text:
    A11A1434.
    VEASEY v. THE STATE.
    (717 SE2d 284)
   Dillard, Judge.

Following a trial by jury, James Veasey was convicted of one count of robbery, two counts of fleeing and attempting to elude police, and various traffic offenses. Veasey challenges these convictions on appeal, arguing that the evidence against him was insufficient, that the trial court erred in denying a Batson challenge during voir dire, and that his trial counsel was ineffective. For the reasons noted infra, we affirm Veasey’s convictions.

Viewed in the light most favorable to the verdict, the record shows that the victim, a 67-year-old woman, was grocery shopping late one afternoon when she noticed Veasey following her down various aisles. Although she was uncomfortable with Veasey’s behavior, the victim ignored her intuition and continued shopping, eventually checking out and heading to the parking lot. As she began to load the groceries into her vehicle, the victim noticed a white car pull up alongside her, and she recognized the driver as the man who had followed her inside the store.

After greeting the man and asking if she could help him, Veasey exited the vehicle and came toward the victim. At this point, the victim realized she was about to be robbed, and a struggle then ensued over the victim’s purse until the straps broke and the victim fell hard to the ground. As Veasey returned to his car and fled, the victim repeated the numbers on the vehicle’s temporary tag and gave the information to a bystander who had stopped to offer assistance. The bystander then called 911 and relayed a description of the assailant as being a heavyset African American man wearing jeans, a blue shirt, and a cap; the vehicle’s tag number; and a description of the getaway car as a white, later-model Ford Crown Victoria.

A Thomasville police officer was dispatched to the grocery store’s parking lot and, while questioning the victim and witnesses, heard over the radio that another officer had spotted a vehicle matching the relayed description in the parking lot of a nearby store. Additionally, five of the six tag numbers supplied by the victim matched those on the vehicle, and a man who met the description of the suspect was observed entering the driver’s side of same.

As the other officer attempted to conduct a stop, the vehicle sped off, running a red light in the process. A high-speed chase then ensued, with the fleeing vehicle exceeding 100 miles per hour, running multiple red lights, swerving into the opposite lane of traffic, and nearly colliding with other cars.

Veasey’s vehicle eventually crossed into Florida, where he attempted to turn into the parking lot of yet another grocery store while traveling at 80 to 100 miles per hour. This speed proved to be more than the vehicle could bear, and it careened past oncoming traffic and into a guard rail, at which point the car spun 360 degrees and Veasey was forcibly ejected. But to the astonishment of law enforcement, Veasey immediately jumped up and fled from the scene. Nevertheless, after a brief foot chase, Veasey was captured and sent to a hospital for treatment and, eventually, jail.

Upon his arrest, Veasey was searched, and the victim’s checkbook, driver’s license, debit card, and military identification card were found on his person. The victim’s purse was recovered from inside Veasey’s vehicle, and the purse contained a number of items belonging to the victim, including the victim’s cell phone; various appointment, membership, and identification cards; the victim’s asthma inhaler and other prescription medication; and a photograph of her son. The trunk of the car also contained two television sets that were purchased in the brief period of time between the robbery and the high-speed chase by a person matching Veasey’s description, using one of the victim’s checks.

Veasey was ultimately indicted for theft by taking, robbery, two counts of fleeing and attempting to elude law enforcement, driving on the wrong side of the road, four counts of disregarding traffic-control devices, two counts of reckless driving, and driving with a suspended license. The State nolle prossed the counts of theft by taking and driving with a suspended license, but Veasey was convicted by a jury on all other counts. Veasey filed motions for a directed verdict and new trial, both of which the trial court denied. This appeal follows.

1. Veasey challenges the sufficiency of the evidence, essentially arguing that any identification of him as being the robbery suspect was insufficient. We disagree.

At the outset, we note that after a defendant has been convicted, “we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence.” And we “do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” So viewed, we conclude that the State met its burden of proof.

The evidence was sufficient to convict Veasey of the charged offenses when the victim and officers identified him in court as the robbery suspect and the driver in the high-speed chase; he drove a vehicle that matched the description of that driven by the victim’s assailant; he was found in possession of the items stolen from the victim; and he was found in possession of television sets purchased with a check stolen from the victim. Accordingly, this enumeration of error is wholly without merit.

2. Veasey also argues that the trial court erred in denying his Batson challenge during voir dire, contending that the State failed to create a sufficient record to overcome his challenge. Again, we disagree.

During jury selection, when an opponent of a peremptory strike demonstrates a prima facie case of racial discrimination, the proponent must articulate a racially neutral explanation for the strike. A “neutral explanation” is one that is “based on something other than the race of the juror,” and unless a discriminatory intent is inherent in the explanation, the reason that is offered will be deemed race-neutral. Additionally, “the findings of the trial court are entitled to great deference[ ] and should not be disturbed unless clearly erroneous.”

And here, the record shows that Veasey made a Batson challenge after the State struck seven African American jurors from the panel. The trial court requested a race-neutral explanation, and the State explained that it had conducted a jury meeting with several members of law enforcement who identified potential jurors with previous run-ins or negative experiences/contacts with law enforcement.

Specifically, the State offered the following explanations for striking the jurors: (1) two were mothers of convicted criminals with negative experiences with law enforcement; (2) one had a prior assault charge and negative contacts with law enforcement; (3) one was the sister of a convicted felon; (4) one had a prior arrest; and (5) one lived at an address where law enforcement frequently responded. As to the seventh juror, the State explained that he was a preacher and that, based on prior experience, preachers are oftentimes too forgiving as jurors. Additionally, this final juror was struck for strategic purposes because the prosecution deemed the replacement juror, also an African American, to be fair and impartial. The trial court accepted all of the foregoing explanations as race-neutral.

On appeal, Veasey takes issue with the State obtaining its information regarding potential jurors’ negative experiences with law enforcement through an unrecorded investigatory meeting. However, we have previously upheld denials of Batson challenges when the stated reasons were based on information gathered through off-the-record discussions with law enforcement. Accordingly, we conclude that the State presented an acceptable race-neutral explanation for exercising its strikes.

3. Finally, Veasey argues that his trial counsel was ineffective in a number of ways, namely in (a) failing to object to hearsay testimony, (b) failing to file a motion challenging the victim’s in-court identification of Veasey, and (c) failing to object to testimony that was “without foundation.”

In order to prevail on his claims of ineffective assistance of counsel, Veasey “must show that counsel’s performance was deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” In addition, there is a strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption. And unless clearly erroneous, we will uphold a trial court’s factual determinations with respect to claims of ineffective assistance of counsel. A trial court’s legal conclusions in this regard, however, are reviewed de novo. With these principles in mind, we will address each of Veasey’s claims in turn.

(a) Hearsay Testimony. Veasey contends that his trial counsel failed to object to instances of inadmissible hearsay testimony. We disagree.

The first alleged instance occurred when the officer who responded to the initial crime scene testified that he heard over his radio that another officer had spotted Veasey in a nearby parking lot. The second alleged instance occurred when an officer who pursued Veasey testified as to the information he received from another officer regarding the year and vehicle identification number of the car. And the third alleged instance occurred when a witness to the crime testified as to the information the victim asked him to relay to police when the witness called 911.

In each of the above instances, the individual who made the out-of-court declaration testified at trial and was subject to cross-examination. And

[i]f a hearsay declarant is present at trial and subject to unrestricted cross-examination, a defendant’s right to cross-examination is satisfied, and the witnesses’ prior out-of-court statements are not hearsay under OCGA § 24-3-1 because the declarant is available for cross-examination, and the evidence does not rest upon the credibility of other persons.

Accordingly, any objection to the above-referenced testimony would have been futile, and “[t]he failure to pursue a futile objection does not amount to ineffective assistance.”

(b) Victim’s Identification of Veasey. Veasey next contends that his trial counsel was ineffective in failing to file a motion challenging the victim’s in-court identification of him as the person who robbed her.

Veasey argues that a motion to suppress the victim’s in-court identification should have been filed because there was no lineup conducted, the victim was told that the perpetrator had been caught, the descriptions of the suspect were inadequate, and the victim wore glasses but was not cross-examined on this fact. But trial counsel testified at the motion for new trial hearing that he did not file a motion to suppress because there was no basis on which to make a valid motion. We agree with trial counsel.

While it is true that “[i]t is error to allow testimony concerning a pre-trial identification of a defendant if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification,” in the case sub judice there was no pre-trial identification procedure. Indeed, the victim’s only identification of Veasey as the perpetrator occurred in court. Moreover, the victim’s identification of Veasey was supported by the fact that she had multiple opportunities to observe Veasey (i.e., as he followed her through the grocery store and later when he confronted her face-to-face in the parking lot) and that he was found in possession of a number of stolen items that belonged to her. Accordingly, any motion would have been without merit, and the “[f]ailure to make a meritless objection cannot be evidence of ineffective assistance.”

(c) Testimony “Without Foundation.” Veasey’s final contention is that his trial counsel was ineffective in failing to object to officer testimony that Veasey drove “in a reckless manner in reckless disregard for the safety of persons and property on the highway.” Specifically, he argues that this testimony was “without foundation,” which we presume is actually an argument that this testimony reached an ultimate issue for the jury’s consideration. Nevertheless, this enumeration is without merit.

