body in lieu of the Board.

(Citation and punctuation omitted.) Ready Mix USA v. Ross, 314 Ga. App. 775 (726 SE2d 90) (2012). “However, erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, are subject to the de novo standard of review.” (Citation omitted.) Renu Thrift Store v. Figueroa, 286 Ga. App. 455, 456 (649 SE2d 528) (2007).

So viewed, the evidence shows that Brasher began working as a long-haul truck driver for US Express on July 15,2010. On March 18, 2012, Brasher left the US Express terminal in Atlanta and drove to Rome to pick up a load. Brasher was turning a steel crank in order to connect his truck to a pre-loaded trailer when a leg of the trailer lowered suddenly, causing the crank to spin and strike him about the chest, back, neck and head. Brasher was taken by ambulance to Floyd Medical Center’s emergency room, where he was examined and released to return to work with directions to see a doctor within 24 hours. After being discharged, Brasher drove to the US Express terminal in Atlanta. When he arrived in Atlanta, the fleet manager told Brasher to talk to the terminal site manager if he needed further medical care. The next morning, Brasher complained of numbness in the arms and face to US Express’s workers’ compensation analyst Penny Norris and asked for medical treatment. Norris advised that “due to the E.R. records I had which gave him no follow up and cleared him, I couldn’t do anything further.” Norris further stated that the claim had been turned over to the company’s insurer and gave Brasher contact information so that he could follow up with the insurer. That same day, Brasher went to an urgent care center but received no treatment.

On March 21, 2012, Brasher went to and was treated at an urgent care center in Atlanta, and was diagnosed with a cervical strain, contusions of the thorax, face, scalp, and chest wall, and neuropathy in his face and upper arm. The doctor prescribed Brasher pain medication and placed him on modified work activity, including restrictions on driving, reaching, squatting, lifting or pushing more than five pounds, and prolonged walking or standing. The urgent care doctor urged Brasher to contact the ER if his condition worsened and to consider “ortho or neuro after [his] next visit.” Brasher returned to urgent care on March 23, 2012. Following an examination, the doctor continued Brasher’s work restrictions, including no lifting, pushing, or pulling of any weight, no reaching above the shoulders, no squatting or kneeling, and no prolonged standing or walking. Brasher was also given an urgent referral to see an orthopedic surgeon due to decreased upper extremity strength. Brasher returned to urgent care on March 27, 2012, and he was further ordered to limit the use of his arms. On April 3, 2012, Brasher visited an urgent care center in Columbus, and his work restrictions were continued.

Brasher then returned home to Opelika, Alabama because he had been sleeping in a lounge chair at the US Express terminal. Thereafter, US Express offered Brasher a light-duty position at their terminal in Tunnel Hill. On or about April 5, 2012, US Express provided Brasher with a bus ticket to Tunnel Hill. When Brasher reported to work, he asked his site manager and, later, Norris for a $25 advance to purchase food to take with his medications. Brasher’s requests were refused. After approximately five hours of work, Brasher told the site manager that he was not going to stay on the job and “starve to death.” Brasher was given a bus ticket home after signing a form declining the job due to financial reasons. Brasher has not worked since April 9, 2012, although the light-duty job remains available to him.

Brasher filed a notice of claim with the Board on May 17, 2012, seeking temporary total disability benefits starting on March 18, 2012, authorization for medical treatment, and attorney fees and penalties.

After filing his notice, Brasher made several more visits to urgent care. After a July 12, 2012 follow-up, the urgent care doctor requested, but did not obtain approval for, an MRI. Brasher also saw Dr. Empting of the Independent Neurodiagnostic Clinic in April 2012, and Dr. Empting diagnosed Brasher with a host of spinal problems and limited him to sedentary activity. Brasher visited Dr. Empting a few more times with no change in his restrictions.

In September 2012, Brasher saw Dr. Dorchak,' his former orthopedic surgeon. Dr. Dorchak diagnosed cervical and thoracic strains and recommended MRIs to rule out disk herniation and an occult fracture. Dr. Dorchak released Brasher to sedentary duty.

After a hearing on September 25, 2012, the ALJ concluded that: Brasher was entitled to receive income benefits from March 21, 2012 through April 5, 2012; Brasher was not entitled to further benefits because the light-duty job assigned to him after his injury was appropriate, the job remained available, and Brasher’s reasons for quitting were not credible; and US Express was obligated to provide Brasher with medical treatment for his injuries, including medical treatment provided by Dr. Dorchak whom the ALJ appointed as an authorized treating physician. The ALJ declined to award fees, concluding that both parties had presented colorable arguments to support their claims.

Brasher appealed the ALJ’s decision to the Board, which adopted the ALJ’s findings of fact and conclusions of law. Brasher then appealed this decision to the superior court, which conducted a hearing. The superior court did not issue an opinion within 20 days of the hearing, and thus the Board’s decision was affirmed by operation of law. OCGA § 34-9-105 (b), (d).

1. Brasher contends that the Board erred in affirming the ALJ’s decision to appoint Dr. Dorchak as a treating physician for him, because the relevant statutes authorized him to select his own physician based on US Express’s failure to provide timely medical care or to post a panel of authorized physicians. We agree.

OCGA § 34-9-200 (a) requires an employer to furnish the injured employee with medical treatment that is reasonably required, and OCGA § 34-9-201 (b) (1) allows the employer to satisfy that requirement by maintaining a list of six physicians from which an employee may accept services. Under OCGA § 34-9-201 (c), an employer is required to post a panel of physicians in a prominent place and ensure that employees understand the function of the panel and their right to choose a doctor from that list in the event of an on-the-job injury. If the employer fails to provide any of the procedures for selection of physicians as set forth in OCGA § 34-9-201 (c), an employee may select any physician to render service at the expense of the employer. OCGA § 34-9-201 (f).

Here, there is no evidence in the record that US Express posted a panel of physicians, gave Brasher appropriate assistance in contacting a physician on the panel, or informed Brasher of his right to select a panel physician following his injury. Rather, when Brasher contacted US Express’s workers’ compensation analyst the day after his injury, the analyst offered Brasher no assistance. Moreover, Brasher was turned away from attempts to receive treatment from urgent care and from his general practitioner because his injuries were work-related. Since US Express did not follow the procedures for the selection of physicians as set forth in OCGA § 34-9-201 (c), Brasher was entitled to choose his treating physician, and US Express is responsible for the medical bills incurred from these visits and other unpaid medical bills. See OCGA § 34-9-201 (f); Boaz v. K-Mart Corp., 254 Ga. 707, 710 (1) (334 SE2d 167) (1985) (“[I]f the employer does not adequately meet the duty of providing treatment the employee may make other arrangements and once treatment by a physician is undertaken an employer may not change positions and cut off the right to continue such treatment.”). Since OCGA § 34-9-201 (f) clearly provides that Brasher was entitled to select his treating physician, the ALJ erred when it sua sponte appointed Dr. Dorchak as Brasher’s treating physician.

2. Brasher also contends that the Board erred in affirming the ALJ’s finding that the light-duty job was suitable to his capacity and that Brasher was not justified in refusing it pursuant to OCGA § 34-9-240. We disagree.

The testof OCGA § 34-9-240 is two-pronged. The [Bjoard must first determine whether the employment offered by the employer and refused by the employee is suitable to the capacity of the employee. If the [Bjoard finds that the proffered employment is suitable within the meaning of the statute, the employee is not entitled to compensation during the continuance of his refusal to work unless in the opinion of the [Bjoard such refusal was justified.

(Citation omitted.) Martines v. Worley & Sons Constr., 278 Ga. App. 26, 28 (628 SE2d 113) (2006). “Suitable to his capacity” refers to the employee’s capacity or ability to perform the work within his physical limitations or restrictions. City of Adel v. Wise, 261 Ga. 53, 55 (401 SE2d 522) (1991).

(a) Contrary to Brasher’s arguments, the evidence supports the Board’s findings that the light-duty job offered to Brasher was appropriate and remains appropriate for his limitations. The light-duty job offered to Brasher involved working in the terminal guard shack and checking that US Express’s drivers were wearing their seatbelts. The evidence shows that US Express offered that position in compliance with the limitations noted by Brasher’s medical providers because it did not involve any lifting, prolonged standing or walking, pushing or pulling, reaching above shoulders, or squatting or kneeling. Consequently, the evidence supports the Board’s determination that the light-duty position was suitable to his capacity.

(b) Brasher further argues that he was justified in refusing the light-duty job offered to him because the position required relocation and because he had no money to buy food to take with the medications he was prescribed for his injury, and the Board erred in finding him not credible as to this issue. We disagree.

