text:
    A11A2086.
    MARTIN v. WOODYARD.
    (723 SE2d 293)
   Adams, Judge.

Marlena Martin appeals following the imposition of a stalking protective order, arguing that the trial court abused its discretion by entering the order because the evidence was insufficient to establish the elements of the offense of stalking. We agree and reverse.

The record shows that the appellee, Walter C. Woodyard II, filed a petition for a temporary protective order based on allegations of stalking, specifically that Martin sent him a harassing e-mail and that she created a website with Steve Brewer, a former business associate of Woodyard, to destroy him. Woodyard also sought a protective order against Brewer, and a joint hearing was held on these petitions, following which the trial court dismissed the petition against Brewer but issued a stalking 12-month protective order against Martin.

Testimony presented at the hearing and other evidence of record shows that the difficulties between Martin and Woodyard stemmed from a dispute over property Martin leased from Woodyard, and this dispute had resulted in litigation. At the hearing, Woodyard read several profanity-laden e-mails he alleged Martin sent him, and he also testified that she had created a website and had been e-mailing others “slanderous stuff” but offered no proof of these other alleged acts other than his own testimony. Further, despite the profane and scurrilous nature of the e-mails, Woodyard testified that he would not have filed the petition seeking the protective order against Martin but for her association with Brewer, about whom he expressed fear. Specifically he testified that “all the time she was bothering me, I wasn’t worried about it. When [Brewer] got involved with her, now it’s a concern.”

Martin testified at the hearing and denied sending the e-mails Woodyard introduced at the hearing. She further testified that some of the content of the e-mails reflected e-mails she had sent Woodyard, but asserted that Woodyard had either “doctored” the e-mails to insert the “virulent” language or written them himself and made it appear that they were sent from her e-mail address. However, the trial judge ruled that Woodyard had presented prima facie evidence that Martin sent the e-mails, and that Martin had failed to introduce expert testimony to prove her contention that she was not the sender.

As to her relationship with Brewer, Martin stated that she had contacted him to discuss a lawsuit he had filed against Woodyard, which she discovered during a search of court records. Martin denied that she had any regular contact with Brewer and specifically denied that she knew about the website that had supposedly been created about Woodyard. On cross-examination, Woodyard continued to testify concerning his belief that Martin and Brewer had “become one and the same” and that Brewer was manipulating Martin and had her “doing” the website, but offered no evidence to support this other than his testimony about what he believed their relationship to be.

In issuing the protective order against Martin, the trial court specifically found that the “very profane and disgusting emails” were sufficient to support Woodyard’s allegations of stalking. On appeal, Martin argues that the trial court abused its discretion by finding that Woodyard had met his burden of proof to show that she authored the e-mails, and that even if she did, they did not establish a course of conduct causing Woodyard to fear for his safety.

Stalking is defined in OCGA § 16-5-90 (a) (1):

A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person. . . . [T]he term “contact” shall mean any communication. . . . [T]he term “place or places” shall include any public or private property occupied by the victim other than the residence of the defendant. . . . [T]he term “harassing and intimidating” means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose. . . .

Decided January 30, 2012.

Marlena Martin, pro se.

Walter C. Woodyard II, pro se.

In order to obtain a protective order based on stalking, the petitioner must establish the elements of the offense by a preponderance of the evidence. OCGA §§ 16-5-94 (e), 19-13-3 (c). “The grant or denial of a motion for protective order generally lies within the sound discretion of the trial court. . . ,” and will not be reversed absent an abuse of that discretion. Alexander Properties Group, Inc. v. Doe, 280 Ga. 306, 307 (1) (626 SE2d 497) (2006).

Pilcher v. Stribling, 282 Ga. 166, 167 (647 SE2d 8) (2007).

In this case, we agree with Martin that Woodyard did not meet his evidentiary burden and that the trial court abused its discretion by issuing the protective order. Even construed to support the trial court’s imposition of the protective order, De Louis v. Sheppard, 277 Ga. App. 768, 769 (627 SE2d 846) (2006), and even assuming that sufficient evidence was presented that Martin sent Woodyard the profanity-laden e-mails, Woodyard testified that these e-mails, which did not contain any threats that Martin intended to cause him physical harm, did not concern him or cause him any fear for his safety, and that he only became concerned after Martin “teamed up” with Brewer against him because he feared Brewer. See Wright v. State, 292 Ga. App. 673, 676 (665 SE2d 374) (2008) (reversing defendant’s conviction of aggravated stalking in part because there was “no evidence that [the alleged victim] was in reasonable fear for her safety”). Further, other than his own testimony, Woodyard offered no proof of his allegations that Martin and Brewer were acting in concert against him or that their alleged joint activities were of the type that would support a protective order based on the offense of stalking. Thus, based on the record before us, we find that Woodyard did not meet his burden of showing that Martin committed the offense of stalking and that, therefore, the protective order must be reversed. Ramsey v. Middleton, 310 Ga. App. 300, 302-303 (713 SE2d 428) (2011).

Judgment reversed.

Barnes, P J., and Blackwell, J., concur.

       We note that Woodyard has not filed a brief on appeal.


source: Caselaw Access Project

author: Adams, Judge. BLACKWELL, Judge,

license: Public Domain

text:
    A11A2122.
    APOIAN v. THE STATE.
    (723 SE2d 35)
   Adams, Judge.

Patrick Apoian, an Atlanta police officer, appeals from an order of the Superior Court of Fulton County finding him in contempt.

The relevant facts are as follows: Apoian had been subpoenaed, apparently through a procedure established between the Fulton County District Attorney’s Office and the Atlanta Police Department, to testify in the case of State v. Alfonzo Phillips. The day before trial, Apoian was contacted by someone from the DA’s office and told that he would be needed in court the following morning, probably around 9:00 a.m. Further, because Apoian represented that he would be in his office by 8:00 a.m. and that it would only take him a few minutes to travel from his office to the courthouse, it was agreed that he would be contacted when his testimony was needed and he would immediately proceed to the courthouse. However, on the morning of trial, Apoian called in sick to work and was not in his office when attempts were made to reach him there. Apoian was informed by a supervisor that he needed to appear in court even if he was sick, and the prosecutor was notified that Apoian had called in sick and would be arriving late.

The proceedings against Alfonzo Phillips commenced at about 9:59 a.m., at which time the prosecutor informed the trial judge that Apoian, and another officer who was also under subpoena, had not yet arrived and that Apoian was estimated to arrive in approximately one hour. Further, the prosecutor stated that the officers’ testimony was material to the State’s case, and indicated that Apoian’s testimony was necessary to proceed with both the hearing on a motion to suppress and the trial. The trial judge, however, noting that she had dealt with “officers . . . who believe that summonses are invitations ...” indicated that she was unwilling to wait for Apoian to arrive and dismissed the case for want of prosecution.

The trial court also asked the prosecutor if the State would be taking action regarding Apoian’s failure to appear in response to the subpoena and indicated she was ready to have a hearing when he arrived. The prosecutor stated he would leave that to the discretion of the court, but added “I would say yes.” Apoian arrived at about 12:15 p.m., and a contempt hearing was held that same afternoon. Prior to Apoian’s testimony, the trial judge stated that her “concern quite candidly is that there are instances where members of the Atlanta Police Department in particular seem to confuse the issu-anee of a subpoena with an invitation to some kind of affair.” Apoian then testified that he did not know if he had actually been subpoenaed, but that he knew he was supposed to be in court that morning, and that his understanding was that the prosecutor would notify him when his testimony was needed. Apoian testified, however, that he had been up all night sick and called and asked his office to inform the court that he was sick and to request that the trial be postponed. However, after his office contacted the prosecutor, his office called him back to inform him he needed to be in court, and Apoian tried to call the number he was given to tell the prosecutor he was on his way and then proceeded to get ready and travel to the courthouse from his home, arriving, as stated above, at about 12:15 p.m. The trial judge, after noting that she appreciated the fact that Apoian was “feeling a bit under the weather,” stated further that it seemed that Apoian could have taken additional steps to notify the prosecutor that he would not be able to come to court as directed by the subpoena and thus found Apoian in contempt. Further, although the trial court declined to impose any jail time, Apoian was fined the maximum of $500 and ordered to write a letter of apology to the alleged victim of the crime explaining that the trial could not go forward because he did not “acknowledge” the subpoena. This order was subsequently reduced to writing but was not filed until May 19, 2011 “nunc pro tunc” to February 2, 2011, the day the contempt hearing was held. In that order the trial court made the additional finding that the dismissal of the case against Phillips for want of prosecution was “partly due” to the State’s failure to move for a continuance once it was notified that Apoian was unavailable to testify, or, alternatively, to seek a Writ of Attachment. Nevertheless, the court further stated that the dismissal was “in larger part” due to Apoian’s failure to appear and testify in response to the subpoena, and, in keeping with her verbal ruling following the hearing, fined him $500 and ordered him to write the letter of apology to the victim. It is from this order that Apoian now appeals.

