author: PHIPPS, Presiding Judge.

text:
    A12A1156.
    WILSON v. THE STATE.
    (733 SE2d 365)
   PHIPPS, Presiding Judge.

After a bench trial on stipulated facts, Andrew Wilson was convicted of possession of less than one ounce of marijuana. He appeals his conviction, contending that the court erred by denying his motion to suppress because police officers unlawfully stopped and searched his vehicle, and unlawfully prolonged his detention. For the reasons that follow, we affirm.

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility . . . must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

Construing it most favorably to support the trial court’s findings and judgment, the evidence showed the following. On March 11, 2011, a special agent with the narcotics team of the sheriff’s office was conducting surveillance of a residence in connection with the possible sale of marijuana from the residence. As the agent watched, a vehicle arrived at the residence. The driver got out of the vehicle and walked up the driveway; about 30 seconds later, the driver drove away in the vehicle. Associating the driver’s behavior with “possible narcotic activity,” the agent began following the vehicle. When the agent was “pretty much immediately behind” the vehicle, he saw the driver move into a turning lane and then turn, effecting both moves without signaling. The agent called a lieutenant with the city police department who was in the area and asked him to stop the vehicle for having changed lanes and turned without signaling. The agent told the lieutenant that “they” had been involved in a drug investigation.

The lieutenant saw the vehicle and began following it. He saw that the driver was not wearing a seat belt. Based on the suspected seat-belt and signal violations, the lieutenant activated his emergency equipment and initiated a stop. Wilson was driving the vehicle, and there were two passengers inside.

The lieutenant told Wilson that he had stopped him for the seat-belt and signal violations. Wilson admitted to the lieutenant that he had not been wearing a seat belt, but explained that he did not think he needed to use a turn signal under the circumstances.

The lieutenant asked Wilson for his driver’s license and insurance information. He noticed that Wilson was very nervous and his hands were shaking so badly that he “was having difficulty actually manipulating his ... his wallet to get anything out.” He also noticed “a pretty strong” odor coming out of the vehicle, such as cologne or “some sort of... a cover-up odor,” that seemed to be mixed with a faint odor of marijuana. He asked Wilson to step out of the vehicle. The lieutenant asked Wilson “about marijuana in the car” or about “recent smoking in the vehicle.” The lieutenant testified that Wilson stated that he had “a history of smoking marijuana . . . but there was no marijuana in the vehicle currently.” When asked if he would consent to a search of the vehicle, Wilson declined.

Knowing that a “K9” unit was nearby, the lieutenant asked the unit to respond while he continued his investigation. The lieutenant estimated that the canine unit (the narcotic detection dog and the officer) arrived “three or four minutes” after the request was made; the trial court found, after viewing a videotape of the traffic stop, that three minutes elapsed between the time the stop began and the time the lieutenant requested the canine unit, and seven minutes elapsed between the time of the request and the time the canine unit arrived.

The special agent was watching from across the street when the canine unit arrived at the scene of the traffic stop. The special agent watched the narcotic detection dog “go around” Wilson’s vehicle; he testified that he was told that there was “a positive result for — positive detection from the K9,” and the vehicle was searched. The search revealed less than one ounce of marijuana. Wilson was issued citations for possession of marijuana, seat-belt, and turn signal violations. The seat-belt and signal citations were dismissed prior to trial.

1. Wilson contends that the trial court erred in denying his motion to suppress because the traffic stop was illegal. He asserts that the stop could not be justified based on his alleged violation of OCGA § 40-6-123, as there was no evidence that the movement of his vehicle into the dedicated turn lane without a signal was unsafe. This argument presents no basis for reversal.

“Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” “The stop of a vehicle is authorized if the officer observes a traffic offense.” Probable cause may be established based on the collective knowledge of the communicating officers.

Wilson is mistaken in focusing solely on whether he was required to use a turn signal before making the lane change, inasmuch as the lieutenant testified that he initiated the stop based also on his observation that Wilson was not wearing a seat belt. The seat-belt violation alone authorized a stop of the vehicle. Because there existed a reasonable articulable suspicion for a brief investigatory stop of the vehicle, the trial court did not err in denying the motion to suppress on the ground asserted.

2. Wilson contends the trial court erred in denying his motion to suppress when police unlawfully extended the duration of the traffic stop. According to Wilson, “[t]he prolonged detention was not narrowly tailored to its underlying justification,” which was to issue citations or warnings for the alleged traffic violations. The contention is without merit.

(b) A signal of intention to turn right or left or change lanes when required shall be given continuously for a time sufficient to alert the driver of a vehicle proceeding from the rear in the same direction or a driver of a vehicle approaching from the opposite direction.
The investigative stop of a vehicle cannot be unreasonably prolonged beyond the time required to fulfill the purpose of the stop----Once an officer’s purpose for conducting a traffic stop has been fulfilled, the continued detention of the vehicle and its occupants is constitutional only if the officer has a reasonable articulable suspicion of other illegal activity or when the valid traffic stop has de-escalated into a consensual encounter.

It is not clear from the record precisely how long the stop was extended beyond the time required for the officer to fulfill the purpose of the traffic stop. The trial court found, however, that ten minutes had elapsed between the time the stop was initiated and the time the narcotic detection dog arrived and searched the vehicle. The record also shows that the lieutenant requested the canine unit while he continued his investigation, and that Wilson was issued citations for the alleged traffic violations. Thus, it is clear that the period of detention preceding the arrival of and search by the canine unit was minimal.

In any event, the evidence gave rise to a reasonable articulable suspicion of other illegal activity. When the lieutenant approached the vehicle, which had been followed after leaving a house under surveillance for possible marijuana sales, he smelled marijuana and saw that Wilson was very nervous; and Wilson admitted to the lieutenant that he had a history of smoking marijuana. Considering the totality of the circumstances, the trial court did not err in concluding that the minimal delay was justified.

