text:
    A13A1888.
    CRE VENTURE 2011-1, LLC v. FIRST CITIZENS BANK OF GEORGIA.
    (756 SE2d 225)
   ELLINGTON, Presiding Judge.

CRE Venture 2011-1, LLC (‘Venture”) appeals from an order of the Superior Court of Fulton County granting the interlocutory injunction sought by First Citizens Bank of Georgia (“Citizens”). This suit concerns a loan participation agreement among multiple lenders, a dispute over which lender has the right to administer the loan and to foreclose on the real property securing the loan, and the effect of the loan having passed through Federal Deposit Insurance Corporation (“FDIC”) receivership. Finding no manifest abuse of discretion in the court’s decision to grant the interlocutory injunction, we affirm.

When deciding whether to issue an interlocutory injunction, a trial court should consider whether: (1) there is a substantial threat that the moving party will suffer irreparable injury if the injunction is not granted; (2) the threatened injury to the moving party outweighs the threatened harm that the injunction may do to the party being enjoined; (3) there is a substantial likelihood that the moving party will prevail on the merits of her claims at trial; and (4) granting the interlocutory injunction will not disserve the public interest. The decision whether to grant a request for interlocutory injunctive relief is in the discretion of the trial court according to the circumstances of each case, and we will not disturb the injunction a trial court has fashioned unless there was a manifest abuse of discretion. The purpose for granting interlocutory injunctions is to preserve the status quo, as well as balance the conveniences of the parties, pending a final adjudication of the case. Stated otherwise, an interlocutory injunction is a device to keep the parties in order to prevent one from hurting the other whilst their respective rights are under adjudication.

(Citations and punctuation omitted.) Grossi Consulting v. Sterling Currency Group, 290 Ga. 386, 387-388 (1) (722 SE2d 44) (2012).

The relevant facts are as follows. In March 2010, Citizens entered into a contract entitled “Participation Certificate and Agreement” (the “Agreement”) with Crescent Bank & Trust Company (“CBT”). Pursuant to the Agreement, Citizens purchased an 11 percent undivided interest — a “share” — in an $8.5 million loan (the “Loan”) that CBT originated and made to The Plaza at Suwanee Station, LLC (the “Borrower”). Citizens paid over $900,000 for its share in the Loan. Prior to any default by the Borrower, Citizens was entitled to receive payments under the Agreement from CBT on a “first out” basis until its investment plus interest had been satisfied. Paragraph 12 of the Agreement, entitled “Administration,” provides in relevant part:

A. Loan Servicing. Seller may administer the Loan and any related security and guaranties as though it were the sole owner and holder thereof. Except as provided below, Seller will make all decisions concerning the servicing of the Loan, and any related security and guaranties, acceleration, foreclosure, acquisition of other security or guaranties, deficiency judgments, purchase at foreclosure sales, and administration and disposition of acquired security. Seller will not, without Purchaser’s written consent, reduce principal or interest with respect to the Loan or release or allow for the substitution of any Property, outside the normal course of dealing with Borrower so as to substantially reduce the possibility of repayment of the Loan. Seller will not, without Purchaser’s written consent, renew, extend, or consent to the revision of the provisions of any note or security documents covered or waive any claim against Obligor.
B. Seller’s Duty to Purchaser. Seller will use the same degree of care in servicing and collecting the loan as it would for its own accounts. Seller will not be liable to Purchaser for any action taken or omitted or for any error in judgment, except for bad faith and willful conduct.

The Agreement contemplated multiple participants in the Loan, and two other lenders (who are not parties to this action) purchased shares of the Loan by executing participation certificates and agreements. Covenant Bank & Trust (“Covenant”) purchased a 16 percent interest, and First Commerce Community Bank (“FCCB”) purchased an 18 percent interest. CBT retained a majority interest in the Loan.

In late July 2010, the Georgia Department of Banking & Finance closed CBT, and the FDIC was appointed receiver for CBT’s assets. In August 2011, the FDIC sold CBT’s interest in the Loan to Venture. Prior to the filing of the instant lawsuit, Covenant and FCCB were also declared insolvent and closed by regulators, and the FDIC was appointed receiver for both. The FDIC sold Covenant’s interest in the Loan to Stearns Bank N.A. (“Stearns”). It sold FCCB’s interest in the Loan to Community & Southern Bank (“C&S”). Thus, of those currently holding shares in the Loan, Citizens is the only remaining original participant to the Agreement.

The Loan is secured in part by commercial real property in Gwinnett County, and the Borrower is in default. In January 2012, a few months after Venture acquired its interest in the Loan from the FDIC, Citizens learned that Venture intended to foreclose on the property, and it filed a prior action to enjoin the sale. At that time, the parties attempted to negotiate a settlement, and Citizens dismissed the suit without prejudice. In mid-2012, Venture, C&S, and Stearns agreed that foreclosing on the property was the best way of maximizing their recovery on their investment in the Loan. Only Citizens objected to foreclosure, arguing that, based on its analysis, that the best way to recover on the Loan would be to work with the Borrower to improve the property and to lease the commercial space, thereby facilitating the Borrower’s ability to repay and increasing the value of property.

In October 2012, Venture began advertising a foreclosure sale of the property scheduled for November 2012. Venture asserted that it had the exclusive right, pursuant to the Agreement and as successor-in-interest to CBT, to administer the Loan and to make all decisions concerning foreclosure. On October 25,2012, Citizens filed the instant suit against Venture and sought to enjoin Venture’s efforts to foreclose. In support of its motion for declaratory and interlocutory injunctive relief, Citizens submitted an affidavit stating that, if the foreclosure went forward, Citizens would lose most of its interest in the loan and would be forced to account for the sale “in a manner that [would] do serious and irreparable harm to [Citizens’] finances and business prospects.” According to Citizens, unlike Stearns and C&S, it has not entered into a loss-sharing agreement with the federal government. Moreover, Citizens argues that Venture purchased the Loan at a significant discount and would not suffer the same loss, and it may even profit from a quick sale of the property.

On the day of the hearing on its motion for a temporary restraining order, Citizens amended its complaint to allege that CBT’s insolvency triggered an “ipso facto” provision in the Agreement that authorized the removal of CBT as administrator of the Loan. Paragraph 20 (A) of the Agreement, entitled “Removal of Seller as Administrator,” provides that the Seller may be removed as administrator under the following circumstances:

A. Qualifying Events. Upon the occurrence of any of the following events, Purchaser may notify Seller and assume the administration of the Loan and related guarantees and security agreements as well as demand any documentation or writings reasonably necessary to evidence proof of Purchaser’s security interest and perfection.
(1) Seller fails to comply with Seller’s fiduciary, contractual or legal obligations as provided under this Agreement or by state or federal law.
(2) Seller petitions for or becomes subject to bankruptcy.
(3) Seller commits any act of insolvency.
(4) Seller is declared insolvent, is taken over, or otherwise closed by a governmental regulatory agency which has jurisdiction over Seller.

Paragraph 20 (B) of the Agreement sets out the procedure to be followed in the event the administrator is removed and there are multiple participants in the Loan.

Multiple Participants. In the event of multiple participants in the Loan, the participating lender with the then largest share will have the option to assume administration. If any participant possessing this option does not exercise its right upon the demand of the other participants, the option will then pass to the participant with the next largest share. Unless otherwise agreed, participants possessing equal shares in the Loan will share equally in administration.

Paragraph 20 (C) of the Agreement also provides, in relevant part, that “[u]nless otherwise agreed, all remaining terms of the agreement will survive Seller’s removal as administrator until Purchaser’s investment is satisfied in full or the Loan is repurchased by Seller as provided in this agreement.”

At the hearing on Citizens’ motion for a temporary restraining order, counsel for Citizens argued that, since the original administrator of the Loan (CBT) and the other two original participants (Covenant and FCCB) had all been closed by regulators, Citizens, as the only original participant remaining, was entitled to administer the Loan pursuant to the Agreement. The superior court found Citizens’ reasoning persuasive and entered a temporary restraining order onNovember 2,2012, enjoining Venture from foreclosing on the Property and setting a hearing on Citizens’ Motion for Interlocutory Injunction for December 7, 2012. After hearing additional arguments, the superior court, on April 3, 2013, granted Citizens’ motion for an interlocutory injunction and prohibited Venture from foreclosing on the Property pending the resolution of Citizens’ claims for declaratory judgment. This appeal followed.