For a refusal to be justified, it “must relate to the physical capacity of the employee to perform the job; the employee’s ability or skill to perform the job; or factors such as geographic relocation or travel conditions which would disrupt the employee’s life.” (Punctuation omitted.) City of Adel, supra, 261 Ga. at 56. It is axiomatic that the weight and credibility of a party’s testimony is determined solely by the ALJ and the Board. Young v. Columbus Consolidated Govt., 263 Ga. 172, 173 (1) (430 SE2d 7) (1993).

Although Brasher contends that he was justified in refusing to continue the position because he did not have enough money to buy food to take with his medication, the ALJ found Brasher’s testimony on this issue to be not credible. Despite Brasher’s claim that he would “starve to death” if he did not quit the light-duty position, the evidence shows that US Express provided Brasher with a hotel that included breakfast, and that Brasher’s supervisor also offered to buy him lunch for four days. Further, Brasher testified that he was frustrated with the light-duty position because his injury prevented him from sitting for eight hours a day and he wanted to stand and move around. The evidence shows, however, that Brasher was told that he could stand and move around in the guard shack.

Additionally, while Brasher argues that the relocation disrupted his life based on evidence that the bus ride from his home in Alabama to Tunnel Hill took 15 hours, he testified that the bus got stuck in Atlanta and did not depart for several hours. Furthermore, Brasher’s own testimony established that, prior to his injury, he was a long-haul truck driver, which required him to travel across the country. Therefore, Brasher was accustomed to long periods away from home. Based on these record facts, the ALJ was authorized to conclude that Brasher’s reasons for quitting were not credible and that his refusal to work was not justified.

3. Brasher contends that the Board erred in affirming the ALJ’s failure to order payment of additional TTD benefits based on an urgent care medical report dated July 11, 2012 that indicated “no activity.” We disagree.

“In all claims for compensation, it is necessary for the claimant to carry the burden of proof in order to establish [his] claim for compensation.” (Citation and punctuation omitted.) Scandrett v. Talmadge Farms, Inc., 174 Ga. App. 547, 548 (1) (330 SE2d 772) (1985). As noted by the ALJ, the phrase “no activity,” without any specific reference to Brasher’s ability to work, is ambiguous, as it could be referring to Brasher being physically inactive or in an inactive status with respect to current treatment at the urgent care facility. The urgent care report prior to the July visit at issue listed specific restrictions, including no pushing or pulling of any weight, no reaching above shoulders, no squatting or kneeling, and limited arm use. Moreover, following a September 4, 2012 examination, Dr. Dorchak released Brasher to sedentary duty. Therefore, the evidence supported the ALJ’s determination that Brasher failed to carry his burden of proof in order to establish his claim of compensation based on the July 12, 2012 urgent care report.

Consequently, since the light-duty position remained available to Brasher, the ALJ was authorized to conclude that Brasher had established that he was entitled to benefits only for the period from March 21, 2012, the date of his first urgent care visit, through April 5, 2012, the day before he started his light-duty job, and that he was not entitled to any additional benefits.

4. Brasher next argues that the Board abused its discretion by failing to award a 15 percent penalty on unpaid TTD benefits. US Express concedes, and we conclude, that Brasher was entitled to a 15 percent penalty under OCGA § 34-9-221 (e), because the employer did not pay the benefits when due. US Express nevertheless argues that the issue is moot because it has already paid Brasher the full income benefits from March 21, 2012 through April 5, 2012, plus a 15 percent penalty. Evidence of these payments, however, is not in the record on appeal. It is well established that “[a]negations of facts appearing only in the briefs and unsupported by evidence in the record will not be considered on appellate review.” (Punctuation and footnote omitted.) Abdelaal v. Greens at Windy Hill, 285 Ga. App. 367, 369 (646 SE2d 474) (2007). Consequently, Brasher is entitled to a 15 percent penalty.

Decided July 8, 2014.

Morgan & Morgan, Ronald C. Conner, for appellant.

Richter, Head, Shinall & White, David H. White, Christopher A. Quin IV, for appellee.

5. In his final enumeration, Brasher contends that the Board’s erroneous application of workers’ compensation law deprived him of his due process and equal protection rights. We disagree.

Brasher does not specify how his due process rights were violated. Rather, his argument appears to be based on the outcome of his case. “The constitutionally-guaranteed right to due process of law is, at its core, the right of notice and the opportunity to be heard.” (Citation omitted.) Cobb County School Dist. v. Barker, 271 Ga. 35, 37 (2) (518 SE2d 126) (1999). There is no dispute that Brasher had notice and a full hearing on his claims, where he had the opportunity to present his own evidence and cross-examine his employer’s witness. Consequently, Brasher’s due process rights were not violated.

With respect to Brasher’s equal protection claim, arguments relating to alleged unfair disparity in workers’ compensation cases are matters to be addressed by the General Assembly and not to the judiciary. Ga. Self-Insurers Guar. Trust Fund v. Thomas, 269 Ga. 560, 562 (501 SE2d 818) (1998).

In conclusion, we reverse the Board’s order to the extent it appointed Dr. Dorchak as Brasher’s treating physician, rather than allowing Brasher to select his own physician, and failed to assess a 15 percent penalty on US Express for not paying benefits when due. We affirm the Board’s order to the extent it concluded that Brasher was only entitled to benefits from March 21, 2012 to April 5,2012 because the evidence supported its findings that the light-duty job offered to Brasher was suitable and that his refusal of that job was unjustified. We also reject Brasher’s claim that his due process or equal protection rights were violated.

Judgment affirmed in part and reversed in part.

Doyle, P. J., and Dillard, J., concur.

       The superior court subsequently entered an untimely order affirming the Appellate Division’s award.

       Brasher initially filed a WC-14 notice of claim form with the Board on April 9, 2012, hut did not request disability benefits, authorization for medical treatment or attorney fees and penalties.


author: Branch, Judge.

text:
    A14A0622.
    WEDEL v. THE STATE.
    (761 SE2d 454)
   Branch, Judge.

James Wedel was tried by a Cherokee County jury and found guilty of one count of child molestation. Wedel now appeals from the denial of his motion for a new trial, arguing that the trial court decided his lawyer’s motion to withdraw during an informal hearing from which Wedel was absent, and that this conduct violated his constitutional right to be present at all critical stages of the proceedings against him. We find no error and affirm.

Where, as here, an appeal from the grant or denial of a motion for a new trial involves a mixed question of law and fact, we employ two different standards of review. We review de novo the trial court’s decision as to any questions of law, while applying the clearly erroneous standard of review to any factual findings made by that court. State v. Wakefield, 324 Ga. App. 587 (751 SE2d 199) (2013). “In Georgia, it is well-settled that the ‘clearly erroneous’ standard for reviewing findings of fact is equivalent to the highly deferential ‘any evidence’test.” Reed v. State, 291 Ga. 10, 13 (3) (727 SE2d 112) (2012) (citations omitted). Thus, we will uphold the trial court’s factual findings if there is any evidence to support them, and we defer to the trial court’s credibility determinations. See Cruz v. State, 305 Ga. App. 805, 808-809 (2) (700 SE2d 631) (2010) (“[i]t is the function of the trial court at the hearing on the motion for new trial to determine witness credibility and to resolve any conflicts in the testimony”) (citation, punctuation and footnote omitted).

The relevant evidence in this case consists of the transcript of the hearing on Victor Reynolds’s motion to withdraw as Wedel’s attorney and the testimony received at the hearing on Wedel’s motion for a new trial. The record shows that following his arrest, Wedel retained Marietta attorney Victor Reynolds to represent him. Reynolds and Wedel were personal friends, with Wedel, his brother, and his brother’s wife having done work for Reynolds at his home. After discovering that he knew the alleged victim (who was the stepdaughter of Wedel’s brother), Reynolds associated attorney Jimmy Berry, with whom Reynolds shared office space, to assist him with the representation of Wedel. The case was specially set for trial on August 22, 2011. On the day before trial, Reynolds met with members of Wedel’s family at his office, who provided Reynolds with clothes for Wedel, who was incarcerated, to wear at trial. Wedel’s girlfriend specified which of the clothes the attorneys should provide to Wedel for the first day of trial.