The officer in question testified that Veasey was clocked as traveling at 127 miles per hour and topped out at 133 miles per hour in a 65-mile-per-hour zone; that he weaved recklessly through traffic; drove into oncoming traffic; and eventually spun out and crashed while attempting a turn at 80 to 100 miles per hour. The jury also viewed a video taken from the officer’s patrol car during the chase. And while the officer did testify at one point that “[Veasey] was going in and out of traffic in a reckless manner, [in] complete disregard for the safety of other motorists on the way he was cutting people off,” this testimony is of no consequence given the other detailed testimony regarding the driving infractions and the overwhelming evidence of Veasey’s guilt. In sum, Veasey has not shown that a failure to object rendered his counsel ineffective.

Decided September 21, 2011.

Brandon Lewis, for appellant.

J. David Miller, District Attorney, Robert R. Auman, Assistant District Attorney, for appellee.

Accordingly, for all the foregoing reasons, we affirm Veasey’s convictions.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

       The victim sustained bruises to her arms, legs, knees, and hands.

        Powell, 310 Ga. App. at 144.

       Id.

       See, e.g., Robins v. State, 298 Ga. App. 70, 72 (1) (679 SE2d 92) (2009) (robbery victims’ in-court identification of suspect was sufficient evidence to sustain conviction); Walker v. State, 281 Ga. App. 94, 94-100 (635 SE2d 577) (2006) (evidence was sufficient to convict defendant of various theft-related offenses when he was found in possession of stolen items); Davis v. State, 275 Ga. App. 714, 716 (1) (621 SE2d 818) (2005) (sufficient evidence to convict defendant of burglary when he was found in possession of stolen items within hours of burglary); Jenkins v. State, 259 Ga. App. 47, 50 (2) (576 SE2d 300) (2002) (sufficient evidence to convict defendant of burglary when, inter alia, he was found in possession of items identified by the victim as having been stolen); Buckner v. State, 253 Ga. App. 294, 294-95 (1) (558 SE2d 823) (2002) (evidence was sufficient to sustain convictions for burglary and fleeing to elude police when defendant was identified in court by officer and was found in possession of stolen items); see

        also OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”).

        Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

        Cooper v. State, 220 Ga. App. 531, 532 (469 SE2d 790) (1996); see also Purkett v. Elem, 514 U. S. 765, 767 (115 SC 1769, 131 LE2d 834) (1995) (per curiam) (“[Olnce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination . . . , the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation .... If a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” (citations omitted)).

        Cooper, 220 Ga. App. at 532 (citation and punctuation omitted); see also Purkett, 514 U. S. at 767-68 (“The second step of this process does not demand an explanation that is persuasive, or even plausible.”).

        Gilbert v. State, 226 Ga. App. 230, 232 (486 SE2d 48) (1997) (citation and punctuation omitted).

        See, e.g., Alford v. State, 224 Ga. App. 451, 457-58 (6) (480 SE2d 893) (1997) (juror struck when law-enforcement officer informed State about prior negative contact); Herrin v. State, 221 Ga. App. 356, 358 (471 SE2d 297) (1996) (State made inquiries about potential jurors with law enforcement and struck based on negative experiences); Mathis v. State, 204 Ga. App. 244, 245 (3) (418 SE2d 800) (1992) (police informed State that potential juror had connections to illegal drug business).

        See supra note 7; see also Jackson v. State, 220 Ga. App. 98, 99 (469 SE2d 264) (1996) (race-neutral explanation when State struck juror out of fear that she would be “too forgiving” based on a failure to press charges when her home was burglarized). Compare Congdon v. State, 262 Ga. 683, 683-84 (424 SE2d 630) (1993) (improper for State to strike jurors for the simple reason that they were African American citizens of a town who were generally believed to harbor ill will toward the sheriff, who was the principal witness in the case); Parker v. State, 219 Ga. App. 361, 364 (1) (464 SE2d 910) (1995) (improper for State to strike jurors “based almost entirely on their demeanor” because this was not the “kind of concrete, tangible, race-neutral, case-related and neutrally applied reasons sufficient to overcome” a challenge). We note that although the record contains a transcript of the Batson challenge, there is no record of the initial jury interviews and selection. And when the transcript or record “does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41.” Acey v. State, 281 Ga. App. 197, 201 (3) (635 SE2d 814) (2006) (citation and punctuation omitted). Thus, “we are hampered in our efforts to fully analyze this issue because voir dire was not transcribed.” Id. at 202 (3) (citation and punctuation omitted). However, based on our review of the arguments made by Veasey, “we find no clear error in the trial judge’s conclusions that these strikes were [not] exercised in a racially discriminatory manner.” Id. (citation and punctuation omitted).

        Chapman v. State, 273 Ga. 348, 349-50 (2) (541 SE2d 634) (2001); see also Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).

        Chapman, 273 Ga. at 350 (2).

        Id.; Henderson v. State, 303 Ga. App. 898, 898 (1) (695 SE2d 334) (2010).

        Henderson, 303 Ga. App. at 898 (1).

        Overton v. State, 295 Ga. App. 223, 237 (5) (671 SE2d 507) (2008) (citation and punctuation omitted).

        Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008) (citation omitted).

        Clark v. State, 271 Ga. 6, 12 (7) (b) (515 SE2d 155) (1999).

        Moore v. State, 278 Ga. 397, 401 (2) (e) (603 SE2d 228) (2004) (citation and punctuation omitted).

        See Chapman, 273 Ga. at 349-50 (2) (“[A] criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.”). Cf. Mitchell v. State, 255 Ga. App. 585, 590 (5) (565 SE2d 889) (2002) (suggesting that witness’s testimony that defendant operated a boat with “reckless disregard for safety” would have been harmless error in light of the overwhelming evidence of guilt). We also note that “[dlecisions regarding when and how to raise objections are generally matters of trial strategy. . . .” Nesbitt v. State, 296 Ga. App. 139, 142 (3) (d) (673 SE2d 652) (2009).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A11A0785.
    BRZOWSKI v. QUANTUM NATIONAL BANK.
    (717 SE2d 290)
   Mikell, Judge.

Ronald R. Brzowski appeals the trial court’s judgment in favor of Quantum National Bank (“Quantum”) in this case arising out of a loan transaction between appellee Quantum and Patrick Circle Partners, LLC (“Patrick Circle”). Brzowski contends the trial court erred in holding that he signed a valid personal guaranty for the debts owed to Quantum by Patrick Circle and in finding him liable for attorney fees under OCGA § 13-1-11. For the following reasons, we affirm.

On appeal, a trial court’s findings of fact after a bench trial will not be disturbed if there is any evidence to support them. However, this Court reviews the trial court’s conclusions of law de novo.

So construed, the evidence shows that Quantum loaned the sum of $588,656.98 to Patrick Circle on September 19, 2007. The loan was evidenced by a Universal Note and Security Agreement (the “Note”) signed on September 19, 2007, by Brzowski as managing member of Patrick Circle.

Brzowski also signed a personal guaranty (the “Guaranty”) for the debts owed to Quantum by Patrick Circle. The enforceability of this Guaranty is the subject of this appeal. The top of the Guaranty contains three boxes that identify that guarantor, the borrower and the lender. Brzowski’s name and home address are printed in the box identifying the guarantor. Patrick Circle is identified as the borrower, and Quantum is identified as the lender. The document indicates that it is a “Present and Future Debt Guaranty” and describes the debts subject to the Guaranty as “each and every debt, of every type and description, that the borrower may now or at any time in the future owe [to Quantum].” Under the “Definitions” section of the document, debt is defined as

all debts, liabilities, and obligations of the borrower (including, but not limited to, all amounts agreed to be paid under the terms of any notes or agreements securing the payment of any debt . . . and all extensions, renewals, refinancings, and modifications of these debts) whether now existing or created or incurred in the future.

Although the document was signed by Brzowski, it is not dated. In March 2009, Patrick Circle defaulted on the Note, and Quantum declared the debt due in full. Quantum sent certified demand letters to Patrick Circle and Brzowski demanding immediate payment of all sums under the Note and Guaranty. The loan was not repaid, and Quantum filed this lawsuit against Patrick Circle and Brzowski to recover for breach of promissory note and personal guaranty and for attorney fees. Patrick Circle did not dispute its default under the Note, and the trial court entered a judgment against Patrick Circle. Patrick Circle is not a party to this appeal and does not contest the judgment.

Brzowski disputed the validity of the Guaranty. After denying the parties’ cross-motions for summary judgment, the trial court scheduled the case for a bench trial. Rather than conducting a full evidentiary hearing, the parties stipulated to the authenticity and contents of the evidence, and the trial court issued a final order and judgment finding in favor of Quantum on its claims for breach of the Guaranty and entered a judgment against Brzowski for all monies owed by Patrick Circle. Brzowski appeals.

1. Brzowski first contends that the trial court erred in holding that the Guaranty did not violate the Statute of Frauds because the document was not dated, and thus did not specifically identify the debt covered by the Guaranty. We disagree.