In related claims of error, Venture argues that the trial court erred as a matter of law in granting an interlocutory injunction because Citizens cannot prevail on the merits of its claims. Venture argues that the loan administration provisions of the Agreement are unenforceable against it as the successor-in-interest to the FDIC, citing 12 USC § 1821 (e) (13) (A). Alternatively, Venture argues, inter alia, that if those provisions of the Agreement are enforceable, there was no event that triggered Venture’s removal as administrator.

We note that the parties and the court below are proceeding under the assumption that Venture stands in the shoes of CBT with respect to the Agreement and is bound by its terms. In fact, Venture claims that its exclusive right to foreclose on the Loan derives from the Agreement. Consequently, in reviewing the propriety of the interlocutory injunction, the primary questions before us are whether the administrator replacement provisions of the Agreement have been triggered and whether Citizens or Venture is entitled to assume sole responsibility for the administration of the Loan. These are questions of contract interpretation.

If the language of a contract is clear and unambiguous, “the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning.” (Citation and punctuation omitted.) City of Baldwin v. Woodard & Curran, Inc., 293 Ga. 19, 30 (3) (743 SE2d 381) (2013). In this case, the superior court correctly found that the Loan administrator’s authority under the Agreement is

expressly limited by provisions of the Agreement requiring the Administrator to administer the credit with the same care as it would its own account, requiring written consent for decisions that “substantially reduce the possibility of repayment of the loan,” and allowing participants to remove the administrator and assume control of the administration of the Loan in cases of an insolvency or takeover by a government regulator or administrator.

Indeed, in this case, all three of the original participant banks, except for Citizens, were declared insolvent and taken over by the FDIC. Under the plain language of Paragraph 20 (A) of the Agreement, that qualifying event authorized Citizens to notify the Seller — that is, Venture, as CBT’s successor — and to assume the administration of the Loan. And, Paragraph 20 (B) clearly provides that, if all of the other participating lenders have been declared insolvent, then the option to assume administration of the Loan passes to the remaining participant, Citizens. The agreement does not require Citizens to assume administration, but provides that it may do so at its option. And Citizens, by filing the instant lawsuit seeking a declaration of its rights pursuant to the Agreement, has expressed its desire to administer the Loan.

Venture argues, however, that Citizens may not enforce the terms of the Agreement concerning the administration of the Loan and remove it as administrator because to do so would contravene federal law, citing 12 USC § 1821 (e) (13) (A) (2006). That statute provides, in relevant part:

The conservator or receiver may enforce any contract . . . entered into by the depository institution notwithstanding any provision of the contract providing for termination, default, acceleration, or exercise of rights upon, or solely by reason of, insolvency or the appointment of or the exercise of rights or powers by a conservator or receiver.

Venture’s reliance on this provision of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Pub. L. No. 101-73, 103 Stat. 183 (codified as amended in scattered sections of 12 USC), is misplaced. “[The section] applies only when the FDIC seeks to prevent termination of a contract by reason of insolvency, not when the parties, including the FDIC, seek to enforce it.” (Emphasis supplied.) People’s Heritage Savings Bank v. New Heritage Holdings, No. 93-10169-Z, 1994 U.S. Dist. LEXIS 8655 (D. Mass. April 29,1994). In this case, Venture seeks to enforce the terms of the Agreement to obtain the benefit of CBT’s position as lead bank; similarly, Citizens seeks to enforce the terms of the Agreement to assume the role of administrator and to protect its investment in the Loan. Neither party seeks to terminate the Agreement; rather, they both seek to enforce it to their advantage. If Citizens successfully replaces Venture as administrator, Venture remains a party to the Agreement with rights to the Loan.

Venture also argues that the loan administration provisions of the Agreement are unenforceable against it as an assignee of the FDIC, citing Devonshire Park, LLC v. Fed. Deposit Ins. Corp., 2010 U.S. Dist. LEXIS 143602 (M.D. Fla., July 23, 2010). We are not persuaded that the Devonshire case, however, stands for the proposition that Venture — a purchaser of an asset from the FDIC — has the same right to repudiate the terms of an agreement that the FDIC enjoys by virtue of its status as receiver and conservator of a failed bank’s assets. In Devonshire, a loan participant sought to take over administration of a loan while the loan was still in FDIC receivership, not after it had been purchased. The Devonshire case does not address whether a party who has purchased an asset from the FDIC may rely on 12 USC § 1821 (e) (13) (A) to avoid the terms of any contractual liabilities it may have assumed along with the asset that it purchased.

Finally, Venture’s reliance on Iberiabank v. Beneva 41-I, LLC, 701 F3d 916, is also misplaced. In that case, Iberiabank, as the successor-in-interest to a failed bank, argued that it had the authority to enforce a sublease, an asset that it had purchased and assumed from the FDIC, despite the presence of a clause in the sublease that triggered its termination upon the event of the failed bank’s insolvency. Id. at 922 (B). In upholding a grant of summary judgment in Iberiabank’s favor, however, the court expressly stated that it did not agree with the proposition that “Iberiabank was attempting to enforce the contract,” nor did it adopt the reasoning that Iberiabank could do so as the FDIC’s successor-in-interest pursuant to 12 USC § 1821 (e) (13) (A). Id. at 922 (A). Rather, the court held that the FDIC had enforced the terms of the sublease while the sublease was in receivership because the sublease was an asset of the failed bank. As the court explained:

In assuming the sublease and subsequently transferring it to Iberiabank, the FDIC was acting within its power to take charge of [the failed bank’s] assets, to transfer those assets, and to enforce contracts entered into by [the failed bank]. The termination clause in the sublease purporting to allow termination on transfer of [the failed bank’s] assets would have been triggered by the FDIC’s takeover of [the failed bank’s] assets. The FDIC, however, had the power to enforce the lease notwithstanding clauses to the contrary. It must have enforced the sublease when it transferred [the] assets to Iberiabank; otherwise, the option to lease the occupied premises would have been meaningless. Without the leased premises, the value of [the failed bank’s] assets would have decreased. The FDIC was thus carrying out its duty under FIRREA to maximize the value of failed banks when it entered into the Purchase and Assumption Agreement and enforced the sublease.

Id. at 923 (B).

In this case, the asset at issue is the Loan. The parties have not taken the position that the Agreement constitutes an asset. Rather, they agree that it is a contractual obligation concerning their respective shares in the underlying asset, the Loan, and the method by which that asset is to be administered and its proceeds distributed. Moreover, in this case, unlike Iberiabank, enforcing the administration terms of the Agreement will not necessarily diminish the value of the failed bank’s assets; rather, it is possible, as Citizens argues, that its administration of the Loan may increase its value to all parties to the Agreement. As the court below noted in this case, Citizens’ suit is not against the FDIC nor is it an attempt to terminate the agreement or to restrain the FDIC from exercising any of its regulatory powers; rather, Citizens seeks to enforce its right to administer the Loan, a right which is “an essential element of the balance of risk entered into and contemplated by the parties at the time [they executed] the Agreement.”

Given the record in this case, we cannot say that the superior court manifestly abused its discretion in granting the interlocutory injunction. The record supports a finding that Citizens will lose some of the value of its investment if Venture is allowed to foreclose. The record also contains evidence supporting the court’s finding that the harm to Citizens from the foreclosure outweighs any harm that the injunction will cause to Venture, given that Venture bought CBT’s share of the Loan at a discount. And, given the plain language of the Agreement, there is a substantial likelihood that Citizens will prevail on the merits of its claim for declaratory judgment below. Finally, granting the interlocutory injunction will not disserve the public interest. As the superior court found, Citizens’ suit and the interlocutory injunction do not restrain the FDIC from exercising its regulatory powers; rather, the injunction protects a Georgia community bank from financial loss by preserving the status quo pending the resolution of its claims for declaratory relief. Consequently, we affirm the order of the trial court granting the interlocutory injunction.