The following morning, Reynolds and Berry took the designated clothes with them into the Cherokee County courthouse and gave them to deputies, who were then to give the clothes to Wedel. A short time later, however, the deputies informed Reynolds, Berry, and the assistant district attorney trying the case that potential contraband had been found in the jacket pocket of the suit the attorneys had provided for Wedel. Two agents from the Cherokee County narcotics squad then interviewed Reynolds and Berry and informed the lawyers that they were seeking a search warrant for the remaining clothes located in their legal office. Reynolds, Berry, and the prosecutor then went to the chambers of the judge scheduled to preside at trial to inform him of these developments. Wedel was not present at that meeting, which was not recorded or transcribed.

Shortly after the in-chambers meeting, court convened with all attorneys and Wedel present. At the outset of the court proceedings, Reynolds stated on the record the events of that morning and concluded by saying, “I’ve been placed in — in minimally a very difficult position in continuing to represent Wedel,” and moved to withdraw from the case. The trial judge then noted for the record how he had learned of the morning’s events concerning the discovery of the alleged contraband, that he had met with the attorneys in chambers prior to court, and that during the conversation in chambers, Reynolds had indicated he wanted to withdraw from representing Wedel. The trial judge stated on the record that after Reynolds proposed withdrawing from the case, the judge “made some suggestions about possible options,” and told Reynolds and Berry “to think about” those options and to speak with Wedel. After summarizing what had transpired in chambers, the judge asked the lawyers for both Wedel and the State if any of them knew of any additional information “concerning our conversation back in chambers” that needed to be placed on the record. The judge further stated: “I want to hear from [Wedel] whether there’s any problem that [the] conversation [occurred] outside his presence. ... I want to make sure there’s no issue about anything being discussed outside his presence.” Reynolds responded that he and Berry had spoken with Wedel and “advised him of the substantive nature” of the conversation that had occurred in chambers. The State responded that the description of the conversation given by the court was “a complete assessment of that meeting.”

At this point in the proceedings, Berry asked the court if Reynolds was going to be allowed to withdraw. The judge indicated no decision had been made, saying: “I’m going to ask [Wedel] and then I’m going to go step by step [through] some of the things we discussed.” The judge reiterated, however, that before he addressed the question of withdrawal, he wanted “to make sure there is not any problem about the fact of our having discussed [the situation] without [Wedel] being present.” The judge therefore asked once more if there was anything either party wanted to place on the record regarding the in-chambers meeting “before I inquire of Mr. Wedel about Mr. Reynolds’ withdrawing. Anything else?” When the parties offered no additional information, the court spoke directly to Wedel, telling him: “Mr. Reynolds . . . has said he wants to withdraw. Do you have a problem with that?” Wedel responded, “My preference is to retain both [attorneys] as previously planned. And I assume full responsibility for having a Valium tablet.” The trial court cautioned Wedel not to make any remarks about the contraband and again asked whether he had any objection to Reynolds’s proposed withdrawal from the case. Wedel reiterated his desire to proceed with both attorneys representing him. The court thereafter indicated its inclination to grant Reynolds’s motion and asked Wedel if he had “[a]nything else” he wanted to say about the subject. Wedel responded that he had nothing else to say.

The trial judge then asked the State to make an offer of proof as to how the pill had been discovered and as to whether there was any possibility that the pill had been in Wedel’s clothes by accident. The judge further stated that he wanted to hear such proof “before I decide whether to let... Mr. Reynolds withdraw.” The prosecutor then stated in her place that phone calls at the Cherokee County jail, where Wedel was incarcerated, were recorded and sometimes monitored; that on the previous weekend Wedel was heard asking his girlfriend to place a pill in the clothing he would be provided for trial “so that he could relax a little bit and be able to focus on the trial”; that based on this conversation the deputies had been careful to search Wedel’s clothing after receiving it from his attorneys that morning; and that during the search, deputies had discovered what they suspected was a Xanax tablet in the interior breast pocket of Wedel’s suit jacket. After hearing this offer of proof, the trial court granted Reynolds’s motion to withdraw.

The case thereafter proceeded to trial with Berry acting as Wedel’s sole lawyer. Following his conviction, Wedel filed a motion for a new trial, arguing, among other things, that the trial judge had heard and decided Reynolds’s motion to withdraw during the in-chambers meeting from which Wedel was absent. Wedel asserted that the trial court had therefore violated his constitutional right to be present at all critical stages of the proceeding against him. At the hearing on Wedel’s motion, Berry testified that when he left the chambers of the judge on the morning of trial, it was his understanding that he would be trying the case alone, without Reynolds. Berry explained that “after [Reynolds] told the judge he wanted to withdraw, I knew it was going to fall on me.” He further testified that following the meeting in chambers, Reynolds and he had met with Wedel to discuss the situation with their client. As best Berry could recall, Reynolds indicated to Wedel that “he was withdrawing no matter what.” There was no testimony by Berry as to whether the lawyers explained to Wedel that the ultimate decision about Reynolds’s withdrawal would be made by the trial court.

Reynolds testified that at the meeting in chambers, he told the judge that he was “extremely aggravated” and that he wanted to withdraw from his representation of Wedel. According to Reynolds, the judge responded that he wanted to go to the courtroom and “get everything on the record.” The judge suggested that perhaps Berry could try the case with Reynolds sitting in close proximity to act as an advisor, and Reynolds took this as an indication that the judge would grant the motion to withdraw. Reynolds also stated that during the subsequent meeting with Wedel, he told Wedel that he was going to withdraw from the case.

The trial court denied Wedel’s new trial motion, finding, in relevant part, that “there was no hearing, no testimony, and there were no rulings” that took place in Wedel’s absence. In its written order, the court observed, “[a]s is usual for this trial judge, suggestions were made in chamber's about ways to work around” the situation presented by the discovery of the contraband and Reynolds’s expressed desire to withdraw from the case. The court further noted, however, that the transcript of the hearing on the motion to withdraw and the testimony at the hearing on the motion for new trial showed that “no final ruling or decision was made while in chambers.” On appeal, Wedel argues that a hearing on Reynolds’s motion to withdraw from his representation of Wedel on the eve of trial was a critical stage of the proceedings against him, and that the trial court violated his right to be present at that proceeding by deciding that motion in chambers.

Under both the Georgia and the federal constitutions, a criminal defendant has the “right to be present at all critical stages of his trial.” Fair v. State, 288 Ga. 244, 260 (3) (702 SE2d 420) (2010) (citation omitted). “[T]he right to be present attaches ‘at any stage of [a] criminal proceeding that is critical to its outcome if the defendant’s presence would contribute to the fairness of the procedure.’ Kentucky v. Stincer, 482 U. S. 730, 745 (107 SCt 2658, 96 LE2d 631) (1987).” Huff v. State, 274 Ga. 110, 111 (2) (549 SE2d 370) (2001). The Supreme Court of Georgia “has determined that a critical stage in a criminal prosecution is one in which a defendant’s rights maybe lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way.” Id. (citation and punctuation omitted). Nevertheless, a defendant’s right to be present during a critical stage “may be waived if the defendant later acquiesces in the proceedings occurring in his absence.” Jackson v. State, 278 Ga. 235, 237 (3) (599 SE2d 129) (2004) (citation and punctuation omitted). See also Brown v. State, 310 Ga. App. 285, 290 (6) (e) (ii) (712 SE2d 521) (2011) (defendant waived right to claim that his absence from proceedings was error where he was fully informed of the proceedings that occurred in his absence and acquiesced in those proceedings).

Decided July 8, 2014 —

H. Maddox Kilgore, for appellant.

Shannon G. Wallace, District Attorney, Holly L. Varner, Cliff Head, Assistant District Attorneys, for appellee.

Here, evidence was presented at the hearing on the motion for new trial that supported the court’s conclusion that the trial court did not rule on Reynolds’s withdrawal motion until after court had been convened and Wedel was present. The record also shows that the judge went to great lengths to get all of the information about what had transpired at the in-chambers meeting on the record in Wedel’s presence; that the judge repeatedly asked Wedel if he had a problem with the fact that a discussion about the situation occurred without Wedel being present; and that neither Wedel nor Berry objected. Under these circumstances, Wedel waived the right to claim that his absence was error. See, e.g., Wilson v. State, 274 Ga. 637, 639 (3) (555 SE2d 725) (2001) (defendant acquiesced in the proceedings when, following an in-chambers conference held in defendant’s absence at which the court ruled on a motion in limine, when the motion and the court’s ruling were subsequently discussed at length by all parties in defendant’s presence without objection by defense counsel and without comment by defendant); Brown, 310 Ga. App. at 290 (6) (e) (ii).

Judgment affirmed. Barnes,

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

       OCGA § 16-6-4 (a). The jury also acquitted Wedel of one count of aggravated sexual battery.

       Eventually it was decided that Berry would conduct voir dire and would cross-examine three of the State’s seven witnesses, including the victim.