The Statute of Frauds requires that, to be enforceable, a promise to answer for another’s debt “must be in writing and signed by the party to be charged therewith.” “This requirement has been interpreted to mandate further that a guaranty identify the debt, the principal debtor, the promisor, and the promisee.” Further, this Court has required that “a guaranty must, either in itself or in connection with other writings, identify the debt which is the subject of the promise, indicate knowledge of both the amount promised to be paid and the time the debt becomes due.”

Brzowski admits that he signed the Guaranty and does not contest that the document identifies him as the guarantor, Patrick Circle as the borrower and Quantum as the lender. However, Brzowski argues that the Guaranty is unenforceable because the document does not include the date it was executed, and thus does not contain information sufficient to identify the debt subject to the Guaranty. The document further states under a section captioned “NOTICE TO COSIGNER” that “[i]f you are making a ‘Present and Future Debt Guaranty’ as identified above, you are being asked to guarantee present as well as future debts of the borrower entered into with this lender.” (Emphasis in original.)

Brzowski has failed to provide any statutory authority or case law indicating that the execution date of a personal guaranty is an essential term to satisfy the Statute of Frauds. Although the document at issue does not indicate the date it was executed or specifically identify the debt guaranteed, we find that the plain meaning of the language “Present and Future Debt” shows that Brzowski’s obligations under the Guaranty had no temporal limitation and applied to debts owed by Patrick Circle to Quantum that were in existence at the time the Guaranty was signed as well as any future debts created after the Guaranty’s execution. Accordingly, we find that the express language of this Guaranty does not require an execution date to identify the debt covered.

2. Brzowski next maintains in two related enumerations of error that the trial court erred in admitting parol evidence to clarify the execution date of the Guaranty, and that the parol evidence was improperly admitted into evidence. We disagree.

The trial court’s order held that while parol evidence was not necessary to identify the debt covered by the Guaranty, its conclusion that the Guaranty covered the Note between Patrick Circle and Quantum was further supported by the testimony of Brad Day, the executive vice president and chief operating officer of Quantum, Kevin Salisbury, the attorney who completed the closing of the loan transaction and Brzowski, who testified that the Note evidenced the only loan transaction between Quantum and Patrick Circle. Both Day and Salisbury testified that the Guaranty at issue was signed in conjunction with and as part of the same closing as the Note.

(a) Brzowski maintains that the date the guaranty was executed is an essential term to satisfy the Statute of Frauds, and that parol evidence could not be admitted for that issue. We disagree.

While parol evidence is inadmissible to supply any missing essential terms of a contract required by the Statute of Frauds to be in writing, the Statute of Frauds does not prohibit using parol evidence to explain ambiguities in descriptions of nonessential terms. As stated above, the trial court correctly found that the execution date of the personal guaranty was not an essential term required to satisfy the Statute of Frauds. Therefore, it was permissible for the trial court to consider parol evidence on that issue.

(b) Brzowski next argues that the trial court erred in admitting his deposition testimony as parol evidence because it contained impermissible lay opinion testimony. We disagree.

Pretermitting whether the deposition contained impermissible opinion testimony, there is no indication from the trial court’s order that it relied upon any opinion expressed by Brzowski during the deposition. The trial court’s sole citation to Brzowski’s deposition was to testimony that the Note represented the only transaction between Patrick Circle and Quantum. This testimony was not a matter of opinion, but rather a factual statement.

(c) The contemporaneous writing rule is not applicable in this case. The trial court did not cite to or rely upon the contemporaneous writing rule anywhere in its final order. Further, the trial court’s final order did not rely upon the contemporaneous writing rule to consider the Note in conjunction with the Guaranty. Rather, the trial court found that the description and definition of the word “debt,” combined with the identification of the principal debtor, promisor and promisee, is sufficient to consider the Note and Guaranty as a single transaction that complied with the Statute of Frauds.

3. Brzowski contends that the trial court erred in awarding Quantum attorney fees because Quantum failed to provide sufficient notice of its intent to pursue such fees as required by OCGA § 13-1-11. Specifically, Brzowski contends that the demand letter sent by Quantum did not reference the attorney fee provision of the Note and that the demand notice failed to advise Brzowski in a clear manner that he had ten days to cure the default to avoid the imposition of attorney fees. We disagree.

Here, the Note provides that in the event of default, Patrick Circle and thus, the guarantor, shall be responsible for reasonable attorney fees in the amount of 15 percent of the outstanding principal and interest. After the default, Quantum sent a demand letter to Patrick Circle and Brzowski. In relevant part, the demand provided an accounting of the debt owed showing the principal balance, late fees and other charges, accrued past due interest and a per diem interest calculation. Although the demand letter did not specifically quote the attorney fee provision in the Note, it does reference the Note and state that the debt remains unpaid and if it “becomes necessary to collect the amount due through legal action, our client will seek to recover all of its attorney’s fees and expenses of litigation pursuant to Georgia law. You avoid the imposition of attorney’s fees by paying the balance due within ten (10) days of your receipt of this letter.” Finally, the letter further states that the obligors had 30 days in which to dispute the debt, but that Quantum did not have to wait for 30 days before initiating collection proceedings.

OCGA § 13-1-11 (a) provides as follows, in relevant part:

Obligations to pay attorney’s fees upon any note or other evidence of indebtedness . . . shall be valid and enforceable and collectable as a part of such debt. . . subject to the following provisions:
(3) The holder of the note or other evidence of indebtedness or his or her attorney at law shall, after maturity of the obligation, notify in writing the . . . party sought to be held on said obligation that the provisions relative to payment of attorney’s fees in addition to the principal and interest shall be enforced and that such . . . party sought to be held on said obligation has ten days from the receipt of such notice to pay the principal and interest without the attorney’s fees. If the . . . party sought to be held on any such obligation shall pay the principal and interest in full before the expiration of such time, then the obligation to pay attorney’s fees shall be void and no court shall enforce the agreement. . . .

(a) Brzowski contends that the demand letter did not specifically reference the attorney fee provision in the Note and thus the assertion in the demand letter that “our client will seek to recover all of its attorney’s fees and expenses of litigation pursuant to Georgia law” was misleading because it could refer to recovery of attorney fees and expenses pursuant to OCGA § 13-6-11 or OCGA § 9-15-1. This contention is without merit.

Although the demand letter did not specifically quote the attorney fee provision in the Note or the statute under which it would seek the attorney fees, it does reference the Note and state that Quantum would seek attorney fees and litigation expenses if the debt was not paid within ten days from receipt. This language is sufficient to satisfy the requirements of OCGA § 13-1-11. Georgia case law requires only substantial compliance with OCGA § 13-1-11 (a) (3), and this Court has construed substantial compliance to include notice as follows: “So long as a debtor is informed that he has [ten] days from receipt of [the] notice within which to pay principal and interest without incurring any liability for attorney fees[,] the legislative intent behind the enactment of OCGA § 13-1-11 (a) (3) has been fulfilled.” There is no requirement that the creditor cite to the specific statute or quote the exact language from the instrument relating to attorney fees.

Decided September 22, 2011

Janis L. Rosser, Elizabeth C. Whealler, for appellant.

Webb, Tanner, Powell, Mertz & Wilson, Jody C. Campbell, for appellee.

(b) Brzowski next argues that the demand letter did not comply with the ten-day notice requirement of OCGA § 13-1-11 because the demand letter stated that he had ten days to cure the default and thirty days in which to contest the amount under the Note. This contention is also without merit. A close reading of the demand letter reveals that Quantum complied with the requirements of OCGA § 13-1-11 by notifying the debtors that they had ten days to repay the debt obligation without incurring additional attorney fees and expenses. The fact that the demand letter also provided the debtors with thirty days to dispute the amount owed under the Note did not alter the obligation to pay the debt within ten days or else incur additional fees.

4. Brzowski has failed to support his remaining enumerations of error with argument or citation of authority in his brief, and thus they are deemed abandoned under Court of Appeals Rule 25 (c) (2).

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

        McDilda v. Norman W. Fries, Inc., 278 Ga. App. 51 (628 SE2d 195) (2006). Accord Woodyard v. Jones, 285 Ga. App. 323, 324 (2) (646 SE2d 306) (2007) (“Even when a trial court adopts a proposed order verbatim, the findings of fact therein are those of the court and may be reversed only if they are clearly erroneous”) (citations, punctuation and footnotes omitted).

        Airport Auth. of City of St. Marys v. City of St. Marys, 297 Ga. App. 645, 647 (678 SE2d 103) (2009).

       In his briefs, Brzowski erroneously states that the trial court granted Quantum’s motion for summary judgment.

       OCGA § 13-5-30 (2).

       (Citations omitted.) John Deere Co. v. Haralson, 278 Ga. 192, 193 (599 SE2d 164) (2004).

       (Citations omitted.) Schroeder v. Hunter Douglas, Inc., 172 Ga. App. 897, 898 (2) (324 SE2d 746) (1984).

       Id. at 899 (2) (“One can certainly execute a valid contract of guaranty whereby he guarantees the payment of future debts incurred by another party.”) (citation omitted).