Decided March 12, 2014.

Morris, Manning & Martin, John A. Lockett III, for appellant.

Joyce, Thrasher, Kaiser & Liss, Matthew M. Liss, Steven K. Leibel, for appellee.

Judgment affirmed.

Phipps, C. J., concurs. Branch, J., concurs in judgment only.

       The record does not contain a complete copy of the instrument by which Venture purchased and assumed the assets of CBT from the FDIC.

       “An ipso facto clause is a clause that provides the consequences if a certain event occurs.” Iberiabank v. Beneva 41-I, LLC, 701 F3d 916, 920, n. 5 (11th Cir. 2012).

       Venture also argues in the alternative that Citizens lost the right to assume the role of administrator through laches. This argument is without merit, however, given that Citizens is seeking declaratory relief. Although an injunction is an equitable remedy, the court’s grant of an interlocutory injunction in this case is “secondary to the primary legal issue of whether the trial court properly construed a contract between the parties.” VATACS Group v. HomeSide Lending, 281 Ga. 50, 50-51 (635 SE2d 758) (2006). Citizens is seeking a declaration of its rights under the Agreement, including its right to administer the Loan. “It is a longstanding and well-established rule that the doctrine of laches is an equitable defense which is not applicable to actions at law, which include declaratory judgment actions.” (Citations omitted.) Id. at 50-51.

       We note that “a party entering into a purchase and assumption agreement with the FDIC assumes the failed bank’s liabilities only to the extent called for in the contract.” Ala. Dept. of Revenue v. Fed. Deposit Ins. Corp., 840 FSupp.2d 1305, 1309 (M.D. Ala. 2012). See also Security State Bank of Hibbing v. Fed. Deposit Ins. Corp., 2013 U.S. Dist. LEXIS 141271 (D.Minn., Sept. 30, 2013) (“Merely because [a bank] assumed the assets underlying the Loan Participation Agreement does not mean that [it] also assumed the breach-of-contract liability [the predecessor bank] incurred before the receivership.”).

       Prior to 2006, the text of this provision was contained in 12 USC § 1821 (e) (12) (A).

       FIRREA “was enacted to strengthen regulation of the nation’s financial system in the wake of the savings and loan crisis of the 1980s,” and “[i]t grants the FDIC broad powers under 12 USC § 1821 to manage the affairs of insolvent banks as receiver or conservator.” Iberiabank v. Beneva 41-I, LLC, 701 F3d at 921.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A13A1922.
    FINCH v. THE STATE.
    (756 SE2d 265)
   DOYLE, Presiding Judge.

Following a jury trial, John Thomas Finch appeals from his conviction of 25 counts of false swearing, contending that the evidence was insufficient to support his conviction. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.

So viewed, the evidence shows that Finch owned or developed certain parcels of real property that he sold to home buyers. As part of the closing documents he executed for each property, Finch signed notarized affidavits stating that the materials used on the lots had been paid for and there were no outstanding debts for the construction. As explained by various trial witnesses from building material suppliers, numerous accounts for materials used in building the properties had not been paid at closing.

Based on the false affidavits, Finch was charged with 25 counts of false swearing. A jury trial ensued, and Finch was found guilty on all counts. Following the denial of his motion for new trial, Finch now appeals.

1. Finch argues that the evidence was insufficient to support a guilty verdict because nobody at the closing law firm swore him in by raising his right hand to take an oath, and because the notary arguably did not personally witness his signature. Based on this, he argues that there was no lawful oath violated by his false statements. But this ignores the plain language of the false swearing statute, OCGA § 16-10-71 (a):

A person to whom a lawful oath or affirmation has been administered or who executes a document knowing that it purports to be an acknowledgment of a lawful oath or affirmation commits the offense of false swearing when, in any matter or thing other than a judicial proceeding, he knowingly and willfully makes a false statement.

Thus, the offense of false swearing is defined to include signing documents that purport to be an acknowledgment of a lawful oath,

regardless of whether an oath had actually been administered by an official. Under this broad[ ] definition, one who executed a document with knowledge that his mere execution would “purport” to be or would evince his “acknowledgment” that the statements contained therein were being made under lawful oath or affirmation could be held accountable for false swearing.

Decided March 12, 2014.

Hube & Tucker, Matthew K. Hube, for appellant.

Finch concedes that the affidavits in question state that he was “duly sworn,” and “on oath deposes and says” the averments in the affidavits. Thus, Finch’s affidavits contained language purporting to be an acknowledgment of an oath or affirmation, and the evidence supported a finding of guilt as to false swearing.

2. Finch also argues that certain evidence of his unpaid accounts violated the best evidence rule under former OCGA § 24-3-14. Butat trial, after he voiced his objection to a single witness’s testimony, the trial court allowed counsel to confer and resolve any questions about the evidence being offered by the witness. After the conference, the witness continued with his testimony, including the formerly challenged testimony, without objection from Finch. Therefore, this issue has not been preserved for appeal.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

Richard A. Mallard, District Attorney, J. Barclay Black, Assistant District Attorney, for appellee.

       OCGA § 16-10-71 (a).

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

       (Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

       There was some evidence that the notary saw Finch come and go from the room where the closing was held, hut she was directly outside the room at the time Finch signed the closing documents. The notary then notarized the documents on the direction of the closing attorney, who had checked his identification and witnessed the signature.

        Holland v. State, 172 Ga. App. 444 (1) (323 SE2d 632) (1984). See also State v. Kindberg, 211 Ga. App. 117, 118 (438 SE2d 116) (1993) (“A person commits the offense of false swearing generally when he, having either taken a lawful oath or affirmation or executed a document knowing that it purports to be an acknowledgment of a lawful oath or affirmation, knowingly and wilfully makes a false statement.”) (emphasis supplied).

       Finch’s reliance on Spillers v. State, 299 Ga. App. 854 (683 SE2d 903) (2009) does not require a different result in this case. That case, in dicta, restated in a paraphrase the quoted statutory elements of the crime as including “falsely swearing under oath” and an “oath” legally administered. Id. at 856. But the issue addressed by the Court in Spillers was one of intent based on the substance of the defendant’s sworn statement, not the lack of a legal oath. Therefore, that case is not controlling here. See id. at 857.

       Because this case was tried before January 1, 2013, our new Evidence Code does not apply. See Ga. L. 2011, pp. 99, 214, § 101.

       See Jeffers v. State, 290 Ga. 311, 314 (4) (a) (721 SE2d 86) (2012) (“Standard practice in Georgia has long required a party to make and obtain a ruling on an objection to evidence in the trial court, before or as the evidence is admitted, in order to preserve the objection for appeal, and standard practice also allows parties to raise on appeal only the same objections that were properly preserved below.”); Smith v. Stacey, 281 Ga. 601, 602 (1) (642 SE2d 28) (2007) (“It is the duty of counsel to obtain a ruling on his motions or objections.”) (punctuation omitted); Tuff v. State, 278 Ga. 91, 93, n. 11 (597 SE2d 328) (2004). See also Simpson v. Colonial Pipeline Co., 269 Ga. 520, 522 (3) (499 SE2d 634) (1998) (qualified witness can testify as to matters of personal knowledge and from business records). The testimony Finch now challenges was from the president of a flooring company who personally maintained his business accounts and stated that Finch still had outstanding balances.


author: RAY, Judge.

text:
    A13A1933.
    CARTER v. THE STATE. ALFORD v. THE STATE.
    A13A2328.
    (756 SE2d 232)
   RAY, Judge.

After a jury trial in which they were tried as co-defendants, Antonio Carter and Demario Alford were each convicted of one count of armed robbery (OCGA § 16-8-41). In Case No. A13A2328, Alford appeals from the denial of his motion for new trial, arguing that the evidence was insufficient to support his conviction, that the trial court erred in denying his motion for a mistrial, and that the trial court erred in allowing testimony identifying him in a surveillance video into evidence. In Case No. Á13A1933, Carter appeals from the denial of his amended motion for new trial, arguing that the trial court erred in refusing to strike several jurors and in allowing testimony identifying him in a surveillance video into evidence. Carter also argues that he received ineffective assistance of counsel. For the reasons that follow, we affirm Alford’s conviction, reverse Carter’s conviction, and remand for a new trial for Carter.