       Wedel does not challenge as improper the grant of Reynolds’s motion to withdraw from Wedel’s case.


author: RAY, Judge.

text:
    A14A0660.
    THE REVOCABLE TRUST OF TIMOTHY W. GRIFFIN et al. v. TIMBERLANDS HOLDING COMPANY ATLANTIC, INC.
    (761 SE2d 458)
   RAY, Judge.

The Revocable Trust of Timothy W. Griffin and Timothy W. Griffin, individually and as trustee of the aforementioned trust (collectively “Griffin”), appeal the trial court’s grant of summary judgment upholding Timberlands Holding Company Atlantic, Inc.’s (“Timberlands”) claim of prescriptive easement over Griffin’s property. Asserting error, Griffin appeals. For the reasons that follow, we reverse.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. The movant has the original burden of making this showing. Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence. In rebutting this prima facie case, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in OCGA § 9-11-56, must set forth specific facts showing that there is a genuine issue for trial. A defendant may meet its burden on a motion for summary judgment by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. Our review is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations, punctuation and emphasis omitted.) Glatfelter v. Delta Air Lines, 253 Ga. App. 251, 252 (2) (558 SE2d 793) (2002).

The evidence shows that Griffinbought an approximately 91-acre tract of land in Wilcox County from Jesus Brito in October 2011. Timberlands and its predecessor, Rayonier Forest Resources, L.P., had been using an access road that runs east-west across the tract for some years. After purchasing the tract, however, Griffin erected a gate and communicated that access along the road would not be permitted. Timberlands’ predecessor sued Griffin claiming a prescriptive easement, then moved for summary judgment. After a hearing, which was not transcribed, the superior court granted Timberlands’ motion for summary judgment, and Griffin appeals.

Prescriptive rights are to be strictly construed, and the prescriber must give some notice, actual or constructive, to the landowner he intends to prescribe against. OCGA § 44-9-54 provides that a private way, that is, “a right of ingress and egress over the land of another,” may be established by prescription in the following manner: Whenever a private way has been in constant and uninterrupted use for seven or more years and no legal steps have been taken to abolish it, it shall not be lawful for anyone to interfere with that private way. In order to establish a private way by prescription, the petitioner must also show that the private way did not exceed 20 feet in width, that the use continued along the same route without shifting from one path to another, and that the prescriber kept the way open and in repair during the period of prescription. If the prescriber fails to show any of these elements necessary to establish prescriptive title, he cannot recover.

(Punctuation and footnotes omitted; emphasis supplied.) Yawn v. Norfolk Southern R. Co., 307 Ga. App. 849, 851-852 (2) (706 SE2d 197) (2011). In addition to showing that the private way does not exceed twenty feet in width, the prescriber also must show “that it is the same twenty feet originally appropriated.” (Footnote omitted.) Moody v. Degges, 258 Ga. App. 135, 137 (573 SE2d 93) (2002).

1. Griffin argues that the trial court erred in its determinations related to the width of the private way.

OCGA § 44-9-40 (a) provides, in pertinent part:

The superior court shall have jurisdiction to grant private ways to individuals to go from and return to their property and places of business. Private ways shall not exceed 20 feet in width and may be as much less as the applicant may choose or as the court may find to be reasonably necessary. . . .

(Emphasis supplied.) “[T]he private way could not exceed ... twenty feet in width[.]... [T]he burden is on the prescriber to show that it did not exceed the width permitted.” (Citations omitted; emphasis supplied.) Bedingfield v. McCullough, 106 Ga. App. 759, 760 (128 SE2d 374) (1962). See also Yawn, supra.

(a) First, Griffin contends that the trial court made a factual error when it determined that Timberlands provided evidence that the access road “did not exceed twenty feet in width during the prescriptive period.” Specifically, Griffin asserts that the evidence supplied by Timberlands shows merely that the prescriptive use of the roadway — rather than the actual width of the road itself— was 20 feet or less. We agree.

In its complaint, Timberlands seeks a 20-foot-wide easement, which OCGA § 44-9-40 gives the superior court jurisdiction to grant provided the other elements of a prescriptive easement are met. However, Timberlands has presented evidence only as to the width of its use, not as to the width of the roadway.

Timberlands offered evidence in the form of an affidavit from Chad Lamb, a resource land manager for Timberlands’ predecessor, Rayonier, that “From early 2000 through mid-2011 Rayonier’s use of the Access Road continued along this same path of less than 20 feet in width without shifting.” (Emphasis supplied.) The prior owner, Brito, stated in an affidavit that Rayonier and its predecessor “adversely used the same twenty (20) feet of access road[.]” (Emphasis supplied.) Also, Clifton McCranie, a crewman for Rayonier, stated in an affidavit that he worked for Rayonier from 1971 to 2009; that he performed repairs on the access road; and that he was “familiar with the Rayonier property illustrated” in a survey dated August 20, 2012. This survey delineates the access road’s width as 20 feet, but the survey post-dates the prescriptive period. McCranie’s affidavit does not state whether he is “familiar” with the road as it appeared during the prescriptive period or at the time the survey was made. Timber-lands urges us to use McCranie’s affidavit to infer that this later survey indubitably represents the width of the roadway during the prescriptive period. We cannot make such an inference on Timber-lands’ motion for summary judgment, however, as we must view all reasonable inferences in favor of Griffin as the nonmovant. Glatfelter, supra. Thus, Timberlands has failed to show the width of the roadway and has failed to meet one of the required elements to show a prescriptive easement. Yawn, supra. McCranie’s affidavit and the accompanying survey present a fact question for the jury.

(b) Griffin contends that the trial court made a legal error when it determined that Timberlands’ showing that “use of the Access Road continued along the same path of twenty feet or less” (emphasis supplied), satisfied the width requirement for a prescriptive easement. Griffin contends that the width of the actual roadway, not the width of use, is the determinative factor. We agree.

Our Supreme Court decided Church v. York, 212 Ga. 135, 135-136 (91 SE2d 9) (1956) based on the width of the roadway. The predecessor statute to OCGA § 44-9-40 (a) at issue in Church required that a private way not exceed 15 feet in width. In Church, our high court recognized that where a party sought a prescriptive easement over a “right of way [that] is over 15 feet in width, and at some places approximately 30 feet in width[,]” because “[t]he evidence shows without dispute that the relocated way is at some places more than 15 feet in width, and is therefore insufficient to show a prescriptive right-of-way.” Id. at 135-136. It is clear that the Supreme Court based its ruling not on width of use, but on the width of the roadway.

In Warner v. Brown, 290 Ga. App. 510, 515-516 (3) (659 SE2d 885) (2008), this Court determined that, given deeds of conveyance, surveys, and agreement of the parties that a particular roadway was 30 feet wide, where

the record makes clear that the Roadway exceeds the 20-foot maximum width allowed for the creation of a private right of way . . . and the [prescribers] have introduced no evidence showing that the width is instead 20 feet or less[,] . . . the record establishes that the Roadway is too wide to function as a private right of way.

(Emphasis supplied.) Timberlands argues that Warner is distinguishable because the prescribers sought a 30-foot easement, in excess of what the statute allows. Pretermitting whether this is so, see id. at 511, the language from Warner quoted above clearly shows that the Court rendered its decision not on the width sought, but on the width of the roadway. Id. at 516 (3). Griffin’s attempt to distinguish Warner is unavailing. We note that this Court has also determined that “the mere existence of a few wider places will not defeat the right of the users.” (Citation and punctuation omitted.) Jackson v. Norfolk Southern R., 255 Ga. App. 695, 697 (1) (566 SE2d 415) (2002).

Clearly, use is a factor in the overall analysis of whether a prescriptive easement exists. For example, Keng v. Franklin, 267 Ga. 472, 472 (480 SE2d 25) (1997), in discussing the other elements of a prescriptive easement, provides not only that “a successful prescriber must show that the private way did not exceed 20 feet in width” but also that “the use continued along the same route without shifting from one path to another[.]” (Citation omitted; emphasis supplied.) However, regardless of the other elements a prescriber must show — and any inevitable overlap between those elements — we see no authority absolving the prescriber from proving the width of the roadway. In sum, because Timberlands failed to make the required showing as to the width of the roadway, summary judgment was inappropriate in this case.

2. Griffin next argues that the trial court erred in granting the motion for summary judgment where there was conflicting evidence as to whether Timberlands’ use shifted from one path to another. We agree.

Griffin cites to the testimony of Allen Davidson, who used the access road for hunting. Davidson deposed that the road contained deep holes and that it “changed from time to time in width because as the holes developed, rather than fill the holes and repair the road, they (the user) would drive around the holes and make the road wider.” (Emphasis supplied.)