1. Apoian first contends that the trial court erred by holding him in contempt because he was not afforded due process. We agree. This Court has previously held that failure to respond to a subpoena is not the type of conduct subject to summary contempt proceedings. Moody v. State, 131 Ga. App. 355, 359 (2) (206 SE2d 79) (1974). Thus, as Apoian correctly urges, he was entitled to reasonable notice of the charges, the opportunity to call witnesses and present evidence, and the opportunity to retain counsel of his own choosing and adequately prepare his defense. E.g., Ramirez v. State, 279 Ga. 13 (608 SE2d 645) (2005); Hayes v. State, 298 Ga. App. 419, 423 (2) (680 SE2d 508) (2009); In re Hasty, 215 Ga. App. 349 (450 SE2d 848) (1994). Here, the trial judge announced that the contempt hearing would be conducted when Apoian arrived at the courthouse. Apoian was not given reasonable notice of the charge of contempt and did not have an opportunity to retain counsel or otherwise adequately prepare his defense. The contempt proceedings in this case clearly did not comply with due process, and the trial court’s finding of contempt must be vacated and the case remanded for further proceedings. E.g., Newton v. Golden Grove Pecan Farm, 309 Ga. App. 764, 768-769 (1) (711 SE2d 351) (2011).

2. Apoian also contends the trial judge should have recused herself, sua sponte, from the contempt proceedings, citing to the statements the judge made which he contends could indicate that she held him in contempt because she was angry with the Atlanta Police Department because of prior instances when subpoenaed officers from the APD did not appear in court. Pretermitting whether these remarks warrant recusal, upon remand Apoian shall be afforded the opportunity to raise the issue of whether the contempt hearing should be conducted by another judge.

3. Because we have vacated the finding of contempt, we find it unnecessary to address Apoian’s remaining enumerations of error, concerning the timeliness within which the trial court filed the written contempt order and challenging the sufficiency of the evidence. E.g., In re Hatfield, 290 Ga. App. 134, 139 (3) (658 SE2d 871) (2008).

Judgment vacated and case remanded.

Barnes, P. J., concurs. Blackwell, J., concurs fully and specially.

BLACKWELL, Judge,

concurring fully and specially.

I concur fully in the opinion of the Court, but I write separately to express my doubts about the sufficiency of the evidence on which the court below based its finding of contempt. We have held before that a witness can be convicted of criminal contempt for his failure to appear as directed by a subpoena only upon proof that the subpoena was, in fact, served upon the witness and that it was served by means authorized by OCGA § 24-10-23 or other law. In Edenfield v. State, 147 Ga. App. 502 (249 SE2d 316) (1978), a prosecuting attorney attempted to serve a state trooper with a subpoena by delivering it to the State Patrol post to which the trooper was assigned, where a clerk put it in a mailbox for the trooper. The trooper eventually received the subpoena, but he failed to appear as directed by the subpoena, and he was convicted of contempt for his failure to appear. We reversed that conviction because the trooper was not served personally or by certified mail, the means of service authorized by OCGA § 24-10-23. See 147 Ga. App. at 503 (“The lack of personal service invalidated the legal force and effect of the subpoena; therefore, the subpoena could not serve as the basis for a conviction as a defaulting witness.”). We did so notwithstanding that the prosecuting attorney had served the subpoena upon the trooper “in accordance with established practice” and, according to the State, by “the only practicable method” for service upon officers of the State Patrol, a method that, again, actually caused the subpoena to ultimately be delivered into the hands of the trooper. See id. at 502.

Although the evidence in this case shows that Officer Apoian knew that he was expected in court and, in fact, had given assurances that he would appear upon request, there appears to be no evidence that the subpoena requiring his appearance actually was laid in his hands, much less that it was laid in his hands by means authorized for the service of a subpoena. The evidence instead shows merely that the prosecuting attorneys delivered the subpoena to a representative of the Atlanta Police Department, who apparently then used some established protocol to notify Officer Apoian that his appearance in court was required. Whether that protocol involved delivery of the subpoena itself to Officer Apoian, and if so, whether it involved delivery by means authorized for the service of a subpoena, is unknown, inasmuch as no witness testified about the protocol generally or what was done specifically with the subpoena directed to Officer Apoian. This evidence is not, I think, sufficient to sustain a conviction for contempt.

Decided January 30, 2012.

David A. Beall, for appellant.

Paul L. Howard, Jr., District Attorney, for appellee.

These comments are no criticism of the prosecuting attorneys for relying upon the Atlanta Police Department to notify individual officers that their appearance in court is required. To the contrary, the protocol used to summon Atlanta police officers may be quite efficient and effective, and considering the costs that might otherwise be incurred by the office of the prosecuting attorneys in making personal service of subpoenas upon hundreds of law enforcement officers each week, the protocol may be the most fiscally responsible course, even if it does not always work perfectly. There is nothing wrong with a prosecuting attorney relying upon means other than those authorized by statute for service of subpoenas upon law enforcement officers, especially when officers routinely appear when required, the lack of proper service notwithstanding. But when a prosecuting attorney uses some means of service other than those authorized by law, the failure of an officer to appear for court generally will not subject the officer to a finding of contempt. In the absence of proper service, even when an officer has promised to appear, he is bound to do so not by law, but only by his conscience, the standards of professionalism, and perhaps the direction of the law enforcement agency that employs him.

What the Atlanta Police protocol involves, and whether it caused Officer Apoian to be served with a subpoena in a manner authorized by law for the service of subpoenas, are questions to be resolved on remand, if the court below elects to proceed further with the charge of contempt. Perhaps evidence adduced on remand will show that Officer Apoian was, in fact, served with a subpoena by means authorized by statute. But in the absence of such evidence, a conviction for contempt cannot, I think, be sustained.

       We note that on appeal the district attorney’s office has communicated to this Court that it is aligned with Apoian’s position in this case.

       The subpoena was introduced into evidence at the hearing, and it appears that a representative from the Atlanta Police Department signed on behalf of Apoian and a number of other officers.

       [I]n indirect contempt actions, the trial judge who was presiding over the triad during which the alleged contumacious conduct occurred may preside over the contempt hearing if the “contumacious conduct was not directed toward the judge” and “the judge did not react to the contumacious conduct in such manner as to become involved in the controversy.”

        Ramirez, 279 Ga. at 15 (2).

       The Court does not decide whether the evidence adduced at the summary hearing is sufficient to sustain a contempt conviction, and I agree that it is not necessary for us to definitively decide that question. See In re Troutt, 460 F3d 887, 892-893 (II) (7th Cir. 2006) (remanding for another contempt hearing on procedural grounds and declining to address sufficiency of evidence); see also United States v. Dixon, 509 U. S. 688, 697 (II) n.l (113 SC 2849, 125 LE2d 556) (1993) (“We have not held . . . that the double jeopardy guarantee applies to [summary contempt] proceedings.”). But because we are remanding for another hearing, I write to express my concerns about the evidentiary basis of the earlier finding of contempt in the hope that my comments might prove helpful to the court below and the parties on remand.

       Officer Apoian testified that he could not remember whether he had received any subpoena. No witness testified that a subpoena was, in fact, put in his hands or that he ever acknowledged receipt of a subpoena.


author: Adams, Judge.

text:
    A11A1823.
    STROZIER v. THE STATE.
    (723 SE2d 39)
   Adams, Judge.

Wade Douglas Strozier appeals the denial of his motion for new trial in connection with his conviction on one count of possession of drugs by an inmate. He asserts that the trial court erred in denying his motion because the evidence was insufficient to support his conviction. We agree and reverse.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Thomas v. State, 262 Ga. App. 492, 492-493 (1) (589 SE2d 243) (2003). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Collinsworth v. State, 276 Ga. App. 58, 59 (622 SE2d 419) (2005).

On February 16, 2004, Strozier was an inmate in Dooly State Prison. That day, another inmate, James Pinkins, Jr., was assigned to clean up inside the administration area and visitation lobby at the prison, while Strozier had the duty of maintaining the area outside. As a part of his duties, Pinkins was removing cigarette butts from an ash tray above a cylindrical trash can, which was positioned outside the visitation lobby to accommodate smokers (the “Lobby Trash Can”). After removing the cigarette butts from the tray, he noticed a white plastic grocery bag inside the cylindrical container under the tray. Thinking that it was a dirty diaper, he picked it up and put it in the bag he used to collect the cigarette butts. When the white bag dropped against the cement sidewalk, however, “it sounded hard like a plate or something.” Concerned that something may have broken, Pinkins retrieved the white bag, opened it and looked inside where he observed something that “looked like some drugs” sitting on top of other items. Pinkins closed the bag, put it back in the Lobby Trash Can, and went inside to retrieve a deputy warden to report what he saw. Finding that the deputy wardens were in a meeting, he returned to his duties and started washing dishes. When Captain Antwan Caldwell exited the meeting, Pinkins told him about the white bag and proceeded to show him. As Pinkins opened the door to the outside, he saw Strozier getting the bag out of the Lobby Trash Can. He told Caldwell, “it’s too late now sir, he has got it.”