3. Wilson contends the trial court erred in denying his motion to suppress when officers lacked probable cause to search his vehicle. Specifically, he argues that there was no evidence to establish probable cause for officers to believe there was contraband in the vehicle, and that the special agent’s testimony regarding what he was told about the narcotic detection dog’s response was hearsay.

Decided October 17, 2012.

Cook & Lundy, B. Thomas Cook, Jr., Lubin C. An, for appellant.

The existence of probable cause is determined by whether, given all the circumstances . . ., including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Probable cause to search an automobile exists when the facts and circumstances before the officer are such as would lead a reasonably discreet and prudent man to believe that the contents of the vehicle offend the law. Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction.

Pretermitting the issue of whether the special agent’s testimony regarding what he was told about the dog’s behavior was admissible at the suppression hearing, Wilson’s argument is without merit.

In addition to the challenged testimony of the special agent, there was evidence that the agent had watched the narcotic detection dog walk around the vehicle before the search, the lieutenant had smelled marijuana emanating from the vehicle, the vehicle had just left a residence under surveillance for possible marijuana sales, and Wilson admitted to the lieutenant that he had a history of smoking marijuana. Based on the totality of the circumstances, law enforcement officers had probable cause to believe that there was marijuana in the vehicle. The trial court did not err in denying Wilson’s motion to suppress.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

JamieK. Inagawa, Solicitor-General, Joseph B. Myers, Jr., Assistant Solicitor-General, for appellee.

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994) (citations, punctuation and emphasis omitted).

       See Miller v. State, 288 Ga. 286, 288 (1) (702 SE2d 888) (2010).

       Regarding our references to evidence from the trial, see generally Bell v. State, 291 Ga. App. 169, 171 (3), n. 2 (661 SE2d 207) (2008) (in reviewing the denial of a motion to suppress, this court considers all the evidence, including evidence introduced at trial and at the hearing on the motion to suppress).

       Defense counsel objected, stating: “I will object to hearsay as far as the positives, as far as the dog.” The court sustained the objection.

       See OCGA § 40-6-123, which pertinently provides:
      (a) No person shall. .. turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or change lanes or move right or left upon a roadway unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate and timely signal in the manner provided in this Code section.

        Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994) (citation and punctuation omitted).

        Rowe v. State, 314 Ga. App. 747, 749 (1) (725 SE2d 861) (2012) (citation omitted); see Chamberlain v. State, 300 Ga. App. 79, 80 (684 SE2d 134) (2009).

        Bell, supra at 171-172 (3) (probable cause to stop a vehicle and to make a warrantless arrest may be established based on the collective knowledge of the communicating officers; arresting officers did not lack probable cause to stop vehicle and arrest suspect because they acted in part on a call from another officer who had information from an informant not conveyed to the arresting officers).

       See State v. Reddy, 236 Ga. App. 106, 108 (1) (a) (511 SE2d 530) (1999) (traffic stop based on defendant’s turn without signaling as a violation of OCGA § 40-6-123 was not unlawful, because officer’s vehicle was five to seven feet behind defendant’s vehicle, “well within the ambit of [OCGA § 40-6-123]’s ‘zone of reasonable safety,’ when such signals are required”).

        Schramm v. State, 286 Ga. App. 156, 158-159 (4) (648 SE2d 392) (2007); OCGA § 40-8-76.1.

       See Hughes v. State, 293 Ga. App. 404, 406 (1) (667 SE2d 163) (2008); see Reddy, supra.

        Rowe, supra at 750-751 (2) (a), (b) (citation and punctuation omitted).

       See Jones v. State, 259 Ga. App. 849, 851 (578 SE2d 562) (2003).

       See Wilson v. State, 306 Ga. App. 286, 289 (2) (b) (702 SE2d 2) (2010); Boyd v. State, 300 Ga. App. 455, 457-458 (1) (685 SE2d 319) (2009); Richbow v. State, 293 Ga. App. 556, 559-560 (667 SE2d 418) (2008); State v. Whitt, 277 Ga. App. 49, 52-53 (625 SE2d 418) (2005); State v. Williams, 264 Ga. App. 199, 203-205 (590 SE2d 151) (2003).

        Dawson v. State, 238 Ga. App. 263, 265 (1) (518 SE2d 477) (1999) (citations and punctuation omitted).

        State v. Menezes, 286 Ga. App. 280, 283 (2) (648 SE2d 741) (2007) (citations and punctuation omitted).

       See McDaniel v. State, 263 Ga. App. 625, 627 (1) (588 SE2d 812) (2003) (“[A]t a suppression hearing, unlike most trials, the conduct and motives of the officers are at issue, and the court must look to the information available to the officer, including hearsay, to determine if probable cause existed. Accordingly, the trial judge may admit hearsay testimony at the hearing, giving it such weight and credit as he deems proper, although such evidence may not be admissible at trial.”).

       See generally Menezes, supra; Dawson, supra at 268 (1).

       See Menezes, supra; Dawson, supra.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A12A1468.
    In the Interest of E. E. B. W., a child.
    (733 SE2d 369)
   Andrews, Judge.

At issue is whether the Fulton County Juvenile Court properly exercised subject matter jurisdiction to terminate the parental rights of the adoptive parents of a minor child born in and a citizen of Zambia, but who, at the time of the termination proceedings, had lived in Fulton County for at least six consecutive months with persons acting as her parents. On appeal from the order terminating their parental rights, the adoptive parents contest only the juvenile court’s subj ect matter jurisdiction—they do not claim that the Court lacked personal jurisdiction over them or the child, nor do they claim that the evidence introduced at the termination proceeding was insufficient under OCGA § 15-11-94 to support termination of their parental rights. We find that the juvenile court properly exercised subject matter jurisdiction over the termination proceedings pursuant to OCGA § 15-11-28 and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (OCGA § 19-9-40 et seq.). Accordingly, we affirm the Court’s order terminating parental rights.