To establish a prescriptive easement, “the location of the way must not shift from place to place as to any part of the route, but the way must occupy the same ground all the while and be kept in repair on that ground.” (Citation and punctuation omitted.) Thompson v. McDougal, 248 Ga. App. 270, 273 (546 SE2d 44) (2001). The Thompson court found a fact question defeating summary judgment where the location of the way had changed. Id.

In Follendore v. Thomas, 93 Ga. 300 (20 SE 329) (1893), the Supreme Court of Georgia found, pursuant to the earlier 15-foot width requirement, that a road’s shifting via “turnouts” to avoid bad road conditions defeated a prescriptive easement where, even though “[t]he width of the road would not average more than fifteen feet, but at some places, on account of turnouts, the road was more than fifteen feet” including one place where the road was 44 feet wide. Id. However, in a later case, Scarboro v. Edenfield, 58 Ga. App. 619, 619 (2) (a) (199 SE 325) (1938), this Court found that despite “some detours ... made from the original road” the prescribers, unlike those in Follendore, supra, were not “claiming a right to use an area which would include land involved in the detours, but only the original road not exceeding fifteen feet in width.”

Pretermitting whether the existence of a few wider places in the roadway will or will not defeat the rights of prescriptive users, Jackson, supra, a crucial part of the analysis remains the width of the roadway. In this instance, questions remain on the width of the roadway where any shifting to avoid holes occurred, and whether that width exceeded or remained within the statutory width parameters of the roadway as originally laid out and claimed. Thus, summary judgment was inappropriate.

3. Griffin, again citing to Davidson’s affidavit, contends that a genuine issue of material fact exists as to whether Timberlands kept the roadway in repair during the prescribed period.

To establish prescriptive title, the prescriber must keep the roadway “open and in repair” during the prescriptive period. (Citation and punctuation omitted.) Eileen B. White & Assocs., Inc. v. Gunnells, 263 Ga. 360, 360 (434 SE2d 477) (1993).

Timberlands provided affidavits showing that it spent more than $2,200 on multiple repairs to the road between 2000 and mid-2011, using heavy machinery to grade, clear, and brush out the road so that trucks could travel across it. Davidson, by contrast, testified that the road “was somewhat in existence but was in bad repair and was very difficult to travel because it stayed washed out and contained many deep holes.” He also testified that his hunting club “used the road from time to time.” Thus, there is no factual dispute as to whether the road was open and usable, despite what may have been a less-than-ideal level of repair. See Eileen B. White, supra at 361.

However, it is well settled that “[t] he gist of the requirement as to repairs is not so much the repairs as the notice which is given by the repairs. Moreover, use alone is insufficient to acquire prescriptive title.” (Citations and punctuation omitted; emphasis in original.) Rothberg, supra at 781 (2); accord Eileen B. White, supra at 360-362. We have held that even where a landowner claimed he did not notice any repairs being made, because “there was testimony to the effect that the repairs were extensive enough to put the owner on notice that others were using the road[,]” the evidence was sufficient to support a prescriptive easement. Ga. Pacific Corp. v. Johns, 204 Ga. App. 594, 594 (420 SE2d 39) (1992). Because Griffin does not contest the issue of notice on appeal, we cannot say that the trial court erred.

Decided July 8, 2014 —

Sims, Fleming, Hudson & Crosby, Carlton A. Fleming, Jr., John D. Crosby, James L. King II, for appellants.

Durham & Rizzi, James B. Durham, Patrick C. Powell, for appellee.

Nonetheless, Timberlands overall still has failed to meet the requirements for summary judgment as to its claim of prescriptive easement.

4. Given our determinations in Divisions 1, 2, and 3, we need not reach Griffin’s remaining contention of error.

Judgment reversed. Andrews,

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

       Although Rayonier filed the initial suit, Timberlands later was substituted as plaintiff.

       The trial court denied Griffin’s motion to approve a transcript by recollection. The hearing at issue was not an evidentiary hearing.

       Griffin also argues that there is conflicting evidence in the form of an affidavit from Timothy Griffin that the roadway is wider than the statutory maximum of 20 feet. However, Griffin’s affidavit was subscribed on September 26, 2013, well after the prescriptive period at issue here, which runs from 2000 to mid-2011. His affidavit makes no mention of the date on which he attests that the roadway exceeded 20 feet in width. In an earlier affidavit, subscribed on July 17, 2013, Griffin stated that “No person, agent or employee of [Timberlands] or anyone else ever indicated to me the existence of an access road across my property.” (Emphasis supplied.) Given that Timothy Griffin was unaware that an access road existed as of the date of this earlier affidavit, which also post-dates the prescriptive period, even viewing this evidence in the light most favorable to Griffin as the nonmovant, he cannot have had knowledge of the roadway’s width during the prescriptive period. The affidavit presents no fact question.

       Ga. L. 1953, Nov. Sess., p. 98, amended Code § 83-102 (now OCGA § 44-9-40) to provide that the width of a private way not exceed 20 feet. See Rothberg v. Peachtree Investments, 220 Ga. 776, 780 (1) (142 SE2d 264) (1965).

       While we recognize the inherent tension between cases seemingly applying a strict limitation to the 20-foot (formerly 15-foot) width and those cases allowing small and/or limited deviations, we do not concern ourselves with reconciling those cases since there is no evidence here as to the width of the road, only to the width of the part which is used.


author: Boggs, Judge.

text:
    A14A0679, A14A0680.
    DRURY v. SECURITY STATE BANK (two cases).
    (759 SE2d 635)
   Boggs, Judge.

In these consolidated appeals, Kathy and Carl Drury appeal pro se from two trial court orders in this dispossessory action that was filed in Fulton County State Court (“the state court”). They contend that the state court erred by (1) concluding that they were tenants at sufferance rather than tenants at will following Security State Bank’s (“the Bank”) foreclosure; (2) dismissing their appeal “on the grounds that issues of title had been decided”; and (3) ruling upon issues involving title to land over which the state court lacked jurisdiction.

In dispossessory actions, “[w]e apply a de novo standard of review to legal issues decided by the trial court, and factual findings made by the trial court shall not be set aside unless clearly erroneous.” (Citation and footnote omitted.) Owens v. Bank of America, N.A., 304 Ga. App. 323 (696 SE2d 379) (2010). The record shows that on November 2, 2010, the Bank foreclosed upon Fulton County property owned by the Drurys that had been used to secure a $1.5 million loan. On July 19, 2011, the Bank filed a petition for a writ of dispossession in Fulton County State Court alleging that the Drurys were tenants at sufferance. In their answer and counterclaim, filed on August 1, 2011, the Drurys contended that the Bank entered into a lease agreement with them that created a tenancy at will and asserted promissory estoppel as a bar to summary eviction. They also asserted a claim for wrongful eviction “[sjubject to and without waiving any claim that the underlying foreclosure is invalid and should be set aside.”

On August 19, 2011, after the Bank sought a writ of possession, the Drurys filed an action in Telfair County Superior Court seeking to set aside the foreclosure of their Fulton County property and an injunction to preclude their eviction. The Bank filed a counterclaim in the Telfair County action seeking a declaration that its foreclosure was lawful. On September 23, 2011, the Drurys filed another action against the Bank in Fulton County Superior Court, seeking the same relief that they had requested in the Telfair County action. On September 26, 2011, the Drurys dismissed their Telfair County complaint, and the Bank objected to the dismissal under OCGA § 9-11-41 (a) (2), based upon its pending counterclaim.

On August 25,2011 and September 29,2011, the trial court in the Fulton State dispossessory action held evidentiary hearings on the issue of whether the Drurys were tenants at will or tenants at sufferance. On January 12, 2012, the state court entered an order concluding that “no month to month tenancies existed or exist as was alleged and testified to by the Defendants, and that the Defendants are tenants at sufferance, following the foreclosure.” Based upon the actions pertaining to the validity of the foreclosure in the Fulton County and Telfair County Superior Courts, the state court stated in its order that it would consider a stay of the writ of possession. On January 18, 2012, the day before the writ of possession became effective, the Drurys filed a notice of appeal from the state court’s order.

On March 14,2012, before the December 9,2013 docketing of this appeal from the state court’s order, the Drurys’ Fulton County Superior Court action was dismissed for a variety of reasons. This court affirmed the dismissal in an unpublished opinion on April 19, 2013. Drury v. Security State Bank, 321 Ga. App. XXV (2013) (A13A0493). On May 18, 2012, the Telfair County court entered an order declaring the Bank’s foreclosure valid. In April 2013, the Drurys’ attempt to file an out-of-time appeal from the Telfair County order failed, because out-of-time appeals are not permitted in civil cases.