Caldwell testified that Pinkins was ahead of him at the door. When Caldwell got to the door, he looked out and Strozier was the only person he saw. In fact, Strozier was the only inmate authorized to be in that outside area. He was standing on a grassy area near another building holding an empty trash bag. Strozier was not near the Lobby Trash Can at that point, and Caldwell did not see Strozier handle the white bag. Caldwell stepped around Pinkins to inspect the Lobby Trash Can and found it was empty. Caldwell told Pinkins to go inside, and Caldwell stepped back inside to summon another officer, Sergeant Michael Williams. When Caldwell went inside to use the radio, he lost sight of Strozier and did not see him again until Williams and he stepped back outside approximately three to five minutes later.

The officers escorted Strozier to the I. D. building and summoned officers from the Correctional Emergency Response Team to conduct a strip search. In the meantime, Caldwell searched a big metal trash can outside the I. D. building (the “I. D. Trash Can”) and discovered a white grocery bag tied at the top. Caldwell removed the bag from the I. D. Trash Can, and Williams and he took it to the warden’s office. There, they opened the bag and found six smaller plastic bags wrapped in black tape and containing marijuana. They also discovered a cell phone and a phone adapter in the bag.

Caldwell testified that emptying the bottom portion of the Lobby Trash Can was not within Pinkins’s duties, which were confined to removing the cigarette butts from the top. Emptying the trash can was the duty of whoever worked outside. All trash from outside the prison, including the trash in the I. D. Trash Can, was taken up to the vehicle gate for later pickup and thus did not come back inside the prison building.

Williams testified that Strozier had the duty that day of emptying trash from both cans, but the proper procedure was for Strozier to take the trash from one can and place it directly by the gate for pickup. He should not have taken the trash from one can and placed it in the other. In fact, Strozier would have to pass the gate to get to the I. D. Trash Can from the Lobby Trash Can. Caldwell acknowledged, however, that Strozier could have put trash he had picked up from the Lobby Trash Can into the I. D. Trash Can. Additionally, both Caldwell and Williams testified that Strozier was strip searched each time he left his work detail.

Strozier denied any knowledge of the marijuana as reflected in the statement he gave at the time of the incident, which read in pertinent part:

My job is to keep the front of the institution clean and looking neat. I took the trash out of the trash bin in front of the visitation area as normal and placed in the larger trash can behind I. D. As to what was in the trash, I don’t know, nor who it belongs to. I don’t take the time to look through the trash before I dispose of it. As to anything else, I don’t have a clue as to what is going on.

The evidence further showed that anyone coming in and out of the prison had access to the area where the Lobby Trash Can was located, including all prison employees and any visitors. In fact, the prison had visitation the weekend before the discovery of the marijuana, on Saturday and Sunday, February 14 and 15, but the trash cans were not emptied until Pinkins and Strozier came on duty Monday morning, February 16.

The State also presented the testimony of Carla Denise Brown, who testified that in February 2004, her boyfriend was Jeremy Johnson, an inmate at Dooly State Prison. In order to reduce the cost to her of Johnson’s collect phone calls from prison, Brown agreed to buy Johnson a cell phone and gave it to his friend Jay Rivers to take to the prison. She identified the cell phone from the white bag as the phone she bought for Johnson. Brown testified that she did not know Strozier and never heard Johnson discuss Strozier. The State presented no evidence of any connection between Strozier and Johnson. In fact, Strozier and Johnson were housed on opposite sides of the prison — with Strozier in the east side dormitories, and Johnson in the west side dormitories — although all inmates had the opportunity to intermingle at times.

Strozier argues that this circumstantial evidence was insufficient to support his conviction because it failed to exclude every reasonable hypothesis except that of his guilt.

Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.

(Citations and punctuation omitted.) Rogers v. State, 290 Ga. 18, 23 (717 SE2d 629) (2011).

To prove the charge against Strozier, the State was required to show that he possessed the drugs with the requisite criminal intent.

Thus,

the State was required to show some connection between [Strozier] and the drugs other than spatial proximity. In fact, the State was required to show that [Strozier] knowingly had both the power and intention at a given time to exercise control over the drugs. Power may be inferred from access to the drugs, while the matter of intent may be derived from the surrounding circumstances. Circumstances showing an intent to exercise control over the drugs include a defendant’s attempts to flee or elude police; inconsistent explanations by the defendant for [his] behavior; the presence of significant amounts of contraband and drug paraphernalia in plain view; the defendant’s possession of large amounts of cash, other indicia of the sale of drugs, or drug-related paraphernalia; evidence that the defendant was under the influence of drugs; or drug residue found on the defendant.

(Citations, punctuation and footnotes omitted.) Scott v. State, 305 Ga. App. 596, 598 (699 SE2d 894) (2010).

The State failed to show any such incriminating circumstances in this case. The evidence showed that any employee or visitor who passed through the area could have placed the bag in the Lobby Trash Can. Although Pinkins testified, and Strozier admitted, that he removed the white bag from the Lobby Trash Can and put it in the I. D. Trash Can, it was Strozier’s job to empty those trash cans. Even if Strozier violated jail procedure when he took the plastic grocery bag to the I. D. Trash Can instead of the gate, no evidence existed that Strozier ever opened the bag or knew what was inside. The State failed to present any evidence to support even an inference that Strozier had any prior knowledge of the drugs or any idea of what was in the bag. To the contrary, the evidence showed that the phone in the bag was purchased by someone who had no connection with Strozier other than the fact that her boyfriend, Johnson, was also one of approximately 1,200 other inmates at the same prison. The State established no connection between Strozier and Johnson, nor did the prosecution present any evidence showing that Strozier had any connection with drugs while in prison. For example, no evidence was presented from the strip search of Strozier that day. And nothing in the surrounding circumstances supports an inference that Strozier intended to do anything other than simply discard the bag and its contents. The contents of that I. D. Trash Can were slated to be removed from the prison along with the other trash. There was no indication that Strozier planned to get the contents of the bag inside the prison. He placed the drugs in a trash can to which no other inmate had access, and Strozier knew that he would be strip searched when he went back inside. Thus, the State failed to prove anything against Strozier other than a violation of prison procedure for disposing of trash, but such a violation alone is insufficient to support Strozier’s conviction.

Decided January 31, 2012.

Rashawn D. Clark, for appellant.

Denise D. Fachini, District Attorney, Matthew P. Brown, Assistant District Attorney, for appellee.

Accordingly, the State failed to demonstrate that Strozier had the bag in his possession for any reason other than the performance of his assigned duties and thus failed to exclude the reasonable hypothesis that Strozier was merely performing his job that morning when he removed the bag from one trash can and placed it in the other. We, therefore, reverse his conviction for possession of drugs by an inmate. See Rogers v. State, 302 Ga. App. 65, 69 (1) (690 SE2d 437) (2010) (conviction reversed where only legal evidence linking defendant to marijuana was his spatial proximity to it); Millsaps v. State, 300 Ga. App. 383, 385-386 (685 SE2d 371) (2009) (evidence insufficient where state offered no evidence that defendant knew that the baggy under his seat contained contraband or that he hid the contraband). Compare Collinsworth v. State, 276 Ga. App. at 60 (affirming conviction for possession of drugs by an inmate where marijuana found in inmate’s cell); Webb v. State, 249 Ga. App. 214, 216 (1) (547 SE2d 767) (2001) (same where marijuana found in container belonging to inmate in locker, which opened only with warden’s master key or combination known only to inmate).

Judgment reversed.

Barnes, P. J., and Blackwell, J., concur.

       Under OCGA § 42-5-18 (c),
      [i]t shall be unlawful for an inmate to possess a gun, pistol, or any other weapon; any intoxicating liquor; amphetamines, biphetamines, or any other hallucinogenic drugs or other drugs, regardless of the amount; a telecommunications device; or any other item without the authorization of the warden or superintendent or his or her designee.

       Johnson and Rivers were both co-defendants at Strozier’s trial.


author: PHIPPS, Presiding Judge.

text:
    A11A1894.
    DAILEY v. THE STATE.
    (723 SE2d 43)
   PHIPPS, Presiding Judge.

In connection with a crime spree that culminated in a shoot-out with a law enforcement officer, Jay Matthew Dailey was tried by a jury, then convicted of various offenses against numerous victims. In this appeal, Dailey challenges on Miranda grounds the admission of his police statements; he also challenges the denial of certain jury charge requests. Pretermitting whether any Miranda violation occurred, we conclude that the trial transcript confirms that any error in the admission of the contested statements was harmless. The transcript confirms also that Dailey was not entitled to the cited jury charges. We affirm.

The crime spree occurred at lunchtime on February 1, 2008, along a well-traveled stretch of roadway. To prove its case that Dailey had committed the crimes, the state called at trial numerous victims, bystanders, and responding officers. They recounted the following.