Case No. A13A2328

1. Alford argues that the evidence presented at trial was insufficient to support his conviction. We disagree.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia[, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979)]. This same standard applies to our review of the trial court’s denial of [the defendants’] motion[s] for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Footnotes omitted.) Stephens v. State, 247 Ga. App. 719, 719 (545 SE2d 325) (2001).

So viewed, the record shows that at 6:30 p.m., on October 17, 2011, Thrift Town, a grocery store in Newnan, was robbed at gunpoint by two African-American males. A third male, Brandon Phillips, was also indicted for the crime, and he testified that his role in the robbery was to go into the store and determine who was inside. The men stole approximately eight to nine thousand dollars from the store’s cash registers.

Approximately an hour before the robbery, the two co-defendants came into the store, as can be seen and identified on the store’s video surveillance cameras. Significantly, the first video shows the clothing worn by the co-defendants. Alford wore a checkered hat, light blue jeans, and a red belt, and Carter wore a red hat with a black brim. A review of the store’s surveillance video of the robbery an hour later shows that although Alford had changed into a yellow jacket and concealed his face during the robbery, he was still wearing light blue jeans, a checkered hat, and the distinctive red belt. Although Carter concealed his face and put on a black j acket during the robbery, he was still seen wearing a red hat with a black brim.

Although neither the store owner nor the employee who was at the store at the time of the robbery could positively identify Alford or Carter, at trial the employee positively identified Phillips as one of the men hanging around the robbers before and after the robbery. Phillips testified that Alford and Carter were the two other people involved in the robbery. Phillips’ description of the clothing worn by Alford and Carter before and during the robbery was consistent with that shown in the surveillance tape, including the fact that Alford was seen wearing blue jeans and a red belt and that Carter was wearing a red hat with a black brim.

Bridgette Smith, who was living with Phillips’ brother, testified that Alford and Carter ran through the back of her house shortly after the robbery. Cynthia Royal testified that she saw Alford and Carter come out of Smith’s house and throw their clothes into the trash. Detective Greg Vansant testified that the clothing later recovered by law enforcement near Smith’s house was the same clothing depicted on the videos, including the yellow jacket and red belt worn by Alford and the red hat worn by Carter. Additionally, Alford’s cell phone records place him in the area of the robbery at the time the robbery occurred, even though Alford claimed to have been in Atlanta at that time.

Viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Alford guilty beyond a reasonable doubt of armed robbery. OCGA § 16-8-41. “It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (Citation and punctuation omitted.) Vega v. State, 285 Ga. 32, 33 (1) (673 SE2d 223) (2009).

2. During cross-examination by Alford’s trial counsel, Norrissa Phillips, who is Phillips’ sister, testified that she heard Alford state that he and Carter had robbed the store alone and that Phillips had not been involved with the robbery. Carter’s trial counsel then moved for mistrial, arguing that the statement constituted a Bruton violation because it implicated his client. Alford’s counsel then joined the motion for mistrial, arguing that because Alford had to craft his questions so as not to elicit testimony that would violate Bruton, he was denied the right to a thorough and sifting cross-examination of the witness. Alford contends that the trial court’s denial of his motion for mistrial was in error.

The trial court denied the motions for mistrial, but it allowed counsel for both defendants and the State to craft a curative instruction and a stipulation as to what Norrissa Phillips’ further testimony would be. The trial court then instructed the jury according to the agreed-upon instruction and stipulation, which included a statement that Norrissa Phillips heard Alford state that Phillips had left the store prior to the robbery. Alford’s trial counsel agreed to the stipulation and did not object to the curative instruction either before or after it was given.

Relying upon Bowe v. State, 288 Ga. App. 376 (654 SE2d 196) (2007), Alford urges that the trial court erred in denying his mistrial because a “thorough[ ] and sifting cross-examination of Norrissa Phillips was limited because of the Bruton issue and [Alford] was force [d] to settle for a stipulation of facts instead of a complete cross-examination.” In Bowe, this Court held that the trial court erred in denying a defendant’s motion to sever his trial from that of a co-defendant when Bruton concerns prevented him from introducing complete transcripts of 911 phone calls and a subsequent custodial statement he made to the police regarding his only antagonistic defense, i.e., that he was present at the robberies solely because of coercion by his co-defendant. Id. at 383-384 (3). Unlike in Bowe, however, Alford did not move to sever his trial from Carter’s, and he was not prevented from introducing evidence supporting an antagonistic defense at trial. Rather, at trial, he argued that because of Bruton concerns, he was prevented from providing the full context of Norrissa Phillips’ statement — that is, that Alford did not believe Phillips was involved in the crime because he had left the store prior to the robbery.

However, even if it was error to exclude Norrissa Phillips’ testimony in its entirety, such error does not require a reversal of Alford’s convictions because evidence similar to that Alford sought to introduce through his cross-examination of Norrissa Phillips was admitted at trial through the stipulation and through the testimony of another witness. Mitchell v. State, 293 Ga. 1, 2 (2) (742 SE2d 454) (2013). The stipulation stated that the witness told police that Alford claimed Phillips had nothing to do with the robbery and left the store prior to the robbery. Phillips himself testified that he left the store prior to the robbery taking place. Further, a store employee testified that he recognized Phillips as one of the men in the store during the evening of the robbery, but only stated that he saw him standing outside the door of the store with the other two co-defendants immediately after the robbery. See id. (reversal not required when trial court required defendant’s statements to police to be redacted to comply with Bruton when such redacted portions of the statement sought to be admitted were cumulative of evidence presented through the testimony of another witness). Because the evidence Alford sought to be admitted through Norrissa Phillips’ cross-examination would have been cumulative of other testimony admitted at trial (including the stipulation as to what the remainder of her testimony would have been), we find it highly probable that the exclusion of such testimony did not affect the outcome of the proceedings. Id.

3. Alford contends that the trial court erred in allowing Detective Vansant, the State’s witness, to identify him on the store’s surveillance videotape of the robbery. We agree that this was error by the trial court, but find it harmless in the context of all the other evidence introduced at trial.

During the course of the trial, after viewing the surveillance videos and after Detective Vansant gave his initial testimony, a juror sent a note to the trial court inquiring if the trial court would identify the individuals shown in the surveillance videos. The trial court then instructed the jury that “a witness is not permitted to identify a person in a photograph or a video other [than] himself or herself. Rather, identity is an ultimate question of fact to be determined by the jury.” After this instruction, Detective Vansant was then allowed to testify for a second time regarding the surveillance videos. This testimony included, over Alford’s objection, that one of the perpetrators was Alford.

It is well established in our case law that it is improper to allow a witness to “testify as to the identity of a person in a video or photograph when such opinion evidence tends only to establish a fact which average jurors could decide thinking for themselves and drawing their own conclusions.” (Citation and punctuation omitted.) Dawson v. State, 283 Ga. 315, 320 (4) (658 SE2d 755) (2008). Indeed, such identification testimony

should be admitted for the jury’s consideration only if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the [video or] photograph than is the jury, as when the witness is familiar with the defendant’s appearance around the time a surveillance [video or] photograph was taken and the defendant’s appearance has changed prior to trial, or when the witness knows about some other distinctive but presently inaccessible characteristic of the defendant’s appearance.

(Punctuation and footnote omitted; emphasis in original.) Grimes v. State, 291 Ga. 585, 590-591 (2) (662 SE2d 346) (2008). See also Dawson, supra. Thus, a witness’s familiarity with the defendant, in and of itself, “does not make his or her identification testimony based on a video or photograph admissible.” (Footnote omitted.) Grimes, supra at 591 (2).