The child was born in Zambia in June 1997 and was almost 14 years old at the time of the June 2011 termination order. Orphaned at a young age, the child lived at an orphanage in Zambia and suffered from extensive facial deformities after a tumor caused by measles was removed from her face. The orphanage sought medical treatment for the child and in 2004 arranged for a medical charity, Childspring International, to sponsor the child’s travel to Atlanta, Georgia to receive surgical and other medical treatment to correct her facial deformities. Pursuant to this arrangement, Childspring placed the child with a host family where the child has resided in Fulton County since 2005 while undergoing multiple surgeries and other medical treatment. Additional surgery is still necessary. In 2005, while the child was absent from Zambia, the married couple who operate the orphanage and claim dual United States and Zambian citizenship, adopted the then eight-year-old child in Zambia without notice or knowledge of the child. In 2006, the child made an outcry to medical providers that the couple (the adoptive parents pursuant to the Zambian adoption) and others had sexually abused her while she lived at the orphanage operated by the couple in Zambia. Based on the allegations of sexual abuse, the Fulton County Department of Family and Children Services took the child into protective custody, investigated the allegations, and brought deprivation proceedings in June 2006. The Fulton County Juvenile Court adjudicated the child deprived in July 2007 and placed the child in the legal custody of the Department, which placed the child in foster care with the same host family that the child had lived with in Fulton County since 2005. The adoptive parents appeared at the deprivation proceedings, stipulated that the child was deprived, but denied any inappropriate sexual contact with the child. Subsequent to the juvenile court’s order finding that the child was deprived, the adoptive parents did not appeal, did not complete the court-ordered plan for reunification with the child, provided no financial support for the child, and failed to maintain any contact with the Department concerning the child for three years prior to the termination of their parental rights in June 2011.

The adoptive parents contend that the UCCJEA provides that the Fulton County Juvenile Court lacked subject matter jurisdiction to consider proceedings to terminate their parental rights, and that Zambia has subject matter jurisdiction. To the contrary, we find no basis under the UCCJEA to conclude that subject matter jurisdiction in this case rests in Zambia.

A county juvenile court generally has exclusive original jurisdiction over child deprivation proceedings and subsequent termination of parental rights proceedings concerning a child present within the county. OCGA §§ 15-11-28; 15-11-29 (a). With respect to interstate child custody disputes, the jurisdictional rules of the UCCJEA also apply to “child custody determinationjs]” made in a wide range of “child custody proceeding[s]” defined to include not only “a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue,” but also “a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from family violence, in which the issue may appear.” OCGA § 19-9-41 (3), (4). Accordingly, jurisdictional rules of the UCCJEA apply to both child deprivation proceedings in which the issue of “neglect” or “abuse” appears, and “termination of parental rights” proceedings. Id. The UCCJEA does not, however, govern adoption proceedings. OCGA § 19-9-42. Moreover, under the UCCJEA, “a foreign nation is treated in the same manner as would be a sister state of the United States [and a] foreign child custody determination must be enforced if it was made ‘under factual circumstances in substantial conformity with the jurisdictional standards’of the UCCJEA. OCGA § 19-9-44 [(a),] (b).” (Citation omitted.) Bellew v. Larese, 288 Ga. 495, 497-498 (706 SE2d 78) (2011). Under the UCCJEA, a state, including a foreign country, has subject matter jurisdiction to make an initial child custody determination if it is the child’s “home state” on the date the child custody proceedings are commenced. OCGA § 19-9-61 (a) (1). The child’s “home state” is defined as

the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. Aperiod of temporary absence of any of the mentioned persons is part of the period.

OCGA § 19-9-41 (7).

Because the child in the present case lived in Fulton County with persons acting as parents for at least six consecutive months before the commencement of the deprivation proceedings, Georgia was the child’s home state under the UCCJEA, and the Fulton County Juvenile Court had subject matter jurisdiction to make an initial child custody determination in the deprivation proceeding pursuant to OCGA § 19-9-61 (a) (1). Under OCGA § 19-9-62 (a) of the UCCJEA, a court which has made an initial child custody determination consistent with OCGA § 19-9-61 (a) (1) has exclusive continuing jurisdiction to modify its initial determination until:

(1) A court of this state determines that neither the child nor the child’s parents or any person acting as a parent has a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
(2) A court of this state or a court of another state determines that neither the child nor the child’s parents or any person acting as a parent presently resides in this state.

Subsequent to the initial child custody determination made in the deprivation proceedings, and through the commencement of the subsequent termination proceedings, the child and persons acting as the child’s parents continued to live in Fulton County where the child continued to receive necessary medical treatment and care for facial deformities and for psychological and emotional trauma which evidence showed resulted from sexual abuse. Accordingly, we find under OCGA § 19-9-62 that the Fulton County Juvenile Court had exclusive continuing subject matter jurisdiction to modify its initial determination in the termination proceedings.

The adoptive parents claim that the 2005 Zambian adoption order, under which they claimed parental rights in the child, was the initial child custody determination concerning the child, and provided the basis for exclusive, continuing subject matterjurisdiction in Zambia under OCGA § 19-9-62. Even though the adoption was entered in Zambia prior to the Fulton County deprivation proceedings, the UCCJEA does not apply to adoption proceedings; therefore, the adoption was not a child custody determination for purposes of establishing subject matterjurisdiction under the UCCJEA. OCGA § 19-9-42. There is nothing in the record to support the adoptive parents’ assertion that a Zambian court made a child custody determination under the UCCJEA prior to the adoption order.

Finally, we find no merit to the claim that the termination proceedings were outside the subject matterjurisdiction of the Fulton County Juvenile Court because the proceedings were actually a disguised custody dispute between the adoptive parents and the foster parents with whom the child was placed by the Department. The deprivation proceedings (from which there was no appeal) and the subsequent termination proceedings were brought by the Department based on evidence that the child was deprived, and that medical evidence showed she displayed behaviors consistent with her claim that she had been sexually abused, including fear of the adoptive parents, and resulting emotional and psychological trauma.

Judgment affirmed.

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

Decided October 17, 2012

Monica J. Hanrahan, for appellants.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Assistant Attorney General, for appellee.