In May 2013, after this court resolved the pending appeals from the Fulton County and Telfair County Superior Court orders, the Bank moved to dismiss the Drurys’ appeal in the present action on the ground of mootness and sought an immediate writ of possession. On July 25,2013, the state court entered an order dismissing the Drurys’ appeal as moot and issued another writ of possession with an immediate effective date. On July 30, 2013, the Drurys filed a notice of appeal from this order.

1. The Drurys contend that the state court erred by dismissing their first appeal in its July 2013 order, and we agree. While a trial court has authority to dismiss an appeal as moot, Attwell v. Lane Co., 182 Ga. App. 813, 814 (1) (357 SE2d 142) (1987), the Drurys’ appeal from the state court’s January 12, 2012 order was not rendered moot by the finality of the Telfair County Superior Court order declaring the foreclosure legal and valid. The issue decided by the state court in its 2012 order was whether the Drurys were tenants at will or tenants at sufferance following the Bank’s foreclosure. The legality and finality of the foreclosure did not render moot the Drurys’ appeal of an order determining their status and legal rights following the foreclosure. We therefore reverse the state court’s July 25, 2013 order dismissing the Drurys’ appeal.

2. In their remaining enumeration of error, the Drurys assert that the state court erred by concluding in its January 12, 2012 order that they were tenants at sufferance, as opposed to tenants at will, following the foreclosure. We disagree.

Tenants at will are entitled to 60 days’ notice of termination under OCGA § 44-7-7, and a demand for possession following the expiration of this time period is a condition precedent to the institution of dispossessory proceedings under OCGA § 44-7-50(a). Trumpet v. Brown, 215 Ga. App. 299, 300 (2) (450 SE2d 316) (1994).

Atenancy at sufferance differs from a tenancy at will in this: The tenant at sufferance enters lawfully and holds over wrongfully without the landlord’s assent or dissent; while the tenant at will holds by the landlord’s permission. A tenant at will is always in by right, evidenced by permission, express or implied, of the landlord. A tenant at sufferance holds over by wrong, and he is in possession, not by permission of the landlord, but as a result of his laches or neglect. It takes very little to convert a tenancy at sufferance into a tenancy at will. Receipt of rent, demand for rent, or anything that indicates the permission of the landlord for the tenant to remain in possession will have this effect. Mere silence, neglect, or laches on the part of the landlord will not have this effect____At common law a tenant at sufferance was not entitled to any notice to quit, before his tenancy could be terminated. There is nothing in our code which alters the common-law rule on this subject; the statute providing for notice being confined to tenancies at will. [OCGA § 44-7-7].

(Citations omitted.) Willis v. Harrell, 118 Ga. 906, 909-910 (45 SE 794) (1903). See also Diner One v. Bank South, 219 Ga. App. 702, 704 (466 SE2d 234) (1995) (tenancy at will created by demand for rent). “The payment of rent is not essential to the creation of a tenancy at will. [Cits.]” Carruth v. Carruth, 77 Ga. App. 131, 135 (1) (48 SE2d 387) (1948). But a tenancy at sufferance continues “until there has been some affirmative action by the landlord which has the effect of converting the tenancy into some other form. [Cit.]” Crawford v. Jones, 27 Ga. App. 448 (108 SE 807) (1921).

The record shows that the state court conducted two evidentiary hearings on August 25, 2011 and September 29, 2011 before concluding that the Drurys were tenants at sufferance. “As a general rule in bench trials, the judge sits as trier of fact and the court’s findings are analogous to a jury’s verdict and should not be disturbed if there is any evidence to support them.” (Citation and punctuation omitted.) Rafizadeh v. KR Snellville, LLC, 280 Ga. App. 613 (634 SE2d 406) (2006).

In this case, the record shows that on November 5, 2010, following the foreclosure, the Bank’s attorney notified the Drurys that they had 30 days to vacate the premises and that they would be considered trespassers after that date. On December 3, 2010, the Bank’s attorney sent another letter to the Drurys, stating:

You have flooded my office e-mail and the e-mail of Security State Bank with various letters and other documents which were unsolicited. Contracts and agreements cannot be created unilaterally.
You have tried to create agreements regarding your former residence which do not exist. The only agreement between you and Security State Bank was the gratuitous allowance, that, after the foreclosure, you could have until December 5, 2010 to vacate the residence with all your possessions.
On behalf of Security State Bank, please note the following position:
(1) The residence is now owned by Security State Bank;
(2) There are no agreements to allow you and your family to remain in the residence past December 5, 2010;
(3) There is no agreement for you or your wife to act as a sales representative for Security State Bank;
(4) Contrary to your assertions, the Bank prefers the house to be empty and vacant to facilitate the sale of the home;
(5) The Security State Bank denies the validity or existence of any contract or agreement not executed by the Bank, in accordance with proper corporate execution following board approval.
You are now a tenant at sufferance with no rights to the house or property. If you have not vacated the premises by December 5, 2010, action will be taken to evict you from the residence.
Please use your remaining time to secure removal and storage of your possessions as instructed by the letter of November 5,2010. Neither Security State Bank nor this office will respond to your emails or phone calls from this point forward. The position of the Security State Bank is clear.

(Emphasis in original.) On December 9, 2010, the Bank sent another letter to the Drurys offering to allow them to remain in the property until January 15, 2011, provided they agreed to certain conditions in writing. The Drurys did not agree to the conditions based upon their belief that they already had an oral agreement with the bank to remain in the home until it was sold. On March 25, 2011, the Bank’s attorney sent a letter demanding immediate possession of the property that also stated:

Let us re-emphasize and reiterate that there is no agreement between Security State Bank and (1) any members of the Carl M. Drury, III family or household; (2) any members of the Kathy Drury family or household; (3) or with any tenants, for them to remain on the premises for any reason, for any time, for any purpose.
Please vacate immediately so as to avoid additional litigation.

The Drurys asserted in the hearing that the Bank entered into an oral agreement with them in November 2010 that allowed them tostay in the home until it was sold in exchange for their assistance in staging the home with their furniture, leaving the home at a moment’s notice for realtor showings, and maintaining the utilities and grounds. Carl Drury acknowledged in his testimony that they would have paid for utilities and maintained the home if they still owned it. The Bank paid for taxes and insurance on the property.

The Bank president who participated in the telephone call in which the alleged oral agreement was made denied the existence of any oral agreement with the Drurys to remain in the home until it sold. The Bank’s vice president testified that it listed and showed the house after the foreclosure with the Drurys’ furniture in place “[o]nly because they won’t move out.” According to the vice president, the Drurys’ continued presence in the home inhibited the bank’s ability to sell the home.

At the conclusion of the September 2011 hearing, the state court orally ruled that no tenancy at will had been created, stating:

This is, in my opinion, the way post-foreclosure evictions are supposed to go, not the way they’re not supposed to go. It is commendable that the bank extended courtesies. I agree with [the Drurys’ counsel] that at some point there’s a line where those courtesies turn into contractual obligations. I don’t find . . . from the facts in this case that that line has been crossed.

Based upon the “any evidence” standard of review, we affirm the state court’s decision to grant a writ of possession based upon its conclusion that the Drurys were tenants at sufferance. It is well established that “[w]here former owners of real property remain in possession after a foreclosure sale, they become tenants at sufferance. [Cits.]” Bellamy v. Fed. Deposit Ins. Corp., 236 Ga. App. 747, 750 (1) (512 SE2d 671) (1999). Based upon the conflicting evidence about the existence of an oral agreement and the debatable benefit to the Bank of the Drurys’ continued occupancy of the home, the state court was authorized to find that the Bank did not enter into an open-ended agreement to allow the Drurys to remain in the property until it was sold in exchange for their staging and maintenance of the home. And the agreement to allow the Drurys to remain in the home through December 5, 2010 created, at most, an oral lease for a definite term. Compare OCGA § 44-7-6 (“Where no time is specified for the termination of a tenancy, the law construes it to be a tenancy at will.”). At the expiration of this definite term, the Drurys once again became tenants at sufferance and therefore were not entitled to 60 days’ notice of the termination of their tenancy. See Booker v. Trizec Properties, 184 Ga. App. 782, 783 (2) (363 SE2d 13) (1987); Knighton v. Gary, 163 Ga. App. 394, 397 (295 SE2d 138) (1982). We find this case analogous to Hill v. Kitchens, 39 Ga. App. 789, 790 (7) (148 SE 754) (1922), in which we held that a tenancy at will was not created by evidence showing that the landlord did nothing “more than merely tolerate the defendant’s possession for the time being.” Id.