Here, there was no evidence that Detective Vansant was familiar with Alford prior to his viewing of the surveillance video or that Alford’s appearance had changed prior to trial. Although both Alford and Carter are seen with covered faces in the surveillance video of the robbery, the State presented no evidence as to why Detective Vansant would be more likely to identify the defendant than the jury. Compare Bradford v. State, 274 Ga. App. 659, 661 (3) (618 SE2d 709) (2005) (affirming admission of lay testimony identifying defendant as the person on videotape of store robbery as the basis of his distinctive body movements). Therefore, the trial court erred in permitting Detective Vansant to identify Alford in the videotape. See Grimes, supra at 591-592 (2) (trial court abused its discretion in allowing a lay witness to identify defendant on surveillance photograph when, despite the fact that the perpetrator in the photograph had covered his face, the State had presented no evidence that defendant’s appearance had changed before trial and the defendant’s distinctive feature — a heart tattoo—was not inaccessible to the jury). Although Detective Vansant pointed out the defendant’s distinctive clothing items during the surveillance videos, such as Alford’s red belt, this information regarding the defendants’ clothing was introduced prior to the detective’s testimony. Detective Vansant was not a witness to the crime and was not shown to be more likely to correctly identify the persons in the video than the jurors; thus, his opinion testimony was excludable upon objection. See Mitchell v. State, 283 Ga. App. 456, 458-459 (641 SE2d 674) (2007) (trial court abused its discretion in allowing a police officer, based upon his previous acquaintance with the defendant, to identify the defendant as the person shown in the surveillance photographs).

As previously indicated, however, this error was harmless. Prior to Detective Vansant’s testimony, co-defendant Phillips testified, identifying Carter and Alford as his accomplices in the robbery, describing their respective roles during the robbery, and detailing the clothing worn by each before the robbery, as well as the changes made to their clothing when the robbery took place. Further, both Bridgette Smith and Cynthia Royal testified that they saw Carter and Alford near their homes shortly after the robbery and that the men discarded their clothes nearby. The clothing recovered by police matched the items worn by Alford during the surveillance video of the robbery. Additionally, Alford’s cell phone records place him in the area of the robbery at the time the robbery occurred. Accordingly, the trial court’s error in allowing Detective Vansant to testify as to Alford’s identity on the videotape was rendered harmless in light of the overwhelming evidence of his guilt. Rogers v. State, 294 Ga. App. 195, 198-199 (670 SE2d 106) (2008) (the error in allowing a law enforcement official to identify the defendant as the person portrayed on surveillance video was harmless when there was additional overwhelming evidence of his guilt). Compare Grimes, supra (trial counsel rendered ineffective assistance of counsel for failing to object to lay witness’s opinion testimony that the individual in surveillance videos was defendant, and such error was not harmless when the erroneous witness testimony was the “only unequivocal testimony that [the defendant] was the person depicted in the surveillance photographs”).

Case No. A13A1933

4. In four enumerations of error, Carter argues that the trial court erred in refusing to strike four prospective jurors for cause. Finding that the trial court erred, we reverse Carter’s conviction. See Maxwell v. State, 282 Ga. 22, 26 (2) (d), n. 12 (644 SE2d 822) (2007) (“if a defendant is denied a full panel of qualified jurors, his conviction must be reversed”) (citation omitted).

“The decision [whether] to strike a potential juror for cause lies within the sound discretion of the trial court and will not be set aside absent some manifest abuse of that discretion.” (Citation omitted.) Abdullah v. State, 284 Ga. 399, 400 (2) (667 SE2d 584) (2008).

Only upon a finding of “manifest abuse” of discretion may a trial judge’s decision concerning juror qualification be reversed. But even given this latitude, the potential impact of juror bias must not be underestimated. Running through the entire fabric of our Georgia decisions is a thread which plainly indicates the broad general principle intended to be applied in every case is that each juror shall be so free from either prejudice or bias as to guarantee the inviolability of an impartial trial. If error is to be committed, let it be in favor of the absolute impartiality and purity of jurors.

(Citations and punctuation omitted.) Rouse v. State, 296 Ga. App. 330, 331-332 (674 SE2d 389) (2009).

(a) Carter contends that the trial court erred in failing to strike Juror No. 14 for cause. As to this issue, the transcript shows the following exchange between defense counsel and Juror No. 14.

DEFENSE COUNSEL: Is there anybody here that would hold it against the defendant... if he chose not to testify? ... Anybody in here who would prefer to hear [the defendant] testify? . . .
JUROR: Yes, sir. I think I’d like to hear from him. . . .
DEFENSE COUNSEL: [Njobody said they would hold it against... a defendant in a criminal case. And, [Juror No. 14], you prefer to hear from a defendant who claims they’re not guilty to take the stand?
JUROR: Yes.
DEFENSE COUNSEL: Do you think it would affect your decision on the evidence if you did not hear from him — if the defendant did not take the stand.
JUROR: Possibly. I’d have to hear both sides.
DEFENSE COUNSEL: You could possibly hold it against a defendant who chose not to testify?
JUROR: I’d have to see the whole circumstances.

The defendant moved to strike Juror No. 14 for cause based on these responses, arguing that his statements indicating that he could “hold it against the defendant” if he did not testify meant that he would not be an impartial juror. The State argued that the juror was ignorant of the law until instructed by the Court regarding a defendant’s right not to testify, and that he never affirmatively stated that he would not follow the law as instructed by the trial court. However, Juror No. 14 never indicated that he could set aside his doubts as to a defendant’s innocence if that defendant elected not to testify.

Decided March 12, 2014.

Jennifer A. Trieshmann, for appellant (case no. A13A1933).

James E. Bischoff, for appellant (case no. A13A2328).

Peter J. Skandalakis, District Attorney, Raymond C. Mayer, Kierston M. Phillips, Assistant District Attorneys, for appellee.

Here, we are forced to conclude that the trial court improperly failed to strike Juror No. 14 for cause. The trial court never questioned the juror, and the juror never gave an affirmative response that he would be able to follow the court’s instructions that the State had to prove Carter’s guilt beyond a reasonable doubt and that Carter had no burden to put forth proof of his innocence. See Ham v. State, 303 Ga. App. 232, 239-240 (2) (a) (692 SE2d 828) (2010); Rouse, supra at 332; McGuire v. State, 287 Ga. App. 764, 765 (1) (653 SE2d 101) (2007). Therefore, Carter is entitled to a new trial on this basis. See Rouse, supra at 332.

(b) Based on our holding in Division 4 (a), it is unnecessary for us to consider Carter’s remaining enumerations of error.

Judgment affirmed in Case No. A13A2328. Judgment reversed and case remanded in Case No. A13A1933.

Barnes, R J., and Miller, J., concur.

       Brandon Phillips was also indicted for the same incident and pled guilty to robbery.

       Under Bruton v. United States,

      the admission of a co-defendant’s confession that implicated another defendant at a joint trial constitutes prejudicial error even though the trial court gave clear, concise, and understandable instructions that the confession could only be used against the co-defendant and must be disregarded with respect to the defendant.

        Davis v. State, 261 Ga. 382, 383 (3) (a) (405 SE2d 648) (1991) (citing Bruton v. United States, 391 U. S. 123 (88 SCt 1620, 20 LE2d 476) (1968)).

       We note that, in the companion appeal, Alford did not raise this issue as an enumeration of error in his appellate brief or in his motion for new trial, and therefore, it is waived.


author: BARNES, Presiding Judge.

text:
    A13A1991.
    JONES v. THE STATE.
    (756 SE2d 267)
   BARNES, Presiding Judge.

Following his convictions for aggravated assault, aggravated battery and possession of a firearm during the commission of a felony, Marquel C. Jones appeals from the denial of his motion for new trial, contending that the evidence was insufficient to sustain his convictions. Following our review, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004).

We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

Falay v. State, 320 Ga. App. 781 (740 SE2d 738) (2013).