Jeanney M. Kutner, Ruth F. Claiborne, Joseph H. Rosen, amici curiae.

       “Child custody determination” means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligations of an individual.
      OCGA § 19-9-41 (3).

       “[Child custody proceeding] does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under Part 3 of this article [OCGA §§ 19-9-81 thru 19-9-97].” OCGA § 19-9-41 (4).

       The same rule applies to the adoptive parents’ claim that they “re-adopted” the child in Tennessee in 2008.


author: DOYLE, Presiding Judge. BOGGS, Judge,

text:
    A12A1640.
    SHELL v. TIDEWATER FINANCE COMPANY.
    (733 SE2d 375)
   DOYLE, Presiding Judge.

Patricia Shell appeals from the grant of summary judgment to Tidewater Finance Company d/b/a Tidewater Motor Credit (“Tidewater”), in Tidewater’s suit against her on a retail installment contract to collect a deficiency from the sale of Shell’s repossessed vehicle. Shell contends that the trial court erred because a genuine issue of material fact remains as to whether Tidewater met its obligation to provide notice required by OCGA § 10-1-36 (a). Because the record contains a factual dispute as to that question, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that in 2008, Shell executed a retail installment contract financing the purchase of a 2006 Chevrolet Trailblazer, and the contract was assigned to Tidewater. After Shell defaulted on her payment obligation, Tidewater repossessed the vehicle in September 2010 and sent via certified mail a notice to Shell informing her of the repossession and her right to redeem the vehicle. The vehicle, which was in damaged condition, was sold at auction for $2,500.

After the auction, Tidewater filed a complaint against Shell to recover the outstanding principal and interest remaining after applying the $2,500 received at auction. Shell answered and denied liability. Tidewater moved for summary judgment, supporting its motion with a Tidewater employee’s affidavit attesting to the amount of debt, repossession, notice to Shell, and auction. Shell opposed the motion and filed an affidavit supporting her response. The trial court granted the motion, and Shell now appeals.

Shell contends that the trial court erred because the record contains issues of fact as to whether Tidewater sent her notice to the correct address as required by OCGA § 10-1-36 (a). That subsection provides as follows, in relevant part:

When any motor vehicle has been repossessed after default . . . , the seller or holder shall not be entitled to recover a deficiency against the buyer unless within ten days after the repossession he or she forwards by registered or certified mail or statutory overnight delivery to the address of the buyer shown on the contract or later designated by the buyer a notice of the seller’s or holder’s intention to pursue a deficiency claim against the buyer. . . .

Here, the record shows that Tidewater sent its notice by certified mail to 611 Preston Park Drive, in Duluth, Georgia. Tidewater’s supporting affidavit states that this address was designated by Shell after she signed the contract. The affidavit points to no record of this designation, and if this was the sole evidence in the record of Shell’s address, it would be sufficient to support summary judgment. But Shell’s affidavit, duly notarized and filed in the trial court, states that she did not designate the Preston Park address as her address, and her actual address was on White Grass Way in Grayson, Georgia. Despite the apparent self-serving nature of the affidavit, “[w]hether that testimony is credible is not an issue that the trial court can determine on summary judgment.” On summary judgment,

[t]he opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. In summary judgment proceedings, the court is not in a position to weigh the evidence or determine its credibility. Where the facts alleged in the record create a conflict in the evidence, summary judgment is precluded.

In light of the conflict in the record as to whether Tidewater complied with the requirement under OCGA § 10-1-36 (a) to mail a notice to Shell’s designated address (or the address in the contract), the trial court erred by granting summary judgment to Tidewater.

Judgment reversed.

Andrews and Boggs, JJ., concur and concur specially.

BOGGS, Judge,

concurring specially.

I agree that, under the facts as presented in the minimal record before us, the trial court erred in granting summary judgment. But I write to point out that the result here is limited to these facts and has no general application.

In the past, we have held that an issue of fact as to notice was created when the borrower presented evidence that a new address was designated, but the lender mailed the notice to the former address. Brack Rowe Chevrolet v. Walls, 201 Ga.App. 822, 825 (2) (412 SE2d 603) (1991); Kight v. Ford Motor Credit Co., 313 Ga. App. 261, 262 (721 SE2d 204) (2011). This case presents the opposite situation: the lender mailed the notice to a new address which it contends the borrower designated, but the borrower denies having designated the new address.

Through an affidavit provided by its legal manager, Tidewater states baldly that Shell designated the Duluth address. In an opposing affidavit, Shell just as baldly denies it. No other evidence was presented by either party. Ordinarily, Shell’s conclusory allegation and denial would be insufficient to withstand summary judgment; however, Tidewater presented absolutely no evidence to the trial court tending to demonstrate how it came to believe that Shell lived at the Duluth address. Even though Tidewater need not necessarily present a written designation from Shell, it must produce some evidence opposing her affidavit.

It is clear from the cases construing OCGA § 10-1-36 that a “designation” need not be in writing or even an explicit statement of intent by the borrower: it may be made by course of conduct. See Veitch v. Nat. Bank of Ga., 159 Ga. App. 473, 473-474 (283 SE2d 686) (1981) (printed address on borrower’s payment check can be “designated address”); Versey v. Citizens Trust Bank, 306 Ga. App. 479, 481 (1) (702 SE2d 479) (2010) (new address “designated by the buyer” when undisputed that borrowers lived there, were served with complaint there, and car repossessed there). But here, no documents, checks, repossession records, computer records or other evidence were presented to support Tidewater’s averment that Shell designated the Duluth address. Equally noteworthy, Shell presented no evidence to support her opposing statement.