An 11-year-old boy who was visiting his great-grandmother at her house testified that he noticed a car parked at a nearby church, particularly because no other cars were there. Abruptly, with tires squealing, the car sped away from the church and crashed into a fire hydrant across the street. The driver, a man, got out of the car and began walking down the street. He was wearing a bulletproof vest; he was talking to himself and “shaking his head”; his gait was “kind of strange, like he was drunk”; and he was carrying in his hand what appeared to be a gun. The man walked out of the boy’s view. Soon thereafter, the boy heard screams and gunfire.

A woman who was traveling that roadway to pick up her preschool children testified that, around the time in question, she saw a car positioned as though it had crashed into a fire hydrant; the car was located in a grassy area. A man was standing behind the car, putting on or adjusting a bulletproof vest. After doing so, the man darted across the street, and the woman could no longer see him.

Leresa Graham testified that, around the time in question, she was driving her gold SUV to her place of employment in the area. A man ran toward her in her lane of travel, and he was putting on what appeared to be a bulletproof police vest. Graham slowed her vehicle, and the man approached her window, stated that he was a police officer, displayed a police badge, claimed that he was hurt, and asked her to dial 911. But when she grabbed her phone, the man slapped it out of her hand, then sprayed pepper spray on her face. Graham screamed and closed her window, clamping the man’s arm. The man repeatedly screamed that he would kill her. Barely able to see, Graham continued to scream for help. The man began “checking the [back] door” of Graham’s vehicle. He eventually smashed Graham’s window with an object she was unable to identify, threw the pepper spray cannister at her, then walked away. Because of the pepper spray effects, Graham could not ascertain the man’s whereabouts, and she continued to scream for help about a man trying to kill her. Soon thereafter, Graham recalled, a man, and later, a police officer came to her aid. At trial, Graham described her injuries, and she identified Dailey as the man who had accosted her, injured her with pepper spray, and threatened to kill her.

Chuck Sheldt testified that, at about 11:00 a.m. or noon that day, he was driving along his usual route to his job. As he approached a gold SUV stopped in his travel lane, he saw a man standing outside the SUV beating on the driver’s side window with “something in his hand.” The man was wearing a bulletproof vest. Although Sheldt drove around the commotion, he circled back to the SUV to render aid. By then, the driver’s window of the SUV had been shattered, and the woman inside the vehicle was screaming “at the top of her lungs.” Sheldt stopped his truck at the SUV to talk to the man, who was about eight feet away. But the man, using both hands, raised a gun, then aimed it at Sheldt. Instantly, Sheldt ducked and “hit the gas pedal,” running his truck into a ditch before fleeing the scene. Sheldt dialed 911 and reported the gunman. At trial, Sheldt identified Dailey as the gunman.

Barry Smith’s wife worked in the area. As he was taking lunch to her that day, he came upon a car positioned at a fire hydrant such that it appeared to have “taken a quick dart off the road.” Smith noted a man nearby who was staggering, “almost falling into the road”; Smith noted also that the man was wearing a vest. After dropping off his wife’s lunch about a mile away, he traveled back along the same route. This time, he saw a gold SUV stopped in his lane of traffic, and a truck (and another vehicle) that had “pulled off across from” the stopped SUV As Smith was slowly maneuvering around the vehicles, he encountered the man, who looked directly at him, raised in clasped hands what Smith discerned was a gun, then aimed the weapon at him. There was no one else near Smith, and he characterized the gunman’s action as “deliberate” and targeted at him. Smith drove away from the area, saw a patrol car within a mile, flagged it down, and reported to the officer inside that a man wearing a vest had just pointed a gun at him. At trial, Smith identified Dailey as the gunman.

Paul Phillips was the officer flagged down by Smith. He testified that he was driving home from an extra job directing traffic in the area at about noon on the date in question. He was wearing a police jacket and duty pants when he stopped his marked patrol vehicle at the behest of a motorist waving insistently. Upon hearing the motorist’s report about a gunman, Phillips activated his patrol car’s blue lights and drove to the reported scene about a quarter-mile away. The officer saw an SUV stopped in the roadway, and alongside it on the ground, broken glass. He stopped near the SUV( then exited his patrol car. Screams were coming from the SUV which was undulating from weight shifting. About this time, a man wearing police gear — a bulletproof vest and a duty belt — brandished a firearm, then “made a tactical maneuver around the corner of the back of the [SUV]” to face Phillips. Determining, thus, that the gunman was an officer, Phillips signaled to him that he was a law enforcement officer there to help. But the gunman aimed his gun at Phillips, who then commanded: “Police, drop the gun!” The man instead opened fire, severely wounding Phillips. Returning gunfire, Phillips retreated to his patrol car; shots continued to be fired at him, shattering the patrol car’s windshield. The barrage ceased, however, and Phillips observed that the man’s hand was bleeding and that the man nevertheless was attempting to “function” his weapon. Thereupon, Phillips ordered the gunman to drop his weapon, walk toward him, then lie on the ground. This time, the shooter complied with Phillips’s command. At about five feet from the patrol car, the shooter blurted: “I’m a cop. I’m a drunk cop, but I’m a cop.” Phillips issued an “officer down” summons for assistance. Because of Phillips’s severe wound, a motorist who meanwhile had stopped at the scene helped to restrain the shooter on the ground, while Phillips was “covering the defendant with [his] firearm to assure that he did not injure the public any further.” At trial, Phillips identified Dailey as the shooter.

The first officer to respond to Phillips’s summons arrived to find a woman screaming in a gold SUV stopped in a lane of traffic; a man lying on the ground, bleeding from a wounded hand; and an officer sitting in a patrol car, bleeding profusely from a wounded arm. Lying on the ground near the SUV were a bulletproof vest and a handgun. Based on information provided by Phillips, the woman in the gold SUV and the man restraining the man with the wounded hand, the responding officer handcuffed the man lying on the ground. When the responding officer asked Phillips whether that man was the only perpetrator, Phillips responded yes. Also, the man himself volunteered, “I’m the perp . . . I’m the only perp.” The man added that he had “messed up” and recommended that the responding officer “just shoot him in the head.” The responding officer found on the perpetrator’s person two loaded firearms, ammunition clips, and a pocket knife. At trial, the responding officer identified Dailey as the man who had been lying on the ground with weaponry stashed on his person and who identified himself as the sole perpetrator of the crimes committed.

The second officer to respond to Phillips’s summons arrived to find a man lying on the ground in handcuffs and an officer attending to Phillips’s visible injury. This officer testified about a fourth handgun found in a nearby grassy area. He testified also that the handcuffed man said more than once that he was the only “perp on scene” and that he wanted the officers to kill him. At trial, this second responding officer identified Dailey as the man who claimed to have solely perpetrated crimes at the scene.

The third officer who responded testified that he arrived to find a bleeding, handcuffed man lying on the ground; a bleeding Phillips sitting in his patrol car with bullet holes through the driver’s side of the windshield; a hysterical woman in a gold SUV; and a bulletproof vest lying on the ground. This third responding officer inspected the vest and found a bullet lodged in it. About this time, emergency medical personnel arrived and began to treat the wounded men. This responding officer accompanied the perpetrator during his ambulance transport to the hospital’s emergency room to make sure that the man did not leave and did not hurt anyone else. At trial, this responding officer identified Dailey as the handcuffed man whom he had accompanied in an ambulance to a hospital.

The third responding officer gave additional testimony concerning Dailey. Throughout his transport to the hospital, and without any question or comment posed to him by the officer, Dailey ranted: he worked for a police department; the department should not have hired him; and if the accompanying officer did not shoot him, he would take the officer’s gun. The accompanying officer testified that he responded to Dailey only when Dailey threatened to take his weapon — instructing Dailey that he would not do so.

Additionally, the state presented testimony of other witnesses who gave accounts similar to those set forth above. For example, a resident noticed a gold SUV stopped in the roadway in front of her home; a man was reaching through, then later beating on one of its windows. The resident also heard yelling from the area of the SUV and she observed the man walking around the SUV When a marked patrol car approached, the resident discerned that the man had a gun in his hand. And when the patrol car stopped on one side of the SUV she saw the man walk to the opposite side of the SUV The resident also witnessed a uniformed officer exit the patrol car, and the man immediately raise his gun over the SUV and shoot at the officer. She, too, called 911.

Another state’s witness was the motorist who stopped at the scene and was later able to render assistance to the wounded Phillips in restraining Dailey. He testified that, traveling that road to work, he came upon a stopped SUV; a woman was hanging out of its window, waving her hands, frantically asking for help. He stopped. The woman’s face was red and her eyes were watering; also, a window had been broken out of the SUV Within moments, the motorist recalled, a man wearing a bulletproof vest and carrying a gun began walking toward them. And about that time, the motorist recalled, Phillips arrived in a marked patrol car and yelled for the man wearing the vest to put down his weapon. A gunfight ensued, until ultimately the man dropped his weapon and lay on the ground. At some point, the motorist recalled at trial, the man had taken off his vest. The man apologized and said that he had been “drinking.” Phillips revealed that he had been shot. Additional officers arrived about three minutes later. At trial, this motorist who stopped to render aid to the frantic woman identified Dailey as the gunman who had worn the vest and who had engaged Phillips in a gunfight.