So viewed, the evidence demonstrates that while the victim, Jones’ former girlfriend, was visiting with two female cousins, the three women got into an argument about pending charges against the brother of one of the cousins. The brother had been arrested because the victim had alleged that he pulled a gun on her. The victim testified that her cousins were mad because she had the brother arrested. The discussion soon turned to rumors that Jones had dated the victim’s two cousins, and the women then called him. Jones arrived at the house shortly thereafter, and he and the victim went into a bedroom, where they argued and Jones accused the victim of “starting stuff” and “started shaking” her. The victim asked Jones to stop, he responded that he was not going to shoot or hit her, and when the victim pushed Jones, he pushed her back, causing the victim to fall on the bed. When Jones left the bedroom, the victim attempted to call someone to pick her up from the home. Jones returned to the room soon afterward and stood behind her holding a gun to her side. She heard a gunshot and turned to face Jones, who told her that he had been “meaning] to do this” and ran out of the room. The victim did not see the gun when Jones held it to her side, but saw it when she turned to face him. One of the cousins told responding police that she saw Jones pull out a small handgun, and the other cousin said she saw him leave the house after hearing the gunshot. The bullet damaged the victim’s spinal cord causing permanent paralysis.

Jones testified at the trial and maintained that the shooting was accidental and had occurred when he and the victim were fighting and had “tussle [d] with the gun.” He further testified that the gun was on the bed when he arrived in the room, and that he had taken it with him when he left and “threw it out.” Jones testified that he did not know that the victim was shot when he left because there was no blood and that she was “still talking and standing up.”

Decided March 12, 2014.

Jason A. Nix, for appellant.

Tom Durden, District Attorney, Sandra Dutton, Assistant District Attorney, for appellee.

Jones argues that the evidence was insufficient to support the verdict. Jones essentially maintains that the evidence was insufficient to support his convictions because, among other things, the victim lacked credibility. He maintains that her statement to the police was “slow to form,” her testimony was inconsistent, and that she had a strong motivation to lie rather than risk incriminating herself. It is well established, however, that “[r]esolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.” (Punctuation and footnote omitted.) Smith v. State, 302 Ga. App. 222, 222 (1) (690 SE2d 867) (2010). See Knight v. State, 311 Ga. App. 367, 368 (1) (715 SE2d 771) (2011) (“[I]t is the function of the jury... to judge the credibility of witnesses, resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. In so doing, a jury is authorized to believe or disbelieve all or any part of the testimony of witnesses.”) (citations and punctuation omitted). Moreover, the testimony of a single witness is “generally sufficient to establish a fact.” Former OCGA § 24-4-8, repealed by Ga. L. 2011, p. 99, § 2 (effective Jan. 1, 2013). In this case, the evidence was sufficient for a rational trier of fact to find Jones guilty of the crimes charged beyond a reasonable doubt. See Jackson, 443 U. S. at 319 (III) (B).

Judgment affirmed.

Miller and Ray, JJ., concur.

       At trial, the cousin testified that she did not see Jones with a gun and denied making the statement to police.

       “A person commits the offense of aggravated assault when he or she assaults:.. . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). “A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.” OCGA § 16-5-24 (a). OCGA § 16-11-106 (b) (1) provides: “Any person who shall have on or within arm’s reach of his or her person a firearm ... during the commission of. . . [a]ny crime against or involving the person of another..., and which crime is a felony, commits a felony____”

       OCGA § 24-14-8, which became effective January 1,2013, contains language identical to that quoted above from former OCGA § 24-4-8, but the provisions of Georgia’s new Evidence Code “apply to any motion made or hearing or trial commenced on or after” January 1,2013. Ga. L. 2011, p. 99, § 101. Because Jones’ trial occurred before this date, the prior Evidence Code applies in this case.


author: Ellington, Presiding Judge.

text:
    A13A2312.
    LESLIE v. DOE.
    (756 SE2d 238)
   Ellington, Presiding Judge.

The Superior Court of Fulton County granted summary judgment in favor of John Doe, the “phantom driver” defendant, in this personal injury suit arising from a one-car accident. The court found that Tyrone Leslie, the plaintiff driver, had failed to present evidence corroborating his claim that Doe’s actions forced him from the roadway, causing the accident. Absent such corroboration, a prerequisite for Leslie to recover against his uninsured motorist carrier, the court entered judgment in Doe’s favor. Leslie contends that the court erred because the affidavit and deposition testimony of an eyewitness provided the requisite corroboration. Because the court erred in disregarding the eyewitness’s affidavit under the circumstances of this case, and because the eyewitness’s affidavit and deposition testimony provide sufficient corroboration, we reverse the grant of summary judgment.

Absent some evidence of physical contact between the insured’s vehicle and the unknown vehicle, an eyewitness must corroborate the insured’s description of how the accident occurred. OCGA § 33-7-11 (b) (2). See Yates v. Doe, 190 Ga. App. 367 (378 SE2d 739) (1989) (Without evidence of contact between the vehicles or eyewitness testimony corroborating the appellant’s claim of how the phantom driver caused the accident, as required by OCGA § 33-7-11 (b) (2), the trial court properly granted summary judgment to the uninsured motorist carrier.). By requiring a corroborating eyewitness to the actual involvement of a John Doe driver and his phantom automobile under such circumstances,

[i]t was not the intent of the legislature to create a rule which would arbitrarily preclude coverage [.] . . . What the legislature intended to be established with reasonable certainty, so as to preclude fraudulent claims, is the existence of a phantom automobile which caused the damage or injury. The legislature provided two methods by which this can be accomplished: (a) by proof of actual physical contact, or (b) by the claimant’s description of the occurrence corroborated by eyewitness testimony. The eyewitness does not have to be a disinterested third party.

(Citations omitted; emphasis in original.) Painter v. Continental Ins. Co., 233 Ga. App. 436, 438-439 (2) (504 SE2d 285) (1998).

In his complaint, Leslie averred that he lost control of his vehicle when he swerved to avoid a car that had pulled out in front of him as it entered the roadway from a shopping center parking lot. To corroborate his claim, Leslie submitted the recorded statement and the sworn affidavit and deposition testimony of an eyewitness, Reginald Fretty. On June 1, 2011, Fretty gave Leslie an affidavit, stating:

On January 29, 2011, I was at a convenience store on [Highway] 138 in Fulton County, Georgia [,] when I observed a fairly new, dark colored car, possibly American made, come from out of the shopping center lot across the street and cut off the driver of the green Mitsubishi [,] later identified as Tyrone Leslie. The car caused Mr. Leslie to [lose] control of his vehicle in an attempt to avoid a collision. The dark colored car did not stop as Mr. Leslie lost control, flipped several times and crashed.

In his August 5,2011 recorded statement and in his February 14, 2012 deposition, Fretty was less certain of his observations. In his recorded statement, he told an insurance adjuster that he had seen a car pass in front of Leslie’s car and cause the accident. When asked if that was his assumption or an observation, Fretty insisted: “No, . . . [the other car] caused the accident.” Later, however, Fretty admitted that he was not sure exactly how the other car had caused the accident, stating “I’m not for sure if the car pulled out in front of [Leslie’s car].” When asked specifically if he saw what the other car did immediately prior to the accident, he stated: “No.” Similarly, in his deposition, Fretty stated that he saw “a car coming out [from a store] going that way (indicating) on 138. . .. And that’s when I saw, you know, the car going and the vehicle flipping.” Yet, when pressed on the details, Fretty admitted: “I didn’t watch the whole thing[.]”

In both his deposition testimony and his recorded statement, Fretty is most consistent concerning these details: While he was pumping gas, he heard “brakes squealing,” a “banging” sound, and a “loud tumbling noise.” When the sounds prompted him to look up, he saw Leslie’s car flipping over as it left the roadway. By that time, the other car — the only other car on the road — was far enough down the road that Fretty could not tell what color it was. He speculated that the other car may have run a red light, may have been speeding, or may have pulled out in front of Leslie, but that he was not certain exactly how the other car caused the accident. Although Fretty’s testimony varied as to how much he saw or recalled of the specific cause of the accident, he did not specifically repudiate his affidavit or his assertion that he saw another car and that the driver of that car caused the accident.

During his deposition, Fretty also acknowledged that Leslie was dating his wife’s sister, Anna Godbold; and that he was friends with Anna’s ex-husband, Johnnie Godbold. The car Leslie wrecked was Anna’s, but it was insured by Johnnie.