       This Court has previously upheld similar personal guaranties where no exact promissory note or instrument was identified in the guaranty itself. See Beasley v. Wachovia Bank, 277 Ga. App. 698, 699 (1) (b) (627 SE2d 417) (2006) (“including, but not limited to, all obligations under any notes however and whenever incurred or evidenced, now existing or hereafter contracted or acquired, and all modifications, extensions or renewals thereof”) (punctuation omitted); Capital Color Printing v. Ahern, 291 Ga. App. 101, 103 (661 SE2d 578) (2008) (“any and all invoices for services rendered”); John Deere Co., supra at 193 (“past and/or future extension of credit”); and Schroeder, supra at 898 (2) (“guaranty payment of any and all materials billed”).

        Sysco Food Svcs. v. Coleman, 227 Ga. App. 460, 461-462 (489 SE2d 568) (1997).

       Id.

       Compare id. (personal guaranty agreement not enforceable where the name of the principal debtor, an essential element required to satisfy the Statute of Frauds, was omitted from the document and the trial court would have had to make inferences and consider impermissible parol evidence in order to determine the debtor’s identity).

       See Cotton v. State, 308 Ga. App. 645, 646 (708 SE2d 392) (2011) (“During a nonjury trial, it is presumed that the court is able to sift the wheat from the chaff and select only the legal evidence”) (citation and punctuation omitted).

       [W]hile the Statute of Frauds prohibits using parol evidence to supply completely missing terms, it does not prohibit using parol evidence to explain ambiguities in descriptions. As long as all the necessary terms are contained in signed contemporaneous writings, the statutory requirements and purpose of the Statute of Frauds have been met, whether or not the writings are cross-referenced.
      (Citation and punctuation omitted.) L. Henry Enterprises, Ltd. v. Verifone, Inc., 273 Ga. App. 195, 198 (2) (614 SE2d 841) (2005).

       (Citation, punctuation and emphasis omitted.) Trust Assoc. v. Snead, 253 Ga. App. 475, 477 (1) (c) (559 SE2d 502) (2002).

       But see id. at (1) (b) (demand letter did not meet the requirements of OCGA § 13-1-11 when it failed to identify the notes involved as the underlying basis for indebtedness when there was no specific identification of notes past due, only an indirect allusion).

       Id.


text:
    A11A0857.
    DAVIS v. FOREMAN et al.
    (717 SE2d 295)
   Mikell, Judge.

Marion Davis appeals the trial court’s order granting summary judgment to Robert Foreman and other homeowners in the Dogwood Forest subdivision (collectively, “the plaintiffs”) in this suit concerning an easement. We affirm.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts warrant judgment as a matter of law. The grant of a motion for summary judgment is reviewed de novo, and the evidence and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the nonmovant.

So viewed, the record demonstrates the following relevant facts. Tibsen & Fair, Inc. (“Tibsen”), developed the Dogwood Forest subdivision in Charlton County and recorded a plat referencing a 0.394-acre common area adjoining the St. Marys River for use by residents of the subdivision (the “first plat”). This common area was deeded to the Dogwood Forest Homeowners’ Association, Inc. (“HOA”), and Tibsen sold several lots with deeds that referenced the first plat. About ten months later, Tibsen recorded a new plat (the “second plat”) in the same subdivision that omitted the common area described in the first plat and created a different 0.310-acre common area, and incorporated the original common area into a new lot. This new lot was then conveyed to Marion Davis.

The plaintiffs then filed an action for declaratory judgment and injunctive relief against both the developers and Davis, arguing that they had an easement in the original common area by virtue of their property deeds referencing the first recorded plat. They sought a declaration that they had a continued easement in that area and an injunction, preventing Davis from interfering with their use and enjoyment of such easement. The plaintiffs moved for summary judgment, but the trial court denied the motion. The trial court recognized the “[w]ell-established law . . . that the sale of a single lot which references a plat containing such a common area for the use of purchasers of lots completes the granting of [an] easement.” The trial court nonetheless found that an issue of fact remained as to whether the plaintiffs abandoned their easement interest by virtue of an agreement made by the HOA to trade the 0.394-acre common area for the 0.310-acre common area. Plaintiffs appealed to this Court for interlocutory review of that decision. This Court denied the Application for Interlocutory Appeal.

The plaintiffs then filed a renewed motion for summary judgment in light of additional evidence. In support of this motion, the plaintiffs submitted the affidavit of Robert Foreman, current president of Dogwood Forest Homeowners’ Association, which addressed the factual questions raised in the trial court’s order. Foreman testified that there had never been a discussion or vote at any HOA meeting transferring, exchanging, or abandoning any common area belonging to the HOA and that no written documents concerning a transfer of common areas existed.

1. As a threshold matter, we note that Davis has failed to comply with Court of Appeals Rule 25 (c) (1), which requires that the sequence of arguments in a brief follow the order of the enumeration of errors and be numbered accordingly. Davis includes two enumerations of error, but only one argument section. As we have previously held, Rule 25 (c) (1)

is more than a mere formality. It is a requirement which this Court imposes to ensure that all enumerations of error are addressed and to facilitate review of each enumeration. By failing to comply with the rule, [Davis has] hindered the Court’s review of [his] assertions and [has] risked the possibility that certain enumerations will not be addressed.

However, to the extent that we are able to discern which enumeration is supported in the brief by citation of authority or argument, we will address each enumeration.

2. Davis contends that the trial court erred in granting the plaintiffs’ renewed motion for summary judgment after it denied an earlier motion for summary judgment. Finding no error, we affirm.

The trial court did not err in considering the plaintiffs’ renewed motion for summary judgment after plaintiffs submitted the affidavit of Robert Foreman, the president of the HOA. Nothing in the summary judgment statute limits the number of times a party may make a motion for summary judgment. The trial court may consider a renewed motion for summary judgment at its discretion, especially in the case of an expanded record.

Further, the law of the case rule did not prohibit the trial judge from granting the plaintiffs’ renewed motion for summary judgment in this case. OCGA § 9-11-60 (h) provides in pertinent part that “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” Although “the law of the case rule has formally been abolished ... it [still] applies to rulings by one of the appellate courts; they are binding in all subsequent proceedings, including a second trial.” The denial of an application for discretionary appeal invokes the doctrine of res judicata where the judgment appealed from was final and on the merits. However, “when the judgment being appealed was interlocutory in nature, the denial of an application for discretionary appeal does not operate as res judicata.” This is because “the denial could have been based on the appellate court’s desire to wait until a final judgment was entered before exercising appellate review, rather than a determination on the merits.” An order denying a motion for summary judgment is nonfinal and hence interlocutory in nature.

On their first appearance before this Court, the plaintiffs sought review of the trial court’s order denying their original motion for summary judgment. Because the trial court’s order was nonfinal, this Court’s denial of Davis’s Application for Interlocutory Review does not operate as res judicata.

3. Davis next argues that the trial court erred in granting the plaintiffs’ motion for summary judgment because an issue of material fact existed as to whether the plaintiffs, as members of the HOA, entered into an express agreement to abandon the original common area. We disagree.

Georgia law is clear that “where a developer sells lots according to a recorded plat, the grantees acquire an easement in any areas set apart for their use.” An easement “acquired in this manner is considered an express grant, and is an irrevocable property right. The rationale is that the grantees of the property have given consideration for its enhanced value in the increased price of their lots.” The “sale of a single lot with reference to the plat would complete the granting of an easement or an offer of dedication of the area to the public.” In the present case, it is undisputed that the plaintiffs acquired an easement in the original 0.394-acre common area because they purchased lots with deeds referencing the first plat.

Davis argues that the plaintiffs, as members of the HOA, agreed to exchange their easement in the original 0.394-acre common area for an easement in a different common area, as indicated in the second plat. The plaintiffs’ easement in the original common area cannot be lessened by the recording of the second plat that did not include the original common area, but instead substituted a different common area. Rather, the grantees of an easement “cannot be deprived of that right except by express abandonment, or by such conduct on their part as would be tantamount to express abandonment.” Thus, in order for the subdivider to properly exchange one common area for another “equal” common area, the grantees of the original easement must have expressly abandoned their original easement.

The Supreme Court of Georgia has held that such abandonment may be effectuated by an action of a homeowners’ association. In Hampton Ridge, this Court found that homeowners in a subdivision who purchased lots including easements set aside for an area dedicated to recreational use expressly abandoned that easement when, subsequent to the filing of the plat, they agreed to be bound by a Declaration of Covenants and Restrictions which stated that the developer would retain fee simple title and “all rights” to the recreational easement. The Court reasoned that by signing over “all rights” to the easement to the homeowners’ association, the lot owners had relinquished their easements in the recreational facility.

In the present case, unlike in Hampton Ridge, Davis has not presented any evidence that either the plaintiffs or the HOA on their behalf abandoned their interest in the original easement. After reviewing the record, we conclude that Davis has failed to present evidence sufficient to create a triable issue of fact as to whether the HOA agreed to exchange the original common area easement for another.

When a motion for summary judgment is made and supported as provided in this Code section, 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 this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Decided September 22, 2011.

James E. Stein, for appellant.

Douglas L. Gibson, Kenneth A. Taft, for appellees.