Decided June 27, 2014 —

Reconsideration denied July 9, 2014 —

Kathy Drury, pro se.

Carl M. Drury III, pro se.

Carol V. Clark, James B. McClung, for appellee.

Judgments affirmed in part and reversed in part.

Barnes, P. J., and Branch, J., concur.

       Case No. A14A0679 relates to Kathy Drury’s appeal, and Case No. A14A0680 relates to Carl Drury’s appeal.

       But see American Med. Security Group v. Parker, 284 Ga. 102, 108-110 (663 SE2d 697) (2008) (Justice Benham, concurring specially, questions wisdom of allowing trial courts to dismiss appeals on same grounds for which appellate court can dismiss an appeal).


text:
    A13A1153.
    TRAMMELL v. THE STATE.
    (761 SE2d 470)
   Miller, Judge.

Convicted of three counts of aggravated assault (OCGA § 16-5-21 (b)), Eddie Trammell appeals from the denial of his motion for new trial, contending that (1) the evidence was insufficient to support the verdict and the trial court erred in denying his motion for directed verdict; (2) the State failed to prove venue; (3) the trial court erred in denying his motion for mistrial based on prosecutorial misconduct; and (4) he was denied effective assistance of counsel. Finding no error, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence. We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor judge the credibility of the witnesses.

(Citations and punctuation omitted.) Castillo v. State, 288 Ga. App. 828 (655 SE2d 695) (2007).

So viewed, the evidence shows that William Marsh, Demonte Jackson, and Trammell were childhood friends who lived in the same neighborhood. Around 8:30 or 9:00 on the night of June 8, 2008, Jackson and Marsh arrived at Jackson’s home in Marsh’s car and saw Trammell outside. Jackson and Trammell got into a fist fight. After the fight ended, Jackson gotback into Marsh’s car and went to a party.

The party ended around midnight, and Marsh drove Jackson home. They pulled up in front of Jackson’s house, and Trammell called Marsh’s cell phone. Trammell yelled at Jackson and told him he “had something” for Jackson when he saw him. Then, Jackson handed the phone to Marsh, and Trammell yelled at Marsh. A gray or light-colored Jeep Cherokee then pulled up alongside Marsh’s car. Trammell was in the passenger seat of the Jeep, and he fired eight or nine shots at Marsh and Jackson. Jackson was shot in the forearm and a bullet grazed his nose. Marsh was shot five times, resulting in gunshot wounds to his buttocks and hip.

Since the engine was still running, Marsh hit the gas and tried to drive away. When the Jeep followed, Marsh called his uncle, Christopher Howard, and told him that Jackson had been shot and he and Jackson were being chased by Trammell. Howard advised Marsh to drive to Howard’s neighborhood, a few blocks from Jackson’s home. In Howard’s neighborhood, Marsh and Jackson abandoned their car in a cul-de-sac and separately ran on foot to Howard’s house, which is located in Decatur.

After receiving the phone call from Marsh, Howard asked his wife to call the police, then went outside and saw Marsh’s car “flying down” the street. Howard got into his own car, drove down the hill to the cul-de-sac and pulled up alongside Marsh’s abandoned car moments later. Howard walked over to the car, saw that it was covered in blood, and heard gunfire. Howard then saw the gray Jeep Cherokee drive by and saw a passenger in the back seat, who was not Trammell, fire numerous shots toward him, reload the gun, and fire more shots. Howard retrieved his own weapon and fired at the Jeep as it passed by him. The Jeep then drove away, and Howard realized that he had been shot and drove his car home.

Police responded to Howard’s home. Jackson, Marsh and Howard all made statements to police after being taken to separate hospitals. Police later recovered a silver Jeep Cherokee at a gas station. The night clerk told police that two men came into the gas station, purchased gas for another vehicle, and left in that vehicle, leaving the Jeep at the station. The back window of the Jeep hadbeen shot out, the vehicle bore bullet holes, and police observed shell casings inside.

At trial, Jackson identified Trammell and testified that he was one “hundred percent sure” that Trammell was the person who shot at him and Marsh on the night in question. Marsh also identified Trammell as the person who chased him in the Jeep.

1. Trammell contends that the evidence is insufficient to support the verdict because the State presented no physical evidence to connect him to the crime and there was no evidence that he shot Howard. For the same reasons, he contends that the trial court erred in denying his motion for a directed verdict. We disagree.

Under Georgia law, a person commits the offense of aggravated assault when that person commits an assault with a deadly weapon. OCGA § 16-5-21 (b) (2). Furthermore, “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16-2-20 (a). Although

mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.

(Citations and punctuation omitted.) McWhorter v. State, 198 Ga. App. 493 (1) (402 SE2d 60) (1991).

In considering the sufficiency of the evidence, we
do not determine the credibility of eyewitness identification testimony. Rather the determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury [and] the testimony of a single witness is generally sufficient to establish a fact. Here the [victims’] testimony alone is sufficient to authorize the jury’s verdict of guilty beyond a reasonable doubt.

(Citations and punctuation omitted.) Frazier v. State, 305 Ga. App. 274, 275 (1) (699 SE2d 747) (2010).

(a) As to the aggravated assaults against Jackson and Marsh, Trammell argues that the State presented only the uncorroborated testimony of those two victims. Jackson testified that Trammell shot at him and Marsh from the Jeep Cherokee, and Marsh identified Trammell as the person chasing them. Jackson’s testimony identifying Trammell as the shooter is sufficient to authorize the jury to find Trammell guilty of the aggravated assaults against Jackson and Marsh. As to the lack of physical evidence, the “lack of corroboration only goes to the weight of the evidence and the credibility of the testifying witness, which is solely within the purview of the jury.” (Citation and punctuation omitted.) Manuel v. State, 289 Ga. 383, 385 (1) (711 SE2d 676) (2011).

(b) As to the aggravated assault against Howard, there was evidence that Trammell was a passenger in the Jeep when someone else shot Howard. The jury could infer that Trammell was an active participant in Howard’s shooting based on Trammell’s earlier shooting of Marsh and Jackson and the fact that Howard was shot shortly thereafter, while standing outside Marsh’s car, by a person riding in the same Jeep. This evidence was sufficient to authorize a jury to find Trammell guilty beyond a reasonable doubt as a party to the aggravated assault of Howard.

(c) Since the evidence supported Trammell’s convictions, the trial court did not err in denying Trammell’s motion for a directed verdict. See Stratacos v. State, 293 Ga. 401, 412 (4) (748 SE2d 828) (2013) (this Court reviews the denial of a directed verdict under the same standard used in evaluating the sufficiency of the evidence).

2. Trammell next contends that the State failed to prove venue in DeKalb County. We disagree.

Generally, a criminal action must be tried in the county in which the crime was committed, and the State may establish venue by whatever means of proof are available to it, including direct and circumstantial evidence. As an appellate court, we view the evidence in a light most favorable to support the verdict and determine whether the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime was committed in the county where the defendant was indicted.

(Citations omitted.) Chapman v. State, 275 Ga. 314, 317 (4) (565 SE2d 442) (2002). The fact that a crime is investigated by county employees is circumstantial evidence of venue. See id. at 317-318 (4) (unless clearly proven otherwise, public employees are assumed to be acting properly within their jurisdiction).

(a) Here, the evidence showed that Jackson and Marsh were shot while parked in front of Jackson’s home at 3387 River Run Trail. The shooting occurred in the street between Jackson’s and his neighbor’s homes. The neighbor’s home was located at 3400 River Run Trail in Decatur, in DeKalb County, and across the street, about 20 steps away, from Jackson’s home. Moreover, the shooting on River Run Trail was reported to DeKalb County police, and DeKalb County police officers responded to the crime scene at River Run Trail. Additionally, a DeKalb County officer interviewed Jackson’s neighbor, whose home was “right there near” where police recovered shell casings. Accordingly, the circumstantial evidence supported a finding that the shooting on River Run-Trail occurred in DeKalb County, and this evidence was sufficient to prove venue for the crimes that occurred there. See Chapman, supra, 275 Ga. at 317-318 (4).

(b) As to the shooting of Howard, the evidence shows that Trammell chased Marsh and Jackson as they fled to Howard’s home. Howard testified that he lived at 2875 Oakvale Falls Drive in Decatur and he was shot in the cul-de-sac less than one block from his house.