The state also called a city solicitor who testified that, on the day in question, Dailey was a police officer and had appeared as an officer in a court proceeding earlier that day. Dailey elected not to testify. He was convicted of the following offenses. Regarding Phillips, the officer shot at the scene, Dailey was convicted of aggravated assault upon a peace officer and possession of a firearm during commission of a felony. Regarding Graham, the woman who was verbally and physically attacked in her SU\f Dailey was convicted of simple assault, issuing a terroristic threat, and battery. Regarding Sheldt, the motorist who drove his truck through a ditch after being threatened at gunpoint, Dailey was convicted of aggravated assault and possession of a firearm during commission of a felony. Regarding Smith, the other motorist who flagged down Phillips after being threatened at gunpoint, Dailey was convicted of aggravated assault and possession of a firearm or knife during commission of a felony.

1. Dailey contends that the trial court erred by admitting in evidence statements he made to police at the hospital because they were made without the benefit of Miranda warnings.

At about 1:45 p.m. on February 1, 2008, two police detectives arrived at the hospital to investigate reported shootings of two police officers. They found several officers stationed outside Dailey’s room, where Dailey was being treated by medical professionals.

The detectives spoke with Dailey three times about the incident. Their first interview, which was without any Miranda warnings, was cut short because Dailey became combative with medical staff and had to be restrained for treatment. During their second interview about two hours later, Dailey was advised at some point of his Miranda rights; he continued to answer the police inquiries. And at the start of their third interview, Dailey was given Miranda warnings. Audio recordings of these three police interviews were played for the jury.

On appeal, Dailey challenges the admission of statements he made during only the first and second police interviews. During the first interview, Dailey stated that he was a police officer; that he had appeared in court earlier that morning; that he never should have been a cop; that after leaving work, he had consumed alcoholic beverage; that he was “drunk”; that he apparently wanted to die — “death by cop”; that he had been wearing a bulletproof vest; and that he had no memory of why he had stopped his vehicle, where he was headed before he stopped it, why he would have engaged in a gunfight with a police officer, or anything else at the scene.

During the second interview, Dailey made many of the same statements. He stated also that he could recall being in a car wreck on the side of a road; that he had a vague recollection of shooting his gun at the scene, but did not know why he would have been shooting; that he recalled a woman screaming, but could not remember what she was saying; and that he recalled either himself or another man yelling, “I’m a cop; I’m hit!”

Challenging the admissibility of the evidence, Dailey contends that the trial court erred by determining that he was not in custody during the first and second interviews. Dailey maintains that, given the circumstances surrounding the detectives’ inquiries, a reasonable person in his situation would have perceived that he was in custody.

Miranda warnings must be administered to an accused when the accused is in custody and subjected to interrogation or its functional equivalent, i.e., any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. Voluntary statements made by unwarned suspects in custodial interrogation are presumed to be compulsory and are inadmissible at trial.

Notwithstanding, to be successful, a claim of error requires a showing of both harm and error. Here, even assuming that the trial court erred by admitting the challenged police statements (as not tainted by a Miranda violation), the error was harmless in light of the fact that the cited police statements were cumulative of other unchallenged confessions by Dailey. Dailey repeatedly identified himself at the scene as the sole perpetrator. And his on-the-scene confessions, as well as remarks he made to a police officer en route to the hospital, were “spontaneous and unsolicited statements] not made in response to any form of custodial interrogation” and therefore were “not subject to the strictures of Miranda and [were] admissible without the warnings having been given.” Moreover, as Dailey concedes on appeal, “At the scene . . . Officer Phillips, bystanders and appellant told officers that appellant was the only perpetrator.” And as detailed above, numerous victims and eyewitnesses identified Dailey — both at the scene and at trial — as the sole perpetrator of the crimes for which he was convicted. In addition, at the scene, handguns and other weaponry were seized from Dailey’s person; a bulletproof vest, with a bullet lodged therein, was found near the SUV; and a gun was discovered in a grassy area nearby. In light of these circumstances, Dailey has demonstrated no harm. “Since appellant has not demonstrated any harm suffered by him as a result of the trial court’s denial of his motion to suppress, he has presented no basis for reversal of his conviction[s].”

2. Dailey contends that the trial court erred by denying his requests to charge the jury on the misdemeanors of pointing a gun at another and reckless conduct as lesser included offenses of the felony counts of aggravated assault committed against Sheldt and Smith. Those counts alleged that Dailey committed aggravated assault by “pointing a gun” at the respective victims. “[A] person who, using a deadly weapon, commits an act which places another in reasonable apprehension of immediate violent injury commits the felony of aggravated assault.” Dailey argues that he was entitled to have the jury charged on the cited misdemeanor offenses, asserting there was evidence that Sheldt and Smith were not placed in reasonable apprehension of immediately receiving a violent injury; additionally, Dailey argues that there was evidence that he did not intentionally point the gun at those two men. “Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.”

(a) Pointing a gun at another. Dailey is correct in that “[w]hat the assault statutes require in addition to an awareness by the victim that a pistol is pointed at [him] is a reasonable perception on [his] part of the danger of immediately receiving a violent injury.” He is also correct in that, “[i]f the victim is not placed in reasonable apprehension of immediate violent injury by the pointing of the firearm, only the misdemeanor of pointing a firearm (and not the felony of aggravated assault) has been committed.” His argument is nevertheless unavailing because of uncontradicted evidence that both Sheldt and Smith were placed in reasonable apprehension of immediately receiving a violent injury when Dailey pointed a gun at them. “If the pointing of a firearm places the victim in reasonable apprehension of immediate violent injury, then the felony of aggravated assault, rather than the misdemeanor of [pointing a gun at another] has occurred.”

Here, “[Sheldt’s] apprehension of immediate violent injury was apparent — [he] fled in fright.” Sheldt testified that when he drove within about eight feet of Dailey, Dailey turned to face him, raised a gun, and pointed it at him. Sheldt testified that he ducked, “hit the gas pedal,” and drove into a ditch, but nevertheless “just kept going.” Sheldt testified that, as he was driving away, he reported the gunman to 911. Similarly, Smith testified that, when he encountered Dailey, Dailey looked directly at him, raised a gun, and pointed it at him; Smith testified that he discerned that Dailey had deliberately pointed the gun at him, and thus flagged down a police officer, less than a mile away, and reported that a gun had just been pointed at him.

Accordingly, as to Sheldt and as to Smith,

[t]he only testimony was that the weapon was pointed as a threat and perceived as such, and therefore an assault. Although pointing a firearm at another is an offense included in aggravated assault, it is not error to refuse a charge on it when the evidence does not reasonably raise the issue that the defendant may be guilty only of the lesser crime.

(b) Reckless conduct. Dailey correctly argues that the requisite intent for the aggravated assault counts was “only the criminal intent to commit the acts which caused the victim to be reasonably apprehensive of receiving a violent injury.” Dailey is incorrect, however, in his argument that evidence of his intoxication allowed for a finding that he did not have the requisite mental state — intending to point a gun at Sheldt or at Smith.

Under Georgia law, one cannot be convicted of a crime where, due to involuntary intoxication, he or she lacks sufficient mental capacity to distinguish between right and wrong in relation to the actus reus. Involuntary intoxication means intoxication caused by consumption of a substance through excusable ignorance, or the coercion, fraud, artifice, or contrivance of another person. However, it has long been solidly established that voluntary intoxication shall not be an excuse for any criminal act or omission, except in the extreme situation where the intoxication has resulted in the alteration of brain function so as to negate intent, and even then, the brain function alteration must be more than temporary.

Although Dailey relies upon evidence that he was intoxicated, he has cited no evidence that his intoxicated state was involuntary; nor has he cited any evidence that his intoxication resulted in any permanent brain function alteration. The evidence showed that Dailey committed the two counts of aggravated assault at issue here; evidence merely that he was intoxicated “does not make them anything less.”

[T]he only testimony was that in pointing the pistol at [Sheldt and Smith], he did so intentionally, not “consciously disregarding a substantial and unjustifiable risk that his act or omission would cause harm or endanger [their] safety,” and consequently the trial court properly refused to give a jury instruction on reckless conduct.

“Simply, there was no evidence that [Dailey] committed an unlawful act not a felony.” Accordingly, it was not error for the trial court to decline to charge the jury on the cited misdemeanor offenses.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

Decided January 31, 2012

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, Trade H. Cason, Assistant District Attorney, for appellee.