The plaintiffs renewed motion for summary judgment was supported by the affidavit of Robert Foreman, the first purchaser of a lot in the subdivision and president of the HOA. In his affidavit, Foreman testified that there had never been any discussion or vote at any HOA meeting regarding a transfer, trade, exchange or abandonment of any common area belonging to the HOA. Foreman also testified in his capacity as the president of the HOA that there is no document reflecting any agreement to transfer, trade, exchange or abandon the original common area easement. Davis did not provide any affidavits or other evidence creating an issue of fact on this issue, and the trial court did not err in granting summary judgment to the plaintiffs.

Judgment affirmed.

Smith, P J., and Dillard, J., concur.

       To the extent that the appellant’s brief is supported by attachments that are not part of the certified record, those attachments are not considered by this Court. Court of Appeals Rule 24 (g).

       This Court, rather than the Supreme Court, has jurisdiction of this appeal because it concerns issues involving use of and access to land rather than title to land. Ga. Const, of 1983, Art. VI, Sec. VI, Par. Ill (1); see Henderson v. Easters, 178 Ga. App. 867, 869 (1) (345 SE2d 42) (1986).

       OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Wynns v. White, 273 Ga. App. 209, 210 (614 SE2d 830) (2005).

       See Smith v. Bruce, 241 Ga. 133, 140 (1) (244 SE2d 559) (1978).

        Foreman v. Davis, Case No. A10I0006 (Sept. 10, 2009).

       (Citation omitted.) Brown v. Cooper, 237 Ga. App. 348 (514 SE2d 857) (1999).

       OCGA § 9-11-56. See Gold Creek SL, LLC v. City of Dawsonville, 290 Ga. App. 807, 813 (2), n. 4 (660 SE2d 858) (2008).

        Fuller v. Greenville Banking Co., 230 Ga. App. 63, 65 (2) (495 SE2d 320) (1997).

       (Citation and punctuation omitted.) Continental Corp. v. Dept. of Transp., 185 Ga. App. 792, 793 (1) (366 SE2d 160) (1988).

        Hook v. Bergen, 286 Ga. App. 258, 261 (1) (649 SE2d 313) (2007).

       (Citation omitted.) Henderson v. Justice, 237 Ga. App. 284, 287 (1) (514 SE2d 713) (1999).

       (Citation omitted.) Id.

       See OCGA § 9-11-56 (h).

       (Citation omitted.) Walker v. Duncan, 236 Ga. 331, 332 (223 SE2d 675) (1976). Accord Higgins v. Odom, 246 Ga. 309 (271 SE2d 211) (1980); Patterson v. Powell, 257 Ga. App. 336, 337 (571 SE2d 400) (2002)

       (Footnote omitted.) Patterson, supra.

       (Citation omitted.) Smith, supra at 141 (1).

       Id. at 144 (2) (While a subdivider “may resurvey and replat the unsold portions of property shown in the first subdivision” in order to enlarge the current lot-owners’ easements in areas meant for common usage, he “cannot restrict, diminish, or take away property rights . . . granted by the first plat where deeds have been made with reference thereto”) (citation omitted).

       (Citation omitted.) Hampton Ridge Homeowners Assn. v. Marett Properties, 265 Ga. 655, 656 (1) (460 SE2d 790) (1995).

       Id.

       Id.

       Id.

       OCGA § 9-11-56 (e).


author: MCFADDEN, Judge.

text:
    A11A1233.
    WILSON v. THE STATE.
    (717 SE2d 300)
   MCFADDEN, Judge.

Somora Wilson appeals from the trial court’s denial of his plea in bar on speedy trial grounds. We pretermit the threshold question, whether the relevant delay, eleven months and ten days, was long enough to be presumptively prejudicial and to trigger an inquiry under Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). See State v. Pickett, 288 Ga. 674, 675 (2) (a) (706 SE2d 561) (2011) (“A delay approaching one year is generally deemed to be presumptively prejudicial.”). We hold, as did the trial court, that Wilson has not met his burden under the four-factor Barker balancing test and affirm.

On appeal from a pretrial ruling on a defendant’s plea in bar, the issue is whether the trial court abused its discretion in balancing the four factors set forth in Barker: “(1) the length of the delay; (2) the reason for the delay and whether this is attributable to the defendant or the state; (3) the timeliness of the defendant’s assertion of the right to a speedy trial; and (4) prejudice to the defendant.” (Citation and punctuation omitted.) State v. Johnson, 274 Ga. 511, 512 (555 SE2d 710) (2001). The trial court’s decision must be affirmed in the absence of an abuse of discretion. Id.

So viewed, the record shows that Wilson and his co-defendant, Stephanie McCree, were arrested in November 2005 on charges of cruelty to children concerning injuries inflicted upon their child, Somora Wilson, Jr. McCree and Wilson were indicted on May 1, 2008, for three counts of cruelty to children in the first degree and five counts of aggravated battery.

After two scheduled arraignments at which he failed to appear, Wilson pled not guilty on April 7, 2009. His case was set for trial on June 4, 2009. At that time, the state announced that it was ready for trial, but Wilson requested a continuance, which was granted to August 13. The case proceeded to trial a few days later, with both the state and the defense presenting evidence. On August 27, however, a mistrial was granted during jury deliberations because a portion of a previously admitted audiotape was improperly played at the jurors’ request.

At no time before the grant of the mistrial did Wilson claim that he had been prejudiced by any pretrial delay. On October 5, 2009, however, Wilson filed two pleas in bar — the first on the basis of pretrial delay and the second on the basis of prosecutorial misconduct in the first trial. A hearing was not scheduled because Wilson failed to submit a rule nisi with either plea. After a change in the state’s attorneys, the state inquired in May 2010 as to the case’s status, including any pending motions. Upon learning that no rule nisi had been submitted, the state submitted a rule nisi as to both of them.

At the hearing held on July 9, 2010, Wilson offered no new evidence as to any prejudicial delay. The state tendered evidence from the clerk’s digital file showing that the case had been listed as “closed,” perhaps because Wilson’s pleas had been entered as “pleas” rather than as “motions.” The trial court denied both pleas with orders entered on August 5, 2010.

In its order concerning the claim of prejudicial delay, the tried court held that by not moving for dismissal before the first trial, Wilson had waived any claim of delay up to that time. The trial court also held that by failing to inquire about when his pleas were to be heard, Wilson had contributed to any delay since mistrial, whereas the clerk’s listing of the pleas as such — rather than as motions — merely “may have contributed” to such delay.

Proceeding to a balancing of all four Barker factors, the trial court held that (a) the 29-month delay between Wilson’s November 2005 arrest and his April 2009 indictment was presumptively prejudicial, but not itself sufficient to show prejudice; (b) there was no evidence of intentional delay by the state, so that the unintentional delay was to be weighed less heavily against it; (c) Wilson was responsible for much of the delay in obtaining a speedy trial, including the five months elapsing between the case’s first appearance on a calendar and the lifting of bench warrants based on his failures to appear, the continuance from June to August 2009, and the failure to obtain a hearing after the filing of his pleas, with this factor “weighting] heavily against” him; and (d) there was no evidence of prejudice given that Wilson was incarcerated for a total of 19 days, 14 of which were attributable to his failures to appear, and that the August 2009 trial had proceeded with no suggestion of prejudice.

The trial court also denied Wilson’s second plea in bar, finding that the state had not engaged in any prosecutorial misconduct. Wilson has not appealed the trial court’s order concerning his second plea.

The Barker analysis has two stages. First, the court must determine whether the pretrial delay is sufficiently long to be considered presumptively prejudicial. Ferguson v. State, 303 Ga. App. 341, 342 (693 SE2d 578) (2010). If so, the court must apply the four-factor balancing test. Id. The Supreme Court of Georgia has held that where a mistrial has already been had, “the relevant time frame for purposes of [a] motion to dismiss on constitutional speedy trial grounds is from the date of the mistrial. . . through the date the motion was denied.” Brewington v. State, 288 Ga. 520, 521 (2) (705 SE2d 660) (2011), citing Jakupovic v. State, 287 Ga. 205, 206 (1) (a) (695 SE2d 247) (2010). The relevant time period in this case is thus from the trial court’s order of a mistrial on August 27, 2009, to its denial of Wilson’s plea in bar on August 5, 2010, or eleven months and ten days.

Pretermitting whether a delay of eleven months and ten days is presumptively prejudicial, see Pickett, supra, we conclude that Wilson has not met his burden under the second stage of the Barker inquiry. The record supports the trial court’s finding that there was no intentional delay by the state. “[I]f the delay attributable to the state’s preparation of its case is not deliberate but is negligent, it is weighed as a ‘relatively benign’ factor against the state.” Jackson v. State, 272 Ga. 782, 784 (534 SE2d 796) (2000).

Wilson did not assert his speedy trial claim until more than three years and nine months after his arrest. Under the procedural circumstances of this case, the trial court did not err in weighing this factor against Wilson. Ogletree v. State, 303 Ga. App. 581, 583 (c) (693 SE2d 909) (2010) (delay in demanding speedy trial — four years, four months after arrest and almost five months after grant of mistrial — weighed against defendant). See also Over v. State, 302 Ga. App. 215, 218 (3) (690 SE2d 507) (2010) (22-month delay in demanding a speedy trial weighed against defendant).