DeKalb County police officers also responded to Howard’s home, located in DeKalb County, and to the scene of Howard’s shooting on Oakvale Avenue. Moreover, investigators with the DeKalb County Police Crime Scene Unit photographed Marsh’s car and the area where Howard was shot. Thus, circumstantial evidence also shows that Howard was shot in DeKalb County and this evidence was sufficient to prove venue for this crime. Chapman, supra, 275 Ga. at 317-318 (4).

3. Trammell next contends that the trial court erred in denying his motion for mistrial based on prosecutorial misconduct. We disagree.

“The decision to grant a mistrial is within the discretion of the trial court and will not be disturbed on appeal unless there is a showing that a mistrial is essential to the preservation of the right to a fair trial.” (Citation omitted.) Jackson v. State, 292 Ga. 685, 689 (4) (740 SE2d 609) (2013).

Here, the State was ordered not to elicit any testimony regarding Trammell’s unrelated charges. Nonetheless, during the State’s questioning of Jackson, the following exchange occurred:

Q: Mr. Jackson, prior to the fist fight between yourself and the defendant, had you had any type of disagreements?
A: No, sir, I had not.
Q: Can you think of any reason [that] would have motivated him to come up and just swing at you like that?
A: No, sir, other than the burglary charge that both of us had.

Trammell moved for a mistrial. The trial court denied the motion, but instructed the jury to strike the testimony from its consideration. The trial court thereafter denied defense counsel’s renewed motion for mistrial. At the close of the State’s case, Trammell again renewed his mistrial motion, and the trial court again denied it.

Setting aside the issue of whether the prosecutor intentionally solicited the improper comment and thus committed misconduct, the decision

[wjhether to grant a mistrial based upon improper character evidence rests within the trial court’s discretion. When a witness improperly testifies about a defendant’s [additional criminal charges], thereby placing the defendant’s character in evidence, curative instructions given by the trial court may be a proper and adequate remedy.

Dukes v. State, 273 Ga. 890, 892 (3) (b) (548 SE2d 328) (2001); see also Pearson v. State, 277 Ga. 813, 816 (4) (596 SE2d 582) (2004) (curative instructions adequately remedy disclosure of other crimes). The trial court instructed the jury to disregard the evidence of Trammell’s other offense, and “qualified jurors under oath are presumed to follow the instructions of the trial court.” Allen v. State, 277 Ga. 502, 504 (3) (c) (591 SE2d 784) (2004). Therefore, the trial court did not err in denying Trammell’s mistrial motion.

4. In his last enumeration of error, Trammell contends that his counsel was ineffective. We disagree.

In order to prevail on a claim of ineffective assistance, [Trammell] must show that counsel’s performance was deficient and that the deficient performance so prejudiced [Trammell] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [Trammell] must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, an appellate court gives deference to the lower court’s factual findings, which are upheld unless clearly erroneous; the lower court’s legal conclusions are reviewed de novo.

(Citations and punctuation omitted.) Hampton v. State, 279 Ga. 625, 626-627 (619 SE2d 616) (2005). “Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Punctuation and footnote omitted.) Gray v. State, 291 Ga. App. 573, 579 (2) (662 SE2d 339) (2008).

(a) Trammell first contends that trial counsel was ineffective in failing to obtain video surveillance from the gas station where the Jeep was recovered or subpoena telephone records to show that Trammell did not call Marsh on the night in question.

: At the hearing on Trammell’s motion for new trial, defense counsel testified that prior to trial he and a defense investigator went to the gas station and learned that the surveillance video of the recovered Jeep was no longer available because the station recorded over its surveillance tapes within 24 to 48 hours. Defense counsel also testified that he did not subpoena the phone records because, after consulting with the defense investigator, they determined that the cellular provider would no longer have the records. Trammell did not show that the requested evidence was still available at the time of trial, and the trial court was authorized to find credible counsel’s testimony that the evidence was no longer available at the time of his investigation. See Kilpatrick v. State, 252 Ga. App. 900, 903 (1) (557 SE2d 460) (2001). Therefore, counsel’s failure to obtain evidence that was not available does not constitute ineffective assistance.

Moreover, given Jackson’s testimony identifying Trammell as the shooter, Trammell has failed to show a reasonable likelihood that, but for defense counsel’s failure to present evidence regarding the phone call or the disposal of the Jeep, the outcome of the trial would have been different.

(b) Trammell also contends that his counsel was ineffective in failing to independently process the Jeep for fingerprints.

Trammell’s counsel testified that he did not attempt to locate the Jeep because he believed that any evidence would have been contaminated and the burden of proof was on the State. Trammell’s counsel also testified at the hearing on Trammell’s motion for new trial that he believed the State’s failure to investigate the Jeep was a good argument for the defense. Defense counsel’s tactic in emphasizing the State’s lack of evidence was reasonable, and Trammell fails to show ineffective assistance. See Ray v. State, 253 Ga. App. 626, 627 (2) (560 SE2d 54) (2002) (attorney’s decision regarding what evidence to introduce is a matter of tactics and does not amount to ineffective assistance).

(c) Trammell contends that his counsel rendered ineffective assistance by failing to present sufficient evidence in mitigation at sentencing.

The failure to present mitigating evidence is not per se deficient. See State v. Worsley, 293 Ga. 315, 326 (4) (745 SE2d 617) (2013). Moreover, Trammell received a single twenty-year sentence for his convictions on three counts of aggravated assault based on his shooting of two people multiple times and his involvement in the shooting of a third person, all within two residential neighborhoods. On this record, there is no reasonable likelihood that, but for counsel’s failure to present mitigating evidence, the sentence would have been different, and Trammell has made no proffer as to what mitigating evidence counsel might have presented or argued or how such evidence or argument might have changed the court’s sentencing decision. See Eskew v. State, 309 Ga. App. 44, 51 (5) (d) (709 SE2d 893) (2011) (proffer of general mitigating evidence that defendant had a family and no violent record not sufficient to establish prejudice). Consequently, Trammell has shown no prejudice.

(d) Finally, Trammell contends that his counsel was ineffective in failing to invoke the rule of sequestration before some of the State’s witnesses testified.

OCGA § 24-9-61 (2010) provides that, in all cases, “either party shall have the right to have the witnesses of the other party examined out of the hearing of each other.” “The purpose of the rule of sequestration is to prevent a witness who has not testified from having his testimony affected by that of another witness.” (Citation and punctuation omitted.) Hollis v. State, 295 Ga. App. 529, 530 (1) (672 SE2d 487) (2009). Here, counsel invoked the rule of sequestration on the second day of trial, and the court instructed counsel to admonish the witnesses not to discuss their testimony with one another.

Prior to counsel’s invocation of the rule, Jackson, Marsh, Howard, and a police officer testified, and trial counsel cross-examined each of these witnesses. As to Marsh and Jackson, counsel specifically cross-examined them as to whether they talked about the case together prior to testifying. Thus, the jury was able to evaluate the witnesses’ testimony for itself. Accordingly, Trammell has failed to carry his burden of showing that he was prejudiced by his counsel’s failure to invoke the rule of sequestration before these witnesses testified. Even if the rule of sequestration had been invoked and the witnesses had violated the rule, such a violation goes to the witnesses’ credibility, not the admissibility of their testimony. See Pennington v. State, 313 Ga. App. 764, 770 (2) (c) (723 SE2d 13) (2012).

In sum, the evidence was sufficient to support the verdict, the State proved venue, the trial court did not err in denying Trammell’s motion for mistrial, and Trammell was not denied effective assistance of counsel. Accordingly, his convictions are affirmed.

Judgment affirmed.

Ray and Branch, JJ., concur.

Decided July 9, 2014.

Aggravated assault. DeKalb Superior Court. Before Judge Scott. Akil K. Secret, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

       Contrary to Trammell’s contention, Thompson v. Brown, 288 Ga. 855 (708 SE2d 270) (2011) and Jones v. State, 272 Ga. 900 (537 SE2d 80) (2000) do not require a different result. In Thompson, the defendant sold drugs to a police informant in Vidalia, which is located in two different counties. Thompson, supra, 288 Ga. at 855-856. Moreover, the narcotics agents who investigated the sale were part of a multi-jurisdictional task force and there was no evidence that the officers were limited to acting within a particular county. Id. at 856. In Jones, the only evidence of venue was testimony that the murder victim’s nearby neighbor lived on Evans Drive in Fulton County. Jones, supra, 272 Ga. at 903-904 (3). The responding City of Atlanta police officers patrolled both Fulton and DeKalb Counties and therefore their investigation could not establish venue in Fulton County Id. at 903 (3).