The holding here should not be construed to allow a bare denial of “designation” — a legal term of art —• to forestall summary judgment when specific facts supporting a designation are presented. The purpose of OCGA § 10-1-36 is to give notice to the borrower of the available remedies in the event of repossession. If we accept at face value Shell’s argument that she did not designate the Duluth address, then Tidewater would have been within its rights to mail the notice to the original Michigan address. We know this would not have served to provide notice to Shell because, by her own affidavit, she was living in Georgia. Moreover, from Shell’s affidavit, she apparently never notified Tidewater of her new Grayson address. While not contractually obligated to notify Tidewater of any new address, Shell should not be permitted to game the system by baldly denying having designated a new address when it appears that she moved and failed to notify Tidewater. Shell’s circular argument is illogical and untenable. However, if no facts and circumstances supporting a designation are presented by Tidewater to the court below, we are constrained to rule, on the minimal evidence presented, that a genuine issue of fact remains as to notice.

For these reasons, I specially concur.

I am authorized to state that Judge Andrews joins in this special concurrence.

Decided October 17, 2012.

William R. Carlisle, for appellant.

Charles T. Day III, for appellee.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       On appeal, Shell contends that issues of fact remain as to the identity of assignee, because the assignment was to Tidewater Motor Credit. Nevertheless, the undisputed record shows that Tidewater Motor Credit was the “d/b/a” name of Tidewater Finance Company. Thus, this argument is without merit. Cf. Wilson Marine Sales &c. v. Fireman’s Fund Ins. Co., 133 Ga.App. 220, 222 (1) (211 SE2d 145) (1974) (contemplating that “d/b/a” entity could be considered a real party in interest).

       (Emphasis supplied.) OCGA § 10-1-36 (a).

       The address listed for Shell in the contract was on Florence Street in Detroit, Michigan.

        Crossing Park Properties v. Archer Capital Fund, 311 Ga.App. 177, 183(2)(715SE2d444) (2011). See Peach Blossom Dev. Co. v. Lowe Elec. Supply Co., 300 Ga.App. 268, 271 (684 SE2d 398) (2009) (trial court cannot discount affidavit merely because it is self-serving).

       (Citations and punctuation omitted.) First Nat. Bank of Gainesville v. Loggins, 207 Ga. App. 814, 816-817 (429 SE2d 278) (1993).

       See Brack Rowe Chevrolet Co. v. Walls, 201 Ga. App. 822, 824 (2) (412 SE2d 603) (1991) (directed verdict was not appropriate in light of factual issues as to notice because compliance with the notice provisions of OCGA § 10-1-36 is mandatory for recovery).

       Shell’s affidavit is interesting as much for what it does not say as for what it does say: despite her claim that she failed to receive notice of her rights upon repossession, Shell does not aver that she ever designated to Tidewater her Grayson address, nor does she specifically deny that she ever lived at the Duluth address to which the notice was mailed. Moreover, it is clear from her affidavit that she no longer lived at the Michigan address on the contract.


text:
    A12A1268.
    FOWLER’S HOLDINGS, LLLP v. CLP FAMILY INVESTMENTS, L.P. et al.
    (732 SE2d 777)
   Andrews, Judge.

CLP Family Investments, L.P., and the estate of Claude L. Pennington, Sr. (“CLP”), sued Fowler’s Holdings, LLLP (“Fowler’s”), for specific performance and damages arising from the parties’ easement agreements on the parking lot of a Macon shopping center where each owned a building. CLP’s original complaint alleged that Fowler’s had failed to maintain the parking lot and had violated its promise not to create additional points of entry to the lot; its amended complaints added claims for rescission, nominal damages, and attorney fees. After a bench trial, the court awarded CLP $120,000 in nominal damages and $55,000 in attorney fees. On appeal, Fowler’s argues that the award of nominal damages was erroneous as a matter of law and that the fee award was not supported by the evidence. We agree with the first of these contentions and therefore affirm in part and reverse in part.

1. (a) According to CLP’s own account of the proceedings below, it attempted to show that as a result of Fowler’s breaches, it incurred damages in the amounts of (a) $215,000 for the proposed amount of a tenant’s renewed lease minus a reduction in both term and amount caused by the poor condition of the parking lot; (b) $225,000 for the cost of fixing the parking lot; (c) $22,000 for the cost of replacing the parking lot lighting; and (d) $33,490 for the decrease in the property’s value caused by heavier traffic as a result of additional and unauthorized entryways made to the lot. By this account, then, CLP’s claimed damages, some portion of which it admits were not proved with enough specificity to justify an award of actual damages, amounting to approximately $595,000. Although the trial court found that “the damages suffered by [CLP] are not trivial but are substantial,” it awarded $120,000 as nominal rather than actual damages.

In its seminal 1901 decision on nominal damages, the Supreme Court of Georgia construed the term as one “purely relative, [carrying] with it no suggestion of certainty as to amount,” and also as “a trivial sum awarded where a mere breach of duty or infraction of right is shown, with no serious loss sustained.” (Punctuation omitted.) Sellers v. Mann, 113 Ga. 643, 643-644 (39 SE 11) (1901). The Court continued:

It is apparent that this “trivial sum” might, according to the circumstances of each particular case, vary almost indefinitely. In some cases a very small amount might constitute the trivial sum contemplated by the term “nominal damages;” in others a much larger amount might measure down to the same standard of triviality. It would depend largely upon the vastness of the amount involved what sum would be considered trivial.

(Emphasis supplied.) Id. at 644. The following year, our Supreme Court also noted that nominal damages

are not given as compensation for the breach of a contract, but simply in vindication of the right of a person who brings an action upon a good cause, but fails to prove that he has sustained any actual damage, and to prevent his being mulcted in the costs after he has established his cause of action.

(Emphasis supplied.) Foote & Davies Co. v. Malony, 115 Ga. 985, 988 (4) (42 SE 413) (1902), citing the predecessor to OCGA § 13-6-6 (where a breach of contract results in “no actual damages,” nominal damages maybe given “to cover the costs of bringing the action”); see also King v. Brock, 282 Ga. 56, 58 (646 SE2d 206) (2007) (noting sister states’ majority view of nominal damages as “a peg to hang costs on”); Ransone v. Christian, 56 Ga. 351, 357 (1876); Western Union Telegraph Co. v. Glenn, 8 Ga. App. 168, 169 (68 SE 881) (1910). As to specific awards of nominal damages, the parties have cited cases authorizing nominal damages in amounts up to $3,000, with the latter held not excessive when “viewed in conjunction with the evidence of actual damage.” Ponce de Leon Condos. v. DiGirolamo, 238 Ga. 188, 190 (3) (232 SE2d 62) (1977); see also Atlantic Coast Line R. Co. v. Stephens, 14 Ga. App. 173, 175-178 (80 SE 516) (1914); Duckworth v. Collier, 164 Ga. App. 139, 140 (3) (296 SE2d 640) (1982); First Fed. Sav. & Loan Assn. v. White, 168 Ga. App. 516, 517 (309 SE2d 858) (1983).