Decided September 22, 2011.

Mark J. Issa, Gerard B. Kleinrock, for appellant.

Robert D. James, Jr., District Attorney, Anna W. Davis, Assistant District Attorney, for appellee.

Finally, the record supports the trial court’s finding that there was no evidence of prejudice. When evaluating this factor, courts must consider the “three interests which the speedy trial right is designed to protect: preventing oppressive pretrial incarceration, minimizing anxiety and concern of the defendant, and, most importantly, limiting the possibility that the defense will be impaired.” Nelloms v. State, 274 Ga. 179, 181 (549 SE2d 381) (2001).

Wilson did not suffer oppressive pretrial incarceration; he was incarcerated for a total of 19 days, 14 of which were attributable to his failures to appear. He did not testify about suffering any anxiety or concern. As for the most important third factor, see Nelloms, supra at 181, at no time before the grant of the mistrial did Wilson claim that he had been prejudiced by any pretrial delay, and at the hearing on the plea, Wilson offered no new evidence as to any prejudicial delay.

Because there was no evidence of intentional delay by the state, and because Wilson delayed asserting his right and has not shown prejudice, Wilson has failed to show that the trial court abused its discretion in denying his speedy trial claim. See Johnson, supra at 512. Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


author: MILLER, Presiding Judge.

text:
    A11A1446.
    WILLIAMS v. THE STATE.
    (717 SE2d 264)
   MILLER, Presiding Judge.

Gregory McDonald Williams appeals the trial court’s order denying his plea in bar based upon double jeopardy grounds. He contends that a retrial was barred since the State goaded him into moving for a mistrial. Since the record evidence supports the trial court s decision, we affirm.

“The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.” (Citations and punctuation omitted.) Allen v. State, 302 Ga. App. 852 (691 SE2d 908) (2010).

In this case, Williams was charged with speeding (OCGA § 40-6-181 (b) (5)), an open container violation (OCGA § 40-6-253 (b) (1)), and driving under the influence (OCGA § 40-6-391 (a) (1), (5)). A jury trial ensued. During closing arguments, the prosecutor incorrectly asserted that Williams “had some margaritas at 2:00[,]” which misstated the evidence that had been presented at trial. Williams did not interpose a timely objection when the misstatement was made. Rather, Williams’s counsel did not discover the misstatement until after the jury had retired for deliberations, at which time he reviewed the videotape of Williams’s traffic stop to determine what statements were made concerning Williams’s alcohol consumption. When Williams’s counsel raised the issue, the prosecutor acknowledged his mistake and moved for a mistrial. Williams’s counsel initially opposed the mistrial motion, contending that a mistrial was not necessary and further stating that he knew that “the prosecution didn’t make th[e] error to goad [the defense] into moving to mistrial[.]” The trial court denied the State’s motion for a mistrial, but considered alternative curative actions.

As a form of curative action, Williams’s counsel proposed that the videotape evidence be replayed for the jury. The trial court, however, declined to replay the videotape in the absence of the jury’s request. The trial court recessed the proceedings to allow counsel an opportunity to discuss other alternatives. When the proceedings resumed, Williams’s counsel announced that he was joining in the State’s motion for a mistrial, in light of the trial court’s denial of his request to replay the videotape to the jury. In the absence of any further suggestions for resolving the issue, the trial court granted the joint motion for a mistrial.

Thereafter, Williams filed a plea in bar, contending that double jeopardy barred his further prosecution. The trial court denied the motion, finding that the prosecutor’s mistake was not intentional and was not intended to goad Williams into making a motion for mistrial.

We discern no error. As an initial matter, to the extent that Williams subsequently consented to and joined in the State’s motion for a mistrial, he could not later use the mistrial as the basis for a plea of double jeopardy. See Bellew v. State, 304 Ga. App. 529, 532 (1) (697 SE2d 249) (2010). Notwithstanding Williams’s contention that he was goaded into joining the mistrial motion, no basis for reversal has been shown.

Where, as here, a mistrial is granted at the request of a criminal defendant, retrial is not prohibited on the basis of double jeopardy unless it is established that the State intended to goad the defendant into moving for a mistrial in order for the State to avoid a reversal due to prosecutorial or judicial error, or otherwise to obtain a more favorable chance of a guilty verdict on retrial. Whether the prosecutor intended to goad the defendant into moving for mistrial calls for the trial court to make a finding of fact by inferring the existence or nonexistence of intent from objective facts and circumstances. When the trial court sits as the fact-finder, its resolution of factual issues will be upheld by the appellate court unless it is clearly erroneous. A trial court’s findings of fact will not be deemed to be clearly erroneous if there is any evidence to support them, and this holds true even if the findings are based upon circumstantial evidence and the reasonable inferences which flow from them.

(Citations and punctuation omitted.) Frye v. State, 308 Ga. App. 35, 37 (706 SE2d 581) (2011). See also Oregon v. Kennedy, 456 U. S. 667 (102 SC 2083, 72 LE2d 416) (1982).

The record in this case supports the trial court’s finding that the prosecutor s mistake was unintentional and was not intended to goad Williams’s counsel into moving for a mistrial. The record reflects that the prosecutor’s mistake was neither blatant, deliberate, nor made in bad faith. No objection was raised at the time that the mistake was made. And when Williams’s counsel later discovered and raised the issue, he likewise expressed a belief that the prosecutor’s misstatement was “unintentional” and that “the prosecution didn’t make th[e] error to goad [the defense] into moving to mistrial[.]” The evidence thus reflects that “[ajlthough the prosecutor was mistaken or confused as to the [evidence regarding the type of alcoholic beverage that Williams consumed], the record shows the prosecutor’s mistake[ ] [was] made in good faith and reveals the state’s intention was not to provoke mistrial.” (Citation and punctuation omitted.) State v. Oliver, 188 Ga. App. 47, 51 (3) (372 SE2d 256) (1988). See also Mathis v. State, 276 Ga. App. 587, 588 (623 SE2d 674) (2005) (concluding that retrial was not barred since the prosecutor’s improper comments during closing argument were not made with an objective to abort the trial and subvert double jeopardy protections).

Decided September 8, 2011

Reconsideration denied September 27, 2011

Allen M. Trapp, Jr., for appellant.

Moreover, “the prosecution had already built its case against the defendant and had no reason to abort the first trial by forcing a mistrial.” (Citation and punctuation omitted.) Oliver, supra, 188 Ga. App. at 52 (3). Regardless of the type of alcoholic beverage that Williams had consumed, the evidence was sufficient to support the charged offenses. See OCGA §§ 40-6-181 (b) (5); 40-6-253 (b) (1); 40-6-391 (a) (1), (5). Under these circumstances, the prosecutor’s mistaken argument appears to have been made in a zealous attempt to obtain a conviction, rather than to force a mistrial. See Roscoe v. State, 286 Ga. 325, 327 (687 SE2d 455) (2009) (affirming the denial of the defendant’s plea in bar since the evidence established that the prosecutor’s erroneous opening statements were made while aggressively seeking a conviction, not a mistrial); State v. Traylor, 281 Ga. 730, 734 (642 SE2d 700) (2007) (concluding that defendant’s retrial was not barred since there was no evidence to support a finding that the prosecutor’s misconduct was intended to terminate the trial, rather than enhance the likelihood of conviction).

Since the evidence supports the trial court’s findings that the prosecutor’s mistake did not rise to the level of intentional prosecu-torial misconduct and was not intended to subvert double jeopardy protections, we affirm the denial of Williams’s plea in bar.

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

Robert Stokely, Solicitor-General, Sandra N. Wisenbaker, Assistant Solicitor-General, for appellee.

       The trial transcript shows that a videotape of Williams’s traffic stop was admitted into evidence and was played for the jury at trial. In his closing argument, the prosecutor replayed the videotape and directed the jury to listen to certain statements that Williams had made during the stop. The videotape, however, has not been included in the appellate record for our review, and thus, we are unable to determine what statements were made and referenced. Nevertheless, the prosecutor later conceded that he had misunderstood and misstated the videotape evidence. The trial transcript otherwise reflects that Williams admitted that he had consumed two and a half 12-ounce bottles of beer, rather than margaritas, prior to the stop.

       In its jury charge, the trial court had previously instructed the jurors to determine the facts of the case from all of the evidence presented, and that counsels’ closing arguments did not constitute evidence.

       At the time of trial, the trial court and counsel were unaware that the jurors had in fact expressed a desire to review the videotape during their deliberations. Williams later introduced an affidavit and testimony from one of the trial jurors, who stated that they had asked the bailiff whether they could see the videotape again. The bailiff had responded, without authority, that they were not allowed to review the videotape. The record otherwise reflects that several written questions from the jury were presented to the trial court for a response, but none of those questions sought to have the videotape replayed. Although the bailiffs response to the jurors’ request was improper and unauthorized, such has no bearing upon the plea in bar issue since the exception to retrial “was not meant to be extended to embrace conduct other than that of the judge and the prosecutor.” (Citation and punctuation omitted.) State v. Traylor, 281 Ga. 730, 733 (642 SE2d 700) (2007).


author: MlKELL, Judge.

text:
    A11A1279.
    HARRISON v. THE STATE.
    (717 SE2d 303)
   MlKELL, Judge.