       See generally Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       Dailey acknowledges that he gave a third interview, after he was again given Miranda
        warnings. During that interview, Dailey essentially repeated statements made during earlier police interviews. Because Dailey states on appeal, “This third statement is not challenged,” we do not consider the propriety of the admission of evidence thereof. Cf. State v. Kendrick, 309 Ga. App. 870, 872-877 (2) (711 SE2d 420) (2011) (considering merits of appellant’s contention that the statements he made to an investigator, albeit after the reading of the Miranda rights, were inadmissible under Missouri v. Seibert, 542 U. S. 600 (124 SC 2601, 159 LE2d 643) (2004), and State v. Pye, 282 Ga. 796 (653 SE2d 450) (2007)).

       See Stansbury v. California, 511 U. S. 318, 323 (II) (114 SC 1526, 128 LE2d 293) (1994) (“In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.”) (citation and punctuation omitted).

       See generally Robinson v. State, 278 Ga. 299, 301 (2) (602 SE2d 574) (2004) (unless a reasonable person in suspect’s situation would perceive that he was in custody, Miranda warnings are not necessary); Mayberry v. State, 267 Ga. App. 620, 622-623 (600 SE2d 703) (2004) (in resolving question of “custody,” relevant inquiry is whether a reasonable person in suspect’s position would have understood the situation to constitute restraint on freedom of movement of the degree which the law associates with formal arrest).

        Phillips v. State, 285 Ga. 213, 215 (2) (675 SE2d 1) (2009) (citations and punctuation omitted).

        Ashe v. State, 285 Ga. 359, 361 (2) (676 SE2d 194) (2009).

         Phillips, supra (citation omitted).

       See id. at 216-217 (2) (admission of other cumulative evidence rendered admission of defendant’s un-Mirandized statement to detective harmless); Frazier v. State, 278 Ga. 297, 298 (4) (602 SE2d 588) (2004) (any error in the admission of a custodial statement was harmless beyond a reasonable doubt, where defendant’s custodial statement merely repeated what he had earlier told an aunt and also admitted in his noncustodial statement to the first officer on the scene) (citing Milton v. Wainwright, 407 U. S. 371, 372-373 (92 SC 2174, 33 LE2d 1) (1972), for the principle that a constitutional error in the admission of an inadmissible confession was harmless because of other cumulative unchallenged confessions); Baez v. State, 297 Ga. App. 893, 895 (1) (678 SE2d 583) (2009) and cits. See generally Chapman v. California, 386 U. S. 18, 24 (III) (87 SC 824, 17 LE2d 705) (1967) (error of even constitutional magnitude may be harmless if, considering the entire record on appeal, the reviewing court finds beyond a reasonable doubt that the error did not contribute to the verdict); Horne v. State, 281 Ga. 799, 808-809 (5) (642 SE2d 659) (2007) (applying test set forth in Chapman, supra, and concluding that trial transcript showed that error of constitutional magnitude was harmless); Jones v. State, 265 Ga. 84, 86 (4) (453 SE2d 716) (1995) (assuming arguendo that contested statement was inadmissible hearsay and violated defendant’s right of confrontation, under test set forth in Chapman, supra, error in its admission was harmless because statement “did not contribute to the conviction inasmuch as several eyewitnesses gave similar testimony” to content of contested statement).

        Ashe, supra (citation omitted).

       OCGA § 16-11-102 (“A person is guilty of a misdemeanor when he intentionally and without legal justification points or aims a gun or pistol at another, whether the gun or pistol is loaded or unloaded.”).

       OCGA § 16-5-60 (b) (“A person who . . . endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor.”).

        Rhodes v. State, 257 Ga. 368, 369 (4) (359 SE2d 670) (1987) (citing OCGA §§ 16-5-20 (a) (2) (a person commits simple assault when he or she “[clommits an act which places another in reasonable apprehension of immediately receiving a violent injury”), 16-5-21 (a) (2) (a person commits aggravated assault when he or she “assaults .. . [w]ith a deadly weapon”)).

        Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994).

        Manzano v. State, 282 Ga. 557, 558 (2) (651 SE2d 661) (2007) (citations omitted).

       Id. (citation and punctuation omitted).

        Savage v. State, 274 Ga. 692, 695 (3) (558 SE2d 701) (2002) (citation omitted).

       Id.

        Stobbart v. State, 272 Ga. 608, 612 (3) (533 SE2d 379) (2000) (citation and punctuation omitted); see Savage, supra. Compare Manzano, supra at 558-559 (2) (evidence authorized a finding that the shooting victim did not perceive a danger of immediately receiving a violent injury, where defendant testified that he and the victim were engaged in horseplay, and both of them had believed that the pistol was unloaded and thus incapable of causing a violent injury).

        Stobbart, supra at 611 (3) (emphasis supplied).

        Guyse v. State, 286 Ga. 574, 578 (2) (690 SE2d 406) (2010) (citations and punctuation omitted).

       Id. at 579 (2) (rejecting argument that mere drunkenness rendered defendant incapable of forming intent necessary to commit aggravated assault because, where defendant’s crime would have been aggravated assault had he been sober, defendant’s voluntary intoxication did not make the crime anything less).

        Stobbart, supra, quoting OCGA § 16-5-60; see Guyse, supra; Savage, supra. Compare Bowers v. State, 177 Ga. App. 36, 39 (2) (338 SE2d 457) (1985) (finding evidence to support a charge of reckless conduct, where, although defendant admitted intentionally firing gun, he testified that, when he did so, he was engaged in target practice and was not aiming at the victim).

        Savage, supra (citation omitted).

       See id.


text:
    A11A2175.
    CHAPMAN v. CLARK et al.
    (723 SE2d 51)
   PHIPPS, Presiding Judge.

Clyde Chapman filed suit against Reliford Clark, Jr., Joyce Clark, Larry Clark, and Clark Land Development, Inc. (“CLD”), alleging, inter alia, claims for fraudulent conveyance and civil conspiracy, and seeking to recover damages awarded Chapman in a prior lawsuit against Reliford Clark and Joyce Clark. In this appeal Chapman contends the trial court erred by: (1) entering a final judgment concerning Joyce Clark and Larry Clark but not concerning Reliford Clark; (2) ordering a mistrial on the jury’s unanimous and unambiguous verdict, and ordering a mistrial with respect to Reliford Clark; and (3) issuing a pretrial order (concerning Reliford Clark only) which, among other things, allowed for the admission of certain evidence during a retrial, and precluded Chapman from pursuing particular claims. Reliford Clark has moved to dismiss this appeal against him. For the reasons herein, we grant Reliford Clark’s motion to dismiss this appeal against him (which concerns Chapman’s second and third enumerations of error) and we affirm the trial court’s judgment concerning Joyce Clark and Larry Clark (which concerns Chapman’s first enumeration of error).

According to the complaint, after Chapman was awarded damages in the prior lawsuit, Reliford Clark conveyed his ownership interest in real and personal property to Joyce Clark and Larry Clark, leaving Reliford Clark virtually insolvent. Chapman alleged that during the pendency of the civil action, Reliford Clark organized CLD, which he used to pay personal expenses, and that therefore “[t]he corporate veil of Defendant CLD should be disregarded so as to hold CLD and [Reliford] Clark jointly liable. ...”

After trial, the jury returned verdicts in favor of Joyce Clark and Larry Clark with respect to claims against them; the court entered judgment on the verdicts. The jury returned a verdict against Reliford Clark as to liability on some matters and awarded money damages; but concerning the award of damages, an issue arose which the jury was unable to resolve and thus was unable to reach a verdict on claims for punitive damages as to Reliford Clark. Therefore, in June 2009, finding that “it was obvious . . . that substantial justice had not been done to [Chapman] or Defendant Reliford Clark, Jr.,” the trial court issued an order declaring a mistrial with respect to issues between Chapman and Reliford Clark.

Notwithstanding that Joyce Clark and Larry Clark were no longer parties to the dispute, on April 1, 2011, the trial court issued an amended judgment as to Joyce Clark and Larry Clark, provided that the amended judgment was a final judgment pursuant to OCGA § 9-11-54, and ordered that Chapman “shall recover nothing from Joyce Clark and . . . nothing from Larry Clark. . . .” In preparation for a retrial, on April 1, 2011, the trial court also issued an order which addressed several pretrial motions. The pretrial motions order provided, among other things, that testimony of the equitable division of property between Reliford Clark and Joyce Clark was admissible; and that Chapman could not seek to set aside certain conveyances he alleged were fraudulent.

1. Reliford Clark has moved to dismiss this direct appeal against him because this cause of action against him is pending in the trial court and because this court has previously denied interlocutory review.

The trial court’s April 2011 amended judgment as to Joyce Clark and Larry Clark stated that the court was entering a final judgment as to them:

And the Court having determined that there is no just reason for the delay in the entry of a final judgment; IT IS THE FINAL JUDGMENT, pursuant to OCGA § 9-11-54, the Plaintiff shall recover nothing from Joyce Clark and further that Plaintiff shall recover nothing from Larry Clark and that costs are cast upon Plaintiff.