An award of nominal damages in the amount of $120,000 in a case in which actual damages amounted at most to five times that amount is neither absolutely nor relatively “trivial.” The parties’ dispute over fees shows that they do not consider the amount at issue there — ranging somewhere between $30,000 and $70,000 — to be trivial in itself. Compare Atlantic Coast Line R. Co., 14 Ga. App. at 176-179 (award of $150 was not excessive even when actual damages amounted to only $3.80). Likewise, an award of nominal damages amounting to approximately one-fifth of an amount of total damages claimed, the latter not itself trivial, cannot meet the “standard of triviality’ set out in longstanding Georgia law. See Sellers, 113 Ga. at 643-644; compare White, supra, 168 Ga. App. at 517 (in the absence of a transcript of the relevant hearing, an award of $3,000 in nominal damages concerning a dispute over mobile home was not excessive); Glenn, supra, 8 Ga. App. at 169-170 (award of $250 in nominal damages was not excessive in light of claim for $3,000 in actual damages).

Thus we conclude that the trial court erred when it denied Fowler’s motion for new trial as to the amount of nominal damages awarded here, and thus remand the case for a new trial on damages.

(b) In light of our reversal of the trial court’s award of nominal damages as excessive, we leave the question of whether its particular finding of fact as to the costs of repair was erroneous for any further proceedings.

2. Fowler’s also argues that the evidence did not support the trial court’s award of attorney fees under OCGA § 13-6-11. We disagree.

In order to recover attorney fees as expenses of litigation pursuant to OCGA § 13-6-11, the plaintiff must show that the defendant acted in bad faith, was stubbornly litigious, or caused the plaintiff unnecessary trouble and expense. We will affirm an award of attorney fees under OCGA § 13-6-11 if there is any evidence to support it.

(Punctuation and footnotes omitted.) Monterrey Mexican Restaurant of Wise v. Leon, 282 Ga. App. 439, 450 (6) (638 SE2d 879) (2006). Awards for fees under OCGA § 13-6-11 “must be apportioned to those attorney fees attributable to claims on which the plaintiff prevailed,” however. Id. at 453 (6); see also Savannah Yacht Corp. v. Thunderbolt Marine, 297 Ga. App. 104, 112 (4) (676 SE2d 728) (2009).

Construed in favor of the trial court’s judgment, the record shows that CLP’s complaint stated claims for breach of contract and rescission. Counsel for CLP testified that the fees charged, as reduced by the amount expended on the unsuccessful rescission claim, were “normal hourly rates,” “reasonable, necessary and appropriate,” and amounting to $32,980.39. Counsel also provided an affidavit from co-counsel explaining that he had adjusted his fees to exclude that portion expended on the rescission claim and that his rate was “reasonable” for the Middle Georgia legal market. Co-counsel also provided itemized billing statements of the fees as thus adjusted, as well as a summary yielding a total of $33,436.34. The record also shows that Fowler’s did not object to the admissibility of co-counsel’s affidavit or documents and waived cross-examination on the issue of fee apportionment.

Decided September 27, 2012

Reconsideration denied October 18, 2012.

Martin Snow, John T. McGoldrick, Jr., Stuart E. Walker, for appellant.

James, Bates, Brannan & Groover, Thomas C. James III, G. Grant Greenwood, for appellees.

We are not persuaded by Fowler’s assertion that CLP may recover fees for only one of its three theories of breach of contract because the trial court found in CLP’s favor on that theory alone. If the claim for breach of contract was successful, fees expended in pursuit of that claim are recoverable. See Ga. Dept. of Transp. v. Douglas Asphalt Co., 297 Ga. App. 470, 475 (2) (677 SE2d 699) (2009) (factfinder need not prorate fees between various aspects of a single cause of action). Nor do we agree that we are bound to reverse the award as not supported by sufficient evidence under Southern Cellular Telecom v. Banks, 209 Ga. App. 401 (433 SE2d 606) (1993). In that case, plaintiff Banks herself presented her attorneys’ time sheets and affidavits, none of which distinguished between successful and unsuccessful claims, and the defendants in that case were not given the opportunity to cross-examine counsel as to either “reasonableness and value or on the allocation of time and expenses among the various claims.” Id. at 402. Here, by contrast, the trial court had substantial evidence, including affidavits, testimony, and billing statements, concerning the proportion of fees expended on the br each-of-contract and rescission claims, and made an award within the range of the evidence before it. Fowler’s also waived any objections or cross-examination as to the apportionment of CLP’s fees. It follows that the trial court did not err when it granted CLP $55,000 in fees under OCGA § 13-6-11.

Judgment affirmed in part, reversed in part, and case remanded for a new trial on damages.

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


text:
    A12A0840.
    ORR v. THE STATE.
    (733 SE2d 378)
   PHIPPS, Presiding Judge.

Donald Todd Orr was convicted in May 2011 of two counts of reckless conduct and given two 12-month sentences to be served on probation, consecutively. Several months later, the state filed a petition to revoke Orr’s probation, alleging that Orr had violated two conditions of probation in that he had: (i) committed a new criminal offense, terroristic threat; and (ii) failed to timely pay fines, resulting in $38 in arrears. After a hearing on the petition, the trial court entered an order finding that Orr had violated both conditions, revoking the balance of his probation, imposing upon Orr confinement, and providing further: “remit the case allowing probation to FIFA the balance.” In this appeal, Orr challenges the sufficiency of the evidence and contests various other aspects of the revocation order. For reasons that follow, we vacate the revocation order and remand the case with direction.