Paul Wayne Harrison appeals the denial of his plea in bar, alleging that a delay between his arrest and indictment violated his speedy trial rights under the Georgia Constitution and the Sixth Amendment of the United States Constitution. He seeks acquittal and dismissal of an eight-count indictment charging him with, inter alia, rape and aggravated child molestation, arguing that the trial court erred in its application of the factors outlined by the United States Supreme Court in Barker v. Wingo when it found that he had not been subjected to oppressive pretrial incarceration and had failed to show prejudice to his legal defense. Because the trial court did not abuse its discretion in denying the plea in bar, we affirm.

“[W]e review the trial court’s denial of a motion to dismiss an indictment on speedy trial grounds for abuse of discretion and defer to the trial court’s findings of fact and its weighing of disputed facts.”

So viewed, the evidence shows that Harrison was arrested in Florida, then extradited to and arrested in Mississippi on November 29, 2006, after his ex-girlfriend alleged, in a meeting with an investigator for the Forsyth County Sheriffs Office, that he had sexually abused her young daughter both at her home in Hinds County, Mississippi, and at his home in Forsyth County, Georgia. On December 6, 2006, while Harrison still was incarcerated in Mississippi, the Forsyth County Sheriffs Office completed its investigation of him and the following day posted warrants for his arrest on charges related to the same victim, but separate from the Mississippi charges and asked Hinds County officials to place a “hold” on him.

Harrison remained incarcerated in Mississippi for approximately two years. Near the end of that time, on August 11, 2008, a Hinds County assistant district attorney wrote a letter to the Forsyth County District Attorney’s Office indicating that Harrison and his lawyer seemed likely to accept a plea offer in which Harrison would agree to a twenty-year confinement with release on time served and to five years of supervised probation, have no contact with the victim and register as a sex offender, as long as the Forsyth County District Attorney’s Office “agrees to dismiss, with prejudice, your pending charges . . . involving the same victim.”

“[L]et me know whether you believe you can obtain a conviction against Paul [Harrison] in your jurisdiction. I truly believe Paul abused this child and at the very least needs to be registered as a sex offender,” the letter continues. But because the case involved allegations that the victim’s mother had an extramarital affair with Harrison and was abused by him, and because the alleged sexual abuse of the child was not disclosed until about a year after it occurred, the Hinds County assistant district attorney wrote:

I do not have a reasonable expectation of obtaining a conviction at trial. ... I don’t believe I can afford to try this case. Should you believe your jurisdiction is better suited for convicting Paul, I am prepared to dismiss my case and allow him to be extradited to Forsyth County to stand trial.

On September 25, 2008, a Mississippi circuit court granted the Hinds County District Attorney’s Office’s motion for nolle prosequi, and on November 4, 2008, the Georgia arrest warrants posted in 2006 were executed against Harrison and he was extradited to Georgia.

The Forsyth County Superior Court granted Harrison’s motion for bond on January 9, 2009. Unable to post bond, he twice motioned to reduce bond; those motions were denied.

On July 9, 2010, Harrison filed his plea in bar alleging an unconstitutional delay in indictment. A grand jury indicted him three days later, on July 12, 2010. The Forsyth County Superior Court heard the plea in bar on August 13, 2010; Harrison amended his plea in bar the same day. The trial court then held another hearing on September 17, 2010, to address the delay in the indictment and possible prejudice to the defendant.

On September 24, 2010, the trial court issued a written order finding presumptive delay in Georgia’s indictment of Harrison, but also finding that Harrison had not shown prejudice resulting from the delay. The trial court found no violation of Harrison’s constitutional right to a speedy trial. Harrison appeals.

1. Constitutional Framework. Two types of pretrial delay have been recognized as potential violations of an accused’s speedy trial rights. The first precedes arrest or indictment and may be triggered during the investigative stage of a case if a defendant is held in custody by the state during that period. This pre-arrest, pre-indictment delay possibly implicates due process guarantees under the Fifth and Fourteenth Amendments. The second type of delay may occur after arrest or indictment, potentially triggering Sixth Amendment protections.

Although Harrison raises, briefly, the possibility of due process violations triggered by pre-arrest, pre-indictment delay, we do not find merit in that contention. Harrison was arrested in Florida and subsequently extradited, arrested and incarcerated in Mississippi in 2006. During a portion of that time, Georgia authorities were investigating him. But because he had not been arrested by Georgia authorities during this period, we need not reach the issue of whether his due process rights were violated.

2. Threshold Inquiry. Therefore, this court’s analysis begins with the second type of potential delay, a review of which is triggered by the November 4, 2008, execution of the Georgia arrest warrants.

When considering a motion to dismiss on speedy trial grounds, the court conducts the two-tiered threshold inquiry set forth in the United States Supreme Court decisions Barker v. Wingo and Doggett v. United States. The first tier of the analysis considers whether the delay is long enough to be presumptively prejudicial. Only if the delay is found to be presumptively prejudicial must the court engage in the second tier of the analysis by applying the four-factor Barker-Doggett balancing test to assess whether the accused was deprived of a speedy trial: (1) whether the delay is uncommonly long; (2) the reason for the delay, and whether the defendant or the government is more responsible; (3) the defendant’s assertion of his speedy trial rights in due course; and (4) whether the defendant was prejudiced by the delay. None of the four factors, standing alone, is necessary or sufficient to find a deprivation of the right to a speedy trial.

Harrison’s stated enumerations of error focus on the prejudice factor of the Barker-Doggett test, and on one of the interests stemming from that factor, oppressive pretrial incarceration. However, because a Barker-Doggett analysis requires a balancing of all factors, our analysis, like the trial court’s, will discuss them all.

The trial court in the instant case found that the length of the delay in Georgia was “approximately 22 months,” and was presumptively prejudicial. “The pretrial delay is measured from the accused’s arrest, indictment, or other formal accusation, whichever comes first ... to the trial or, if the accused files a motion to dismiss the indictment, until the trial court denies the motion.” “For serious crimes lacking unusual complexities, one year generally marks the point at which expected deliberateness in the prosecution of a criminal matter turns into presumptively prejudicial delay.”

We agree that the delay was presumptively prejudicial, and move to a Barker-Doggett analysis to determine if Harrison’s constitutional speedy trial rights were violated.

3. The Barker-Doggett Factors.

(a) Length of Delay. The first factor in a Barker-Doggett analysis presents the question of whether the delay was uncommonly long. The trial court in the instant case made no such finding. Harrison raises this point in the body of his appeal, but does not specifically cite it as an enumeration of error. Our state Supreme Court, in a similar instance, found that “inasmuch as the trial court has effectively weighed this factor in appellant’s favor, it did not abuse its discretion.” We also find no abuse of discretion.

(b) Reasons for the Delay. Analysis of this factor requires a determination of whether the government or the defendant is more responsible for the delay.

At a hearing, the Forsyth County district attorney told the trial court that the delay occurred in part because she thought the case could be resolved with a plea, and because high turnover in the district attorney’s office meant she had to carry a large caseload. The district attorney told the court that “[t]he delay was in no way specific to this Defendant or any attempt to try and . . . force him into a pleading, or punishing him because of the fact that we could not resolve this case with a plea.” Harrison did not contest this rationale, nor did he allege any strategic or deliberate delay on the part of the state. Analysis of this factor turns on an assessment of a range of reasons for delay on the part of the state, including:

delay resulting from, or in spite of, the State’s diligent prosecution of the case, which will rarely support a speedy trial claim, to deliberate delay to gain an improper advantage over the accused. . . . The latter will virtually always result in a dismissal of the case against the defendant, because it strikes at the very heart of the speedy trial guarantee. The delay in many cases lies with some type of official neglect, which falls within the middle of the spectrum.
Our cases reflect that negligence is entitled to minimal weight against the State only where it results either from the prosecution’s inadvertent neglect of the case or from solely administrative factors over which the prosecution has no control, such as overcrowded court dockets or understaffed law enforcement agencies.

In this case, the turnover in the district attorney’s office would constitute a solely administrative factor. The trial court recognized that the defendant’s involvement in plea negotiations also contributed to the delay, but weighed this factor more heavily against the state than the defendant. Accordingly, we find no abuse of discretion.

(c) Assertion of the Right to Speedy Trial. Harrison did not assert his right to speedy trial until the filing of his motion to dismiss and acquit, nearly two years after his Georgia arrest. Because Harrison waited so long to assert his right to speedy trial, “this factor, which must be given strong evidentiary weight. . . weighs against him. . . . That is because it is the responsibility of the defendant to assert the right to a speedy trial since delay often does work to a defendant’s advantage.” The trial court found that his failure to assert a demand weighed against him. We find no abuse of discretion, but note that our Supreme Court has held that “an extended delay in asserting the right to a speedy trial should normally be weighed heavily against the defendant.”

(d) Prejudice to the Defendant. The trial court found that the prejudice factor “weighs heavily against the Defendant.”