Thus, the judgment regarding Joyce Clark and Larry Clark is directly appealable. But Chapman’s appeal of this final judgment regarding Joyce Clark and Larry Clark does not make appealable the order declaring a mistrial as to Reliford Clark (which concerns Chapman’s second enumeration of error) or the order on pretrial motions as to Reliford Clark (which concerns Chapman’s third enumeration of error). We dismissed Chapman’s prior direct appeal of the order declaring a mistrial because Chapman failed to follow the interlocutory appeal procedures. Additionally, pursuant to OCGA § 5-6-34 (b), Chapman previously sought interlocutory review of the order on the pretrial motions, but we declined to grant interlocutory review of that order.

Under these circumstances, the rulings involving Reliford Clark do not fall within the provisions of OCGA § 5-6-34 (d) which pertinently provide that

[wjhere an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere.

While the trial court’s April 2011 order as to Joyce Clark and Larry Clark is reviewable as a final order as to them pursuant to OCGA § 9-11-54, Chapman’s case against Reliford Clark remains pending below and neither the order on pretrial motions nor the order declaring a mistrial is appealable absent a certificate of immediate review. Therefore, this court is without jurisdiction to consider Chapman’s second and third enumerations of error, as they concern the order declaring a mistrial and the order on pretrial motions, relating only to Reliford Clark. Accordingly, Reliford Clark’s motion to dismiss this appeal against him is granted.

2. Chapman contends that the trial court erred in entering a final judgment concerning Joyce Clark and Larry Clark, but not concerning Reliford Clark. Chapman argues that it was improper for the trial court to set aside or modify the jury’s verdict concerning only Reliford Clark. Alternatively, Chapman argues that “in the event that it is deemed appropriate and necessary to set aside any portion of the verdict, the entire verdict must be set aside.” Notably, Chapman argued neither at trial nor on appeal that the jury’s verdict as to Joyce Clark and Larry Clark was erroneous or otherwise not authorized by the evidence or the law. And at trial, both before and after the verdict, Chapman opposed the court declaring a mistrial, and asked the court to accept a partial verdict in the case.

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties. . . .”

OCGA § 51-12-31 provides that where several tortfeasors are sued jointly, the jury may specify the particular damages to be recovered of each defendant. Judgment in such a case must be entered severally. Thus, the jury has the right to disregard joint and several liability and to return separate verdicts. . . .

Thus, the jury was authorized to return separate verdicts as to each defendant, and the trial court was authorized to enter judgment on the jury’s verdict. For reasons stated in Division l, we are without jurisdiction to address Chapman’s arguments that the trial court erred in declaring a mistrial as to Reliford Clark.

Decided January 31, 2012.

Alan M. Briskin, for appellant.

Breakfield & Dean, John G. Breakfield, Turner & Willis, Brett D. Turner, Alfred W. Chang, Ryan M. Reid, for appellees.

Chapman relies on Kane v. Cohen for the proposition that a verdict which fails to resolve all of the issues submitted to the jury must be set aside. But Kane does not apply. In that case the trial court entered a final judgment for the plaintiff for compensatory damages but granted a mistrial as to the issue of the amount of punitive damages only. Here, Chapman urged the court to accept a partial jury verdict, and the trial court did so on issues submitted to the jury involving Joyce Clark and Larry Clark, and granted a mistrial with regard to issues of liability as well as damages concerning Reliford Clark. Therefore, Chapman’s argument is without merit.

Judgment affirmed and appeal dismissed in part.

Andrews and Blackwell, JJ., concur.

       The verdict made no mention of any claims or disposition of liability or damages concerning CLD.

       OCGA § 9-11-54 (b) pertinently provides:
      When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. . . .
      See also Cherry v. Hersch, 193 Ga. App. 471, 472 (1) (388 SE2d 64) (1989) (final judgment order which did not recite the exact language of OCGA § 9-11-54 (b) nonetheless expressed a clear intent by the trial judge that the order be final, and therefore appealable, as to two of four defendants).

       See Camp v. Coweta County, 271 Ga. App. 349, 350-351 (1) (609 SE2d 695) (2005), reversed on other grounds, 280 Ga. App. 852 (635 SE2d 234) (2006).

        Chapman v. Clark, Case No. A09A2345 (decided February 17, 2010). See Nickles v. State, 86 Ga. App. 284 (1) (71 SE2d 574) (1952) (the grant of a mistrial terminates a trial but is not a final decision from which a right of direct appeal lies).

       OCGA § 5-6-34 (b) allows for an appeal from an order not otherwise directly appealable upon issuance of a certificate of immediate review and within the appellate court’s discretion permitting the appeal.

        Chapman v. Clark, Case No. A11I0223 (denied May 13, 2011).

        Camp, supra at 351.

       Id.

       See Camp, supra (because a trial court declined to issue a certificate of immediate review to a former inmate in the inmate’s request to appeal the court’s grant of county defendants’ motion to open a default pursuant to OCGA § 5-6-34 (b), that issue remained pending below and, accordingly, the appellate court had no jurisdiction to review that matter under OCGA § 9-11-54, of appeal from final order dismissing state defendants); see also Financial Investment Group v. Cornelison, 238 Ga. App. 223 (516 SE2d 844) (1999); Knowles v. Old Spartan Life Ins. Co., 213 Ga. App. 204, 205 (2) (444 SE2d 136) (1994).

       See Camp, supra.

       OCGA § 9-11-54 (b).

        U. S. Fidelity &c. Co. v. Paul Assocs., 230 Ga. App. 243, 248 (3) (496 SE2d 283) (1998) (citations and punctuation omitted).

       Id.; OCGA § 51-12-31.

        Jefferson v. Ross, 250 Ga. 817, 818 (301 SE2d 268) (1983).

       Supra.

       182 Ga. App. 485 (356 SE2d 94) (1987).

       Id. at 486 (1).

       Id.


text:
    A11A2239.
    BAILEY v. THE STATE.
    (723 SE2d 55)
   Adams, Judge.

A grand jury indicted Antonio Orlando Bailey on two counts of aggravated battery and one count each of aggravated assault, battery, criminal damage to property and obstructing an officer stemming from an April 18, 2010 attack upon Brittany Smith and her mother, Sharon Glover. On November 30, 2010, Bailey entered a negotiated plea of guilty to one count each of aggravated assault, aggravated battery, and battery and was sentenced to fourteen years, with eight years of imprisonment. The remaining charges were dismissed. Bailey filed a timely, pro se motion to withdraw his guilty plea on December 8, 2010, alleging ineffective assistance of counsel. Bailey was assigned new counsel, who represented him at the hearing on his motion to withdraw. The trial court subsequently denied the motion, and Bailey appeals.

“After sentence is pronounced, whether to allow the withdrawal of a guilty plea lies within the trial court’s sound discretion, and we review the trial court’s decision for manifest abuse of that discretion.” (Citation and footnote omitted.) Weeks v. State, 260 Ga. App. 129 (578 SE2d 910) (2003). Moreover, “[o]n a motion to withdraw a guilty plea, the trial court is the final arbiter of all factual issues raised by the evidence.” (Citation and punctuation omitted.) Caudell v. State, 262 Ga. App. 44, 45 (1) (584 SE2d 649) (2003). Because Bailey based his motion on a claim of ineffective assistance of counsel, the trial court was required to apply the two-prong test set out in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), which asks whether counsel’s performance was deficient and, if so, whether this deficiency was prejudicial to the defendant. Although the State generally bears the burden of establishing the validity of a plea on a motion to withdraw, Bailey bears the burden in this case of establishing his claim of ineffective assistance of counsel. Brown v. State, 280 Ga. App. 767, 771 (1) (634 SE2d 875) (2006) (on motion to withdraw based upon ineffective assistance of counsel, “defendant bears the burden of showing that, had it not been for his attorney’s deficient representation, a reasonable probability exists that he would have insisted on a trial”). “Defendant carries an even heavier burden on appeal because the trial court’s finding on [the issue of ineffective assistance of counsel] will not be disturbed absent a showing of clear error.” (Citation omitted.) McCloud v. State, 240 Ga. App. 335 (1) (525 SE2d 701) (1999).

Bailey was represented by attorney Kevin Schumaker of the public defender’s office when he entered his guilty plea. The trial court reviewed the terms of the negotiated plea with Bailey at that time, and the potential sentences for the charges against him if he chose to go to trial. In response, Bailey initially indicated that he wanted to go forward with a jury trial but later stated that he was unhappy with his attorney’s pre-trial preparation. Subsequently, Bailey agreed to the negotiated plea. The trial court then reviewed the facts supporting the charges, which Bailey affirmed, and confirmed that Bailey had discussed the charges and his potential defenses with Schumaker. Bailey also signed a statement detailing the rights he was relinquishing by entering his guilty plea, and the trial court confirmed that Schumaker reviewed the form with Bailey and that Bailey understood it. The court invited any questions or comments from Bailey about the form and/or the plea, but Bailey indicated that he had none.