1. Orr contends that the trial court erred by revoking his probation based (in part) upon its finding that he committed the offense of terroristic threat; Orr challenges specifically the sufficiency of the evidence. This contention is without merit.

“A court may not revoke any part of any probated or suspended sentence ... unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged.” “This court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court.”

“Pursuant to OCGA § 16-11-37 [(a)], a person makes a terroristic threat ‘when he or she threatens to commit any crime of violence . . . with the purpose of terrorizing another. . . .’ ” The state sought to show that Orr had committed the offense of terroristic threat against his wife during a telephone call between them. Since about January 2011, Orr was no longer living in the residence he had shared with his wife of 24 years. And by July 2011, Orr’s wife had learned of Orr’s new girlfriend. Orr’s wife terminated service on Orr’s cell phone, deactivated his bank card, and locked him out of a Facebook account. Upset about these actions, Orr made several telephone calls to his wife during the last week of July. The telephone call giving rise to the instant case occurred at about 11:15 p.m. on July 30, 2011. The state presented the testimony of Orr’s wife and family members, who gave the following accounts.

Orr’s wife testified that she was at home when Orr called her. Also at the residence were their two adult and one teenaged daughters, one daughter’s husband, Orr’s brother, and that brother’s wife. They were all seated around the kitchen table. During the telephone call, Orr’s wife testified, Orr was “ranting and raving,” upset because of the Facebook account. She hung up, and he immediately called her back, again “ranting and raving” about Facebook. She told him that she should have divorced him a long time ago and that, if she had, their daughter would still have her arm. (Orr’s wife explained at the revocation hearing that, during the prior Christmas holiday, Orr discharged a firearm and accidentally shot their daughter’s arm, resulting in its amputation.) Orr’s wife testified: “And then in the conversation he says, ‘Instead of — at Christmas I should have not killed myself. I should have blown your fucking head off.’And then he makes a comment, T can come home.’ ” Orr’s wife continued: “[A]fter he said he would blow my fucking head off, he said, T can come home tonight. You know that? Do you know that?’And I said, ‘Yes, Todd, I know that.’ ” Throughout that telephone call, Orr had been screaming. According to Orr’s wife, “when he said, ‘Do I need to come home,’ that meant that he could have came home.” Orr’s wife hung up again. Petrified, and believing that she and her family were at risk, she summoned police. After the responding officer left the house, the family left, too. The next day, Orr’s wife moved out of the residence.

Several of the family members who were seated around the table had overheard Orr, clearly. Orr’s brother gave the following account. Orr was complaining and fussing about being locked out of his Facebook account. Orr’s wife confronted Orr about his girlfriend, then hung up. Orr called right back, and their argument resumed. Orr’s brother recounted that eventually, “[Orr] said something about getting a divorce. And she said, Yeah. I should have divorced you a long time ago and [their daughter] would still have her arm.’ ” Orr’s brother testified that Orr then accused his wife of constantly hitting him below the belt regarding that incident, then Orr said, ‘You know at Christmas I should have blowed your head off — your F-ing off instead of trying to shoot myself.” Orr told his wife, “I’m coming home [tomorrow] night to my house.” But then Orr added, “Do I need to come home tonight? ... Do you believe me?” And Orr’s wife replied, ‘Yes, Todd.” Orr’s wife hung up, looked at Orr’s brother, and asked him, “What do I do now?” Orr’s brother testified that he looked around the room: one of the daughters was “squalling, scared to death,” and the other two also were noticeably upset. Orr’s brother advised Orr’s wife to do whatever was necessary to protect her family. She summoned the police, and after an officer responded to the scene and took reports, Orr’s wife and family members followed Orr’s brother and his wife back to their (the latter couple’s) residence for the night.

Orr’s adult daughter who had lost her arm also testified about the night of July 30. She described her father yelling throughout the phone exchanges and said that she could hear his words plainly. Her mother hung up after the Facebook rant, and Orr called again. The daughter recalled that Orr brought up the subject of divorce, and her mother responded that, had she divorced him a long time ago, she would still have her arm. Orr retorted that his wife had hit him below the belt and that, during last Christmas, instead of trying to kill himself, he should have blown her fucking head off. The daughter recalled that Orr next said, “Do you believe me? Do you not believe me? I can come home tonight.” She recalled also that her father had said to her mother that that was his house. Orr’s daughter testified, “I was upset at the fact that he said he was going to blow my mother’s head off. He made it sound very real because he said he was coming home tonight.” When her mother hung up, the police were summoned.

The state called the sergeant of the sheriff’s office who had interviewed Orr on August 2 at the sheriff’s office. The sergeant testified that Orr admitted having had a conversation with his wife about being locked out of his Facebook account, and he admitted that he had told his wife that he was coming back to the residence because it was his home, too. But Orr denied, at least initially, making any comments about wanting to harm her. However, toward the end of the interview, Orr stated that, if he had made any such statement to his wife, he did not remember doing so.

Orr did not testify, but called several witnesses, including the law enforcement officer who was dispatched to Orr’s wife’s residence, Orr’s girlfriend, and Orr’s girlfriend’s daughter. The responding officer testified about the statements made at the scene by Orr’s wife and family members.

Orr’s girlfriend testified that she was in Orr’s presence at the time he placed the telephone call at issue. She recounted that, after asking about his Facebook account, Orr said that he had decided to move back into the home, and that if his family did not want to live there with him, they could move out. She described that, during the telephone call, Orr did not raise his voice and did not threaten to shoot anyone.

Orr’s girlfriend’s daughter testified that she, too, was in Orr’s presence that evening. She overheard Orr ask someone on the telephone why he had been locked out of his Facebook account. She overheard him tell that person that he could move back if he wanted to. She testified that Orr never yelled and never said anything about blowing anyone’s head off or shooting anyone.