[Wjhether a defendant needs to show particularized prejudice depends upon an evaluation of the first three factors in the balancing test, and whether those factors weigh against the government. The central holding of Doggett was that when there is significant delay (the first factor), caused by the government (the second factor), then the resulting presumption of prejudice, albeit unspecified, if neither extenuated, as by the defendant’s acquiescence (the third factor), nor persuasively rebutted by the State, entitles the defendant to relief.

Here, the trial court weighed only the first two factors against the state, finding as to the third factor that Harrison failed to assert his speedy trial right. Thus, the trial court had no obligation to find actual prejudice.

The court also “must examine the delay relative to all other factors, including the complexity of the case and the evidence existing on the date the State initiated the prosecution.”

Harrison contends that the case was of minimal complexity and that the state had concluded its evidence gathering in 2006. However, the state contends that the case involved numerous counts of serious felonies, all involving out-of-state witnesses and that Georgia’s prosecution did not begin until the Mississippi case resolved and the prosecutors from both offices first communicated in 2008. Nothing else in the record addresses the complexity of the case. Because on appellate review all inferences are to be drawn in support of the decisions of the finder of fact, we defer to the trial court’s decision to weight the prejudice factor heavily against the accused.

To reach that decision, the trial court correctly considered three interests comprising the types of prejudice that may be associated with an unreasonable delay before trial: “preventing oppressive pretrial incarceration, minimizing anxiety and concern of the defendant, and limiting the possibility that the defense will be impaired.”

The trial court addressed each factor separately.

(i) Oppressive Pretrial Incarceration. The trial court found, without explanation, that the interest in preventing oppressive pretrial incarceration weighed in favor of the defendant.

While Harrison was incarcerated for 22 months in Georgia, a fact raising a presumption of prejudice, our Supreme Court has held that pretrial incarceration of 27 months “does not automatically establish prejudice in the defendant’s favor for purposes of the Barker analysis absent proof of sub-standard conditions or other oppressive factors beyond those that necessarily attend imprisonment.” Harrison also testified that he was receiving medication, as needed, for an injury sustained at the Mississippi prison, and that he had not been in any altercations while incarcerated in Georgia.

(ii) Minimizing Anxiety and Concern of the Accused. The trial court, noting that although the defendant “testified that he is frustrated and has had some unpleasant experiences while incarcerated in Georgia, . . . also testified that he was ‘pretty at ease’ with incarceration.” Thus, the trial court found this factor to be “relatively neutral.” Harrison’s testimony before the trial court shows, in our view, little anxiety beyond that which would normally attend incarceration. While he testified that he felt “sedated — suspended animation, you’re like in a coffin with a telephone,” he also testified “I’m pretty good at dealing with my stressing,” and that he was “hanging in there.”

(iii) Limiting Impairment to the Defense. The trial court found that overall, the prejudice factor “weighs heavily against Defendant” because he failed to show prejudice to his legal defense and did not point to destruction or loss of evidence or unavailability of witnesses.

Impairment of the defense is the most important interest considered under the prejudice factor “because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.”

The weight given to the prejudice factor may be bolstered if the defendant can demonstrate some actual impairment to his defense in addition to prejudice that is presumed from the passage of time. Likewise, the weight given to presumed prejudice may be reduced or even eliminated if the State can show that the defense has not, in fact, been substantially impaired.

A review of the record shows no demonstration of actual impairment. Harrison alleges that he has had a difficult time staying in touch with people who could serve as character witnesses for him, and that with the passage of time, “memories fade.” However, he did not identify any specific character witnesses, nor indicate whether or not they were available or in what way their testimony might be material to his defense. To prevail on this assertion, he “must show that the unavailable witnesses could supply material evidence for the defense.”

As for the fading of memories, Harrison “must present more than vague or conclusory statements; he must offer specific evidence. Merely asserting that memories have faded over time does not satisfy this requirement.”

Upon consideration of the three interests crucial to evaluating prejudice, we find that Harrison has failed to show he was prejudiced by the delay. This factor weighs heavily against him, and we find no abuse of discretion.

(e) Balancing the Four Factors. The trial court weighed the four factors, finding no speedy trial violation because Harrison had suffered no prejudice to his legal defense.

While we do not condone the state’s delay in this action, Harrison’s own tardiness in raising his right to a speedy trial “weighs heavily against him[,] as does his failure to show prejudice in light of such delay. . . . This is particularly true where, as here, there is no evidence that the delay was the result of a deliberate attempt by the State to hamper the defense.”

Decided September 27, 2011.

Jeffrey L. Cox, for appellant.

Penny A. Penn, District Attorney, for appellee.

A review of the trial court’s application of the Barker-Doggett factors leads us to conclude that the trial court did not abuse its discretion in denying Harrison’s plea in bar and motion to dismiss, and in finding that his constitutional right to a speedy trial was not violated.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       407 U. S. 514, 530 (IV) (92 SC 2182, 33 LE2d 101) (1972).

       (Citations and footnote omitted.) Grizzard v. State, 301 Ga. App. 613, 614 (688 SE2d 402) (2009).

        Sanders v. State, 132 Ga. App. 580, 582 (2) (a) (208 SE2d 597) (1974).

       See Jones v. State, 284 Ga. 320 (1) (667 SE2d 49) (2008).

       Id. at 322 (2). Accord State v. Thaxton, 311 Ga. App. 260 (715 SE2d 480) (2011).

       Supra.

       505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992).

        Brewington v. State, 288 Ga. 520-521 (1) (705 SE2d 660) (2011). Accord Ward v. State, 311 Ga. App. 425 (715 SE2d 818) (2011).

        Doggett, supra at 651 (II), citing Barker, supra.

        State v. Redding, 274 Ga. 831, 832 (561 SE2d 79) (2002).

       Although the trial court did not reveal the relevant dates from which it made this calculation, a span of 22 months and 20 days elapsed between Harrison’s arrest and the trial court’s denial of his plea in bar on September 24, 2010.

       (Citation, punctuation and footnote omitted.) Grizzard, supra.

       (Punctuation and footnote omitted.) State v. Shirley, 311 Ga. App. 141, 143 (2) (714 SE2d 636) (2011).

         Doggett, supra at 651 (II). Accord Ruffin v. State, 284 Ga. 52, 56 (2) (b) (i) (663 SE2d 189) (2008).

       Harrison contends that the delay includes the time he spent incarcerated in Mississippi, for a total of 45 months, beginning at the issuance of the Georgia warrants and “hold” placed on him in 2006. We disagree, as did the trial court, and find no abuse of discretion. Harrison did not become subject to the full force of Georgia law until the warrants were executed in 2008.

        Brewington, supra at 522-523 (3) (b) (i) (trial court did not consider length of delay beyond threshold question of presumptive prejudice and did not discuss whether delay was uncommonly long). But see Butler v. State, 309 Ga. App. 86, 89-90 (1), (2) (a), (b) (709 SE2d 293) (2011) (error found when state conceded 32-month delay was presumptively prejudicial, but trial court did not address whether delay was uncommonly long). Despite the scholarly opinion by Judge Doyle in Butler, that court clearly was unaware that only weeks before, the Supreme Court of Georgia had issued its ruling in Brewington. As the cases are factually dissimilar, we need not overrule Butler.

        Brewington, supra at 521 (1).

       (Punctuation and footnotes omitted.) Shirley, supra at 143 (3) (b).

       (Citations and punctuation omitted.) Ditman v. State, 301 Ga. App. 187, 193 (2) (b) (687 SE2d 155) (2009).

       (Citations and punctuation omitted.) Ward, supra at 430 (4).

       Harrison counters that he unsuccessfully motioned to reduce bond more than once, asserting, “This is not a case of the Defendant sitting in jail and not seeking his release pre-indictment.” To the extent Harrison means to argue that bond reduction motions may constitute speedy trial requests, we find this utterly without merit. A motion for bond reduction is designed to secure a defendant’s perhaps temporary release, not accelerate his trial date. See State v. Johnson, 274 Ga. 511, 513 (3) (555 SE2d 710) (2001) (even request for jury trial found insufficient to invoke speedy trial rights).

       (Citations omitted; emphasis in original.) State v. Porter, 288 Ga. 524, 529 (2) (c) (3) (705 SE2d 636) (2011).

       (Citations, punctuation and footnotes omitted.) Hayes v. State, 298 Ga. App. 338, 347 (2) (d) (680 SE2d 182) (2009).

       (Citations omitted.) Id. at 348 (2) (d).

       (Citation omitted.) Layman v. State, 284 Ga. 83, 86 (663 SE2d 169) (2008).

       (Punctuation and footnote omitted.) Jackson v. State, 272 Ga. 782, 785 (534 SE2d 796) (2000). Accord Ditman, supra at 195 (2) (d) (finding absent proof of substandard conditions, 20-month incarceration was substantial but not oppressive).

       See Ward, supra at 430 (5).

        Barker, supra at 532 (IV).

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

       (Footnote omitted.) Ingram v. State, 280 Ga. App. 467, 471 (1) (d) (634 SE2d 430) (2006).

       (Citation and punctuation omitted.) Lambert v. State, 302 Ga. App. 573, 577-578 (4) (692 SE2d 15) (2010).

       (Citations, punctuation and footnotes omitted.) Ferguson v. State, 303 Ga. App. 341, 346 (2) (e) (693 SE2d 578) (2010).