The court did not conduct a hearing on Doe’s motion for summary judgment; rather, it ruled based upon the evidence that the parties had filed with the court. In its summary judgment order, the court found that Fretty’s affidavit contained corroborating statements “which would be sufficient to withstand the [m]otion[.]” The court concluded, however, that because the affidavit was a photocopy and not an original, it was “not sufficient in a summary judgment context to constitute evidence.” After discounting the evidentiary value of the affidavit, the court entered judgment in Doe’s favor.

1. For the reasons that follow, the court erred in disregarding the corroborating statements made in Fretty’s affidavit. The affidavit was made a part of the record. Doe did not move to strike Fretty’s affidavit or object to it on best evidence grounds, thereby waiving a best evidence objection; rather he urged the court to disregard it because it contradicted portions of Fretty’s deposition testimony, an objection the court overruled. Given that no best evidence objection was made, the court erred in concluding that the affidavit had no evidentiary value for the following reasons.

A photocopy of a writing is considered secondary evidence. All Risk Ins. Agency v. Southern Bell Tel. & Tel. Co., 182 Ga. App. 190, 193-194 (5) (355 SE2d 465) (1987) (“Photostatic copies are ordinarily secondary evidence, which may not be admitted over objection without properly accounting for the original.”) (emphasis supplied). Under the best evidence rule as it existed at the time of the motion, primary evidence “is such as in itself does not indicate the existence of other andbetter proof,” and “[s]econdary evidence is such as from necessity in some cases is substituted for stronger and better proof.” Former OCGA § 24-5-1. Former OCGA § 24-5-2 provided that “to admit secondary evidence, it shall appear that the primary evidence for some sufficient cause is not accessible to the diligence of the party. This showing shall be made to the court, who shall hear the party himself on the question of diligence and the inaccessibility of the primary evidence.” Thus, although original evidence is preferred over secondary evidence, secondary evidence is not without value. Because secondary evidence has value, the court may admit it over objection if the party offering the evidence satisfies the statutory criteria. Baptiste v. State, 288 Ga. 653, 655-657 (2) (706 SE2d 442) (2011) (finding that, under the best evidence rule, an officer’s testimony regarding the contents of an affidavit was admissible when it was established that the original search warrants and affidavits had been lost). However, if the opposing party makes no best evidence objection to the admission of the secondary evidence, the objection is waived and the secondary evidence is before the factfinder. See Wright v. Apartment Investment and Mgmt. Co., 315 Ga. App. 587, 598 (4) (b) (726 SE2d 779) (2012). Because Fretty’s affidavit had been made part of the record, because it had evidentiary value on the issue of corroboration in opposition to Doe’s motion for summary judgment, and because any objection to its admission on best evidence grounds had been waived, the court erred in disregarding it.

Decided March 12, 2014.

David M. Van Sant, for appellant.

Fain, Major & Brennan, Sean L. Gill, Jessica E. Sanford, for appellee.

2. Doe argues that, even considering Fretty’s affidavit as part of the record evidence, Fretty’s contradictory account of the accident fails to provide the requisite corroboration. It is patent from the record that Fretty has given contradictory accounts of the extent to which he observed the accident. One may also infer from the record that Fretty is not a disinterested witness and that his credibility is in doubt. However, for purposes of OCGA § 33-7-11 (b) (2), neither Fretty’s credibility nor his contradictions are relevant to whether his testimony provides sufficient corroboration. What matters is that Fretty gave testimony stating that he saw another car and that the driver of that car had caused the accident in a way that supports Leslie’s account of how the accident occurred. Whether Fretty is to be believed remains for the jury to decide. Consequently, the superior court erred in granting summary judgment to Doe on the basis that there was no corroboration under OCGA § 33-7-11 (b) (2).

Judgment reversed.

Phipps, C. J., concurs. Branch, J., concurs in judgment only.

       See footnote 2, infra.

       This Code section provides, in relevant part:
      A motor vehicle shall be deemed to be uninsured if the owner or operator of the motor vehicle is unknown. ... [I]n order for the insured to recover under the endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact shall have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.

      (Emphasis supplied.) OCGA § 33-7-11 (b) (2).

       Although the social connections and the facts surrounding how Fretty came forward as a witness draw into question his credibility, the eyewitness’s credibility is not relevant to the threshold corroboration inquiry. See Universal Security Ins. Co. v. Lowery, 257 Ga. 363, 363-364 (359 SE2d 898) (1987) (“While the evidence here may be subject to credibility concerns, it is nonetheless sufficient.... If the General Assembly had intended to require corroboration by a disinterested third party, it could have so specified.”).

       If the opposing party does not object to the admission of secondary evidence on best evidence grounds, the obj ection is waived. See Wright v. Apartment Investment and Mgmt. Co., 315 Ga. App. 587, 598 (4) (b) (726 SE2d 779) (2012) (“Appellants waived [the best evidence objection] by failing to interpose a timely contemporaneous objection when the challenged testimony was presented in court.”) (citation omitted).

       Doe urged the court to apply the rule set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986), to statements of nonparty witnesses. The court correctly declined to do so. When a party has given contradictory testimony on the dispositive issue in the ease, and when that party relies exclusively on that testimony in opposition to summary judgment, a court must “construe the contradictory testimony against him.” Id. This rule has not been extended to apply to nonparty witnesses. See Patterson v. Bates, 295 Ga. App. 141, 143-144 (671 SE2d 195) (2008) (physical precedent only).

       Georgia’s new Evidence Code does not apply to this case, as Leslie argues, because the Code became effective on January 1, 2013, and applies “to any motion made or hearing or trial commenced on or after such date.” Ga. L. 2011, p. 99, §§ 2,101. The instant motion was made on November 26, 2012, and no hearing was requested or held. Because the motion was made prior to January 1, 2013, the court correctly applied the then-existing rules of evidence. As of January 1, 2013, the best evidence rule in former OCGA § 24-5-1 et seq. has been replaced by OCGA§ 24-10-1001 etseq. Specifically, OCGA § 24-5-26hasbeenreplacedbyOCGA § 24-10-1003, which provides: “A duplicate shall be admissible to the same extent as an original unless: (1) A genuine question is raised as to the authenticity of the original; or (2) A circumstance exists where it would be unfair to admit the duplicate in lieu of the original.”

       See footnote 3, supra.

       Even if Fretty’s testimony was self-contradictory, “it remains viable evidence, evidence which corroborates [Leslie’s] contention as to the existence of a phantom vehicle which caused the incident.” (Citation omitted.) Painter v. Continental Ins. Co., 233 Ga. App. at 438 (1).


author: Boggs, Judge.

text:
    A13A2423.
    LEWIS v. THE STATE.
    (756 SE2d 242)
   Boggs, Judge.

A jury found Moses Lewis guilty of aggravated assault, but acquitted him on a count of false imprisonment. Following the denial of his amended motion for new trial, Lewis appeals, citing several claims of error. Because the trial court erred in allowing the testimony of an officer recalled by the State, we reverse.

The evidence showed that the victim and her boyfriend Lewis had lived together for several years when their relationship became strained. She testified that when Lewis began receiving a disability check, he would disappear for a day or so, return home, and the two of them would argue. She admitted to “grabfbing]” Lewis during these arguments, but explained she never hurt him.

On July 4, 2009, the victim was sitting on the bed when Lewis entered the room and said to her, “B**ch, you’re going back to your old man? . . . I’m going to kill you,” then “jumped on [her]” so that she could not move, and stabbed her in the abdomen with a knife. Lewis immediately “said he was sorry,” but attempted to stab the victim again. She explained that she and Lewis were “tussling,” and she told Lewis “please don’t do it again.” The victim told him, “don’t let me die in the house like this, don’t let my kids come home and see me die like this.” Lewis again told her “he was sorry,” but continued to attempt to stab her. When the victim told Lewis, “please, let’s talk about this. I ain’t going to call the police, just leave,” Lewis let her up, and she instructed him “to go to the house in the back.” Lewis walked out, and the victim sought help from her uncle who lived nearby.