In his pro se motion to withdraw his guilty plea, however, Bailey asserted that he was forced into taking the plea and did not have the opportunity to review his indictment or prepare for trial with Schumaker. Bailey stated that Schumaker was ineffective in failing to make an adequate investigation of the case or to contact him prior to the day of trial. Bailey asserted the same arguments at the motion hearing, but also testified that the State had made a prior plea offer of a ten-year sentence with three years to serve. Bailey said he learned about this offer in May 2010 from Ken Martin, whom Bailey at first described as an investigator for the public defender’s office, but whom he later indicated was the lawyer assigned to him for his commitment hearing. Bailey told Martin that he was not ready to accept the State’s offer at that time because he wanted to speak with his “appointed lawyer,” but at that time, no lawyer had yet been assigned to represent him at trial.

Schumaker was later assigned to represent Bailey. Bailey said that Schumaker never responded to his repeated attempts to contact him regarding the May 2010 plea offer. Although Bailey said that he did not see Schumaker until he entered his guilty plea on November 30, 2010, he also acknowledged that he spoke with Schumaker on at least one other occasion, at his October 2010 arraignment, where they discussed the State’s plea offer. Bailey said Schumaker “misled” him at that point by indicating that the ten-year sentence offer was still available, even though the prosecutor indicated at the arraignment that the State was now offering a longer sentence. Bailey argued at the motion hearing that he should have been allowed to withdraw his guilty plea based upon his trial counsel’s lack of contact, preparedness, and availability to discuss the earlier plea, which he asserted was ineffective assistance of counsel.

After hearing Bailey’s testimony and the arguments of counsel, the trial court found that Bailey “was properly advised of his constitutional rights and that [he] freely and voluntarily entered his plea of guilty to these charges.” The court further found “that there was no ineffective assistance of counsel, that counsel announced ready for trial, was prepared to go forward with trial” and that Bailey failed to establish the first prong of an ineffective assistance of counsel claim under Strickland v. Washington. The trial court accordingly denied Bailey’s motion to withdraw his plea.

On appeal, Bailey cites only Schumaker’s unavailability to discuss the May 2010 plea offer as the basis for his claim of ineffective assistance of counsel. In order to establish his claim of ineffective assistance of counsel

[i]n the context of the plea bargain process, the defendant must demonstrate that, but for counsel’s deficient performance, there is a reasonable probability that he would have accepted the State’s plea offer. The requisite reasonable probability standard demands a showing that there is some indication that the defendant was amenable to the offer made by the state.

(Citations and punctuation omitted.) Johnson v. State, 289 Ga. 532, 535 (712 SE2d 811) (2011). See also Brown v. State, 280 Ga. App. at 771 (1).

Here, Bailey made no mention of any prior plea offer at the time he accepted the State’s November 2010 offer of fourteen years, with eight to serve. Rather, he represented to the trial court that he had discussed the November 2010 plea offer with his attorney, that he fully understood that offer and that he wanted to accept it. Additionally, Bailey failed to mention the earlier offer in his initial motion to withdraw that plea. In fact, the record reflects that the first time Bailey mentioned such an offer was in his testimony at the hearing on his motion to withdraw. The State apparently had no notice of this claim prior to the hearing and presented no evidence in response. Accordingly, Bailey’s testimony is the only evidence of the May 2010 offer. Nevertheless, the trial court was not required to accept as true Bailey’s claim that he would not have accepted the November 2010 offer if he had discussed the earlier offer with Schumaker. See Norwood v. State, 311 Ga. App. 815, 818 (717 SE2d 316) (2011) (issues of credibility on a motion to withdraw a guilty plea are for the trial court to resolve); Bielen v. State, 265 Ga. App. 865, 868 (1) (595 SE2d 543) (2004) (court not required to accept as true defendant’s claim that he would not have pled guilty but for attorney’s deficiency); McCloud v. State, 240 Ga. App. at 336 (2).

We find no clear error in the trial court’s finding that Bailey’s testimony was insufficient to establish his claim of ineffective assistance of counsel. Schumaker had not yet been appointed to the case when Bailey learned from Ken Martin that the State was offering a plea deal of ten years, with three to serve. Although Martin apparently was an attorney, Bailey told him that he was not ready to accept the State’s offer. Thus, Bailey chose not to rely upon any advice Martin could have offered in connection with the plea and chose not to accept the offer at that time. The record is silent, however, as to whether the State held the offer open and thus whether the offer even existed when the public defender’s office subsequently assigned Schumaker to represent Bailey. It is well settled that the State may withdraw an unaccepted plea offer at any time unless it has agreed otherwise. Scott v. State, 302 Ga. App. 111, 115 (690 SE2d 242) (2010). Without demonstrating whether or not the State’s initial offer remained in effect, Bailey cannot establish that Schumaker acted unreasonably in failing to discuss the matter with him, nor can he demonstrate how that failure prejudiced him. And although Bailey asserted that Schumaker misled him about the status of the ten-year offer at the October 2010 arraignment, he never testified that he was ready to accept that offer at that time, or, indeed, at any time. Even as late as November 30, 2010, Bailey evidenced an intent to go to trial, although he later changed his mind. Thus, Bailey cannot show how he was prejudiced by any such misleading statement by Schumaker. Further, Bailey does not contest Schumaker’s trial preparation on appeal and has not shown that Schumaker wrongly advised him concerning the terms of the negotiated plea that he accepted on November 30, or that his counsel fell below an objective standard of reasonableness in representing him at the plea hearing. Accordingly, we cannot say it was clear error for the trial court to deny Bailey’s motion to withdraw.

This case is distinguishable from Johnson v. State, upon which Bailey relies. In that case, the evidence showed that the public defender appointed to represent Johnson at trial was aware of an outstanding plea offer from the State but failed to discuss the matter with Johnson until after the attorney should have known that the offer had expired. Johnson, 289 Ga. at 535. Moreover, the attorney failed to inform Johnson in a timely fashion that if he rejected the plea offer, he faced a mandatory life sentence if convicted and further failed to investigate Johnson’s claimed alibi defense before the offer expired. When the attorney investigated, he could find no witnesses to support Johnson’s claim of alibi. Id. at 533-534. The Supreme Court of Georgia found that Johnson had not received reasonable representation during the plea bargaining process, and thus that Johnson had established the first prong of the Strickland test. Id. at 534. Here, in contrast, Bailey failed to even establish that the May 2010 plea offer was open at the time Schumaker took over his case. Further, Schumaker fully communicated the November 30, 2010 plea offer that Bailey eventually accepted. Accordingly, Bailey failed to establish ineffective counsel in connection with the plea bargaining process and thus Bailey failed to meet the first Strickland prong.

Decided January 31, 2012.

Kenneth D. Kondritzer, for appellant.

Tracy Graham-Law son, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

The Johnson case is further distinguishable because the Supreme Court found that Johnson also had established the second Strickland prong. The evidence showed that once Johnson was aware of the potential mandatory life sentence and of the problems with his defense, he asked his attorney to contact the State about offering a counteroffer to the State’s plea. And when the State rejected Johnson’s counteroffer, he immediately instructed his counsel to communicate his acceptance of the State’s original offer, but it had expired. The Supreme Court found that this evidence showed that once Johnson was informed of all the pertinent information, he was ready to accept the State’s offer and this was sufficient to establish a reasonable probability that Johnson would have accepted the State’s offer, but for his counsel’s deficiencies. Id. at 535-536. Here, Bailey failed to establish any prejudice arising from his counsel’s purported deficiencies because he never indicated any intention to accept the May 2010 offer when he thought it was open.

Judgment affirmed.

Barnes, B J., and Blackwell, J., concur.

       Over four months after Bailey appealed the trial court’s ruling, the State filed a motion, pursuant to OCGA § 5-6-41 (f), to amend the trial court record with affidavits presenting new evidence regarding the attorneys from the public defender’s office and prior plea negotiations in this case. The trial court granted the motion and the appellate record was supplemented with these filings. But we know of no authority authorizing us to consider assertions of fact or evidence that were not before the trial court at the time it made its ruling, especially where such evidence was not tendered until after the notice of appeal was filed. See generally Demetrios v. State, 246 Ga. App. 506, 510 (3), n. 14 (541 SE2d 83) (2000) (“It is an ancient and honored tenet of law that we do not take evidence from the briefs of parties, we do not get evidence from outside the record, and we do not accept assertions of fact or evidence which were not before the trial court. [Cit.]”) (punctuation omitted). Accordingly, we will not consider the State’s post-appeal evidence.

       The prosecutor’s office had a standing policy of holding offers open only until the docket call. Johnson’s attorney had recently been employed in the prosecutor’s office, and thus was aware of this policy, but he failed to discuss the plea offer until after the docket call. Johnson, 289 Ga. at 535.