On appeal, Orr claims that the state’s case contained weaknesses and he cites evidentiary conflicts. In particular, Orr points out that the state adduced no recording of the telephone exchange. Orr also cites that the responding officer testified that family members reported at the scene that Orr’s wife had set her telephone to the “speaker phone” option, but at trial, Orr’s wife testified that she did not have that option set. Additionally, Orr argues that the state failed to show that he threatened to commit any crime of violence and failed to show that he intended to terrorize his wife. He asserts that the words he uttered revealed merely his wish that it had been his wife, instead of their daughter, who was shot; that there was no intended connection between that uttered wish and his statements about coming to his wife’s residence; and that the entire telephone episodes amounted only to typical mean-spirited banter between spouses contemplating divorce.

Concerning Orr’s claims of evidentiary weaknesses and conflicts, it is well settled that

any conflicts constitute issues of credibility that must be resolved by the trial court, not this court. It was the duty of the factfinder, here the superior court, to weigh the evidence, determine the credibility of witnesses, and decide whether to accept or reject evidence introduced.

While some contradictory evidence was presented regarding Orr’s statements and voice volume, the trial court was authorized to reject the testimony of Orr’s witnesses, in favor of the testimony given by the state’s witnesses. The accounts of Orr’s wife and family members — including Orr’s daughter’s testimony that “[Orr] said he was going to blow my mother’s head off. He made it sound very real because he said he was coming home tonight” — authorized the trial court to find that Orr communicated to his wife a threat to commit a crime of violence against her.

Moreover, despite Orr’s characterization of his utterances as mere banter and Orr’s assertion that his statement about shooting his wife was not related to his statements about coming to her residence that evening, the issue of whether Orr intended to terrorize his wife was a question of fact for the factfinder. As this court has held:

[T]he determination of whether a defendant has made a terroristic threat focuses solely on the conduct of the accused and [the crime] is completed when the threat is communicated to the victim with the intent to terrorize. In this regard, direct evidence that the threats were made for the purpose of terrorizing another is not necessary if the circumstances surrounding the threats are sufficient for a trier of fact to find the threats were made for such a purpose.

Here, the evidence showed that Orr called his estranged wife because he was upset by her recent actions. After she hung up on him, he immediately called her again and continued screaming, yelling, ranting, and raving so loudly that others near her could clearly discern his choice of words and tone. Having heard such, Orr’s wife and family members took seriously Orr’s collective statements and demeanor as a threat — summoning law enforcement and vacating the premises. Indeed, Orr’s heated exchange with his wife devolved to his making statements that, when taken together and in light of all the surrounding circumstances, authorized the trial court’s finding, by a preponderance of the evidence, that Orr communicated to his wife a threat of committing against her a violent crime and that he did so for the purpose of terrorizing her.

The trial court thus did not err by concluding that Orr violated a condition of probation by committing a new criminal offense, terroristic threat. The cases relied upon by Orr do not require an outcome in his favor. Accordingly, this contention provides no basis to disturb the probation revocation order.

2. Orr contests the sufficiency of the evidence supporting the trial court’s finding that he violated the condition of probation that required him to pay a fine.

The record contains no such evidence. At the outset of the probation revocation hearing, the state’s attorney and the probation officer reported to the court that no amount was outstanding. And in its brief on appeal, “[t]he state agrees that the defendant had paid the $38.00 in fines.”

What is more, as Orr points out, the revocation order provided: “remit the case allowing probation to FIFA the balance.” Yet the record does not reflect that, on or before the date of the revocation order, the trial court was presented evidence of any “balance” that was due. Nor does the state claim that the trial court was so presented any such evidence.

Given these circumstances, we vacate the order of revocation as based, in part, on a finding not supported by the evidence; we remand the case to the trial court for entry of judgment authorized by the evidence.

Decided October 18, 2012.

Terry L. Lloyd, for appellant.

J. Bradley Smith, District Attorney, James M. Knox, Robin R. Riggs, Assistant District Attorneys, for appellee.

3. Orr challénges various other aspects of the revocation order. Orr complains that the court ordered confinement until a date certain and for a set number of days. Orr also complains that the order included the language: “remit the case allowing probation to FIFA the balance.” Given our holding in Division 2, vacating the entirety of the order of revocation and remanding the case with direction, these complaints are moot.

Finally, Orr complains that the order was entered without the trial court having given him opportunity “to offer evidence in mitigation as to what was the proper consequence of any finding of a violation of probation.” However, the transcript of the revocation hearing shows that Orr and his counsel were present throughout the revocation hearing; that as part of closing argument, Orr’s attorney did propose modifying, as opposed to revoking, Orr’s probation, in the event that the court determined that Orr had violated a probationary condition; and that Orr never sought to, but was disallowed from, presenting any such mitigation evidence during the hearing. Thus, we find no basis for Orr’s complaint, and it establishes no trial court error.

Judgment vacated and case remanded with direction.

Ellington, C. J., and Dillard, J., concur.

       OCGA § 42-8-34.1 (b).

        Scott v. State, 305 Ga. App. 596 (699 SE2d 894) (2010) (citation, punctuation and footnote omitted).

        Layne v. State, 313 Ga. App. 608, 610-611 (1) (722 SE2d 351) (2012) (quoting OCGA § 16-11-37 (a)) (footnote omitted).

        Gaddis v. State, 310 Ga. App. 189, 190 (1) (712 SE2d 599) (2011) (citations and punctuation omitted).

       See Cannon v. State, 260 Ga. App. 15, 16 (579 SE2d 60) (2003) (trial court, as factfinder at probation revocation hearing, was authorized to reject testimony of defendant’s witnesses, in favor of state’s evidence).

       See Clement v. State, 309 Ga. App. 376, 379 (1) (a) (710 SE2d 590) (2011) (noting that, under its plain and ordinary meaning, the word “threat” refers to a communication, declaration, or expression of an intention to inflict harm or damage; explaining that the specific form of a terroristic threat is not important and need not take any particular form or be expressed in any particular words, and may be made by innuendo or suggestion; determining that a