The officer who arrived on the scene testified that he observed the victim on the ground with a small wound, slightly bleeding, on the left side of her hip. He explained that the victim “was basically in a state of shock,” and that she told him that Lewis called her a b**ch, “pushed her down on the bed and then he stabbed her.” While Lewis was taken into custody later the same day by other officers, the officer who responded to the victim did not see Lewis after the incident or after he was taken into custody.

Lewis testified in his own defense and claimed that the victim was the aggressor. He stated that he was sitting on the side of the bed opening a letter with a “file . . . with a point on the end” when the victim came into the room to talk to him and “got upset because [Lewis] wasn’t paying her no attention.” Lewis claimed the victim hit him on the side of his face and straddled him after he fell back onto the bed. He explained that she hit him “so hard, she knocked the earring out of this side of my ear.”

Lewis explained further, “it was happening all over again. I mean, that’s not the first time it happened.” He testified: “I still had the opener in my hand, and I was twisting. But I couldn’t move ... I kept asking her to let me up . .. and get off me. .. . But she wouldn’t. So I stuck her with the little — the thing I had in my hand, I stuck her with it. And I did that to get her off me.” Lewis stated that he knew the victim “was going to keep hitting [him],” and that if she had sat on him any longer, “something bad was going to happen to [his] body itself.” He claimed that he could not “move her away,” because “she’s too much weight.” The victim testified that she was 5'6" tall and weighed 200 pounds. Lewis stated that he weighed 140 pounds at the time of the incident. He explained that he had had surgery on his shoulder and back in the past year and could not “physically tussle with anybody.”

1. Lewis contends that the trial court erred in allowing the officer to testify “about his opinion on the behavior of‘geeked up,’intoxicated individuals and individuals suffering from mental illness.” We agree.

The admission of evidence is a matter which rests largely within the sound discretion of the trial judge; and if an item of evidence has a tendency to establish a fact in issue, that is sufficient to make it relevant and admissible. Unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value.

(Citations omitted.) Sanchez v. State, 321 Ga. App. 333, 334 (741 SE2d 660) (2013).

Following Lewis’s testimony, the State recalled the officer who arrived at the scene and discovered the victim. The State asked the officer the following series of questions:

Q: . . . you are still under oath. You’ve indicated how long you’ve been a police officer. Have you dealt with individuals that have been geeked up or high during the course of your duties?
A: Yes, I have.
Q: What is your experience as a police officer with regard to dealing with those individuals?
A: At the time, they’re hostile.

Defense counsel then objected, “Judge, I’m going to object to this line of questioning. It is not pertinent.” The trial court asked both counsel to approach the bench, and the following colloquy took place:

DEFENSE COUNSEL: Judge, [the officer] said that he never spoke with Mr. Lewis or met with him or saw him that day, so I don’t see how he has anything to offer this jury.... I mean, he’s going to testify about his common knowledge about people who are drinking. Well, that’s within the layperson’s knowledge. He didn’t-—-there’s no evidence that Mr. Lewis was drinking that day that... [the officer] saw. So I would ask that this be excluded.
COURT: Well, [the victim] testified that he appeared to be geeked up.
DEFENSE COUNSEL: But that’s her testimony, Judge, but [the officer] didn’t observe that and he can’t testify —
COURT: Well, you can elicit that on cross-examination. I’m going to allow it.

The State then continued to question the officer regarding his experience with other individuals:

Q: . . . with regard to your experience as a police officer in individuals who are geeked up or high, either on some type of narcotic substance or alcohol, whatever the case may be, what is your experience with regard to those individuals’ ability to — their physical actions?
A: They become combative and they want to fight. And later when they see you in the future, they apologize and say that they are sorry.
Q: Do you have — have you had experience with small people, 5'6", 5'8", 135 pounds, somewhere around there, that are geeked up or high on some substance?
A: Yes, I have.
Q: Have you had situations where those individuals had to have been subdued?
A: Yes, I have.
Q: Has it taken more than one police officer to do that?
A: Yes, it has.
Q: Based upon that experience, do you have any insight as to what that — the substance, whatever it may be, narcotic, prescription med, whatever it can be, that is taken to the extent someone is geeked up or high?

Trial counsel renewed his objection to the testimony, but the trial court overruled the objection, and the State continued with its questioning of the officer:

Q: Based upon your experience and your insight into your personal circumstances having — having dealt with individuals that are high or geeked up on some substance that they’ve ingested, what is your insight into what affect that has upon their physical activities or physical exertion or their ability to do that? Do you have any insight on that one way or the other?
A: Based on my experience dealing with individuals of that nature, in a case with a bipolar person, if they took their medication, they wouldn’t be combative.
Q: But with regard to the effect of that substance upon the physical capabilities or physical ability of that individual or their strength, do you have any insight on that aspect of it?
A: No, I do not.

The victim testified that when Lewis attacked her, he was “[v] ery out of it, he was sweating, eyes was [sic] big. He was just out of it.... He looked high to me. And he was just sweating, just sweating, just sweating.” Lewis testified that he had been prescribed pain medication “over a period of four years,” but that his doctor had “cut him off” because he had been taking the medications for too long. He explained that he had not taken any prescription medication within the past year and only used “[i]buprofen 800 milligrams” for his pain. While Lewis admitted he drank beer, he was not asked, and did not state that he drank beer on the day of the incident. He explained, “I don’t drink alcohol when I’m taking my medication. I take my medication three times a day.”

An officer may testify regarding his training to recognize the manifestations of drug or alcohol intoxication, but such testimony is generally allowed only when the officer has had ample opportunity to observe the demeanor of a party. See, e.g., Sweetenburg v. State, 197 Ga. App. 36, 37 (3) (397 SE2d 451) (1990). As explained in Bly v. State, 283 Ga. 453, 457 (1) (660 SE2d 713) (2008), in those cases, the officer’s opinion is based upon matters personally observed by the officer. Also distinguishable are cases involving the expert testimony of officers regarding their analysis of physical evidence. See id.

But the officer’s testimony here, even if the proper foundation had been laid for the testimony, see Bradley v. State, 292 Ga. App. 737, 738 (1), n. 3 (665 SE2d 428) (2008), was not relevant to the particular circumstances before the jury. While the victim testified that Lewis “looked high,” the officer did not observe Lewis at any time and had no contact with him in the course of his investigation. The officer’s testimony regarding his experience with “geeked up” individuals, that those individuals were combative (or not combative if they were bipolar and had taken medication), had to be subdued, and were apologetic in the future, was improper and did not have a tendency to establish any fact in issue. It did not support the victim’s claim that Lewis was “high,” and it was not relevant to rebut Lewis’s testimony that he did not consume alcohol with his ibuprofen as the State argues. See Howie v. State, 281 Ga. App. 730, 732 (637 SE2d 134) (2006) (officer’s testimony of previous experience with other domestic violence victims was not relevant to explain the conduct or testimony of the victim in the instant case). The trial court therefore erred in allowing this testimony because it did not have a tendency to establish a fact in issue, and the probative value of the testimony was outweighed by the potential for prejudice.

Decided March 12, 2014

J. Clayton Culp, for appellant.

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

Given that the case turned solely on the credibility of Lewis and that of the victim, we cannot say that it is highly probable that admission of the officer’s testimony did not contribute to the verdict. See Render v. State, 267 Ga. 848, 850 (2) (483 SE2d 570) (1997); see also Hill v. State, 310 Ga. App. 695, 699-700 (2) (713 SE2d 891) (2011); compare Buggle v. State, 299 Ga. App. 515, 518 (1) (683 SE2d 85) (2009) (evidence of defendant’s guilt was overwhelming where his testimony that he acted in self-defense was belied by a video of the incident). Although it is undisputed that Lewis stabbed the victim, there was also evidence that he did so in self-defense. See Render, supra. While the evidence was sufficient to sustain Lewis’s conviction, we cannot say that it was overwhelming.

We therefore conclude that the trial court committed reversible error in allowing the officer’s testimony, and we reverse Lewis’s conviction and remand for a new trial.

2. In light of our holding in Division 1 reversing Lewis’s conviction, we do not address his remaining enumerations of error.

Judgment reversed and case remanded for a new trial.

Doyle, R J., and McFadden, J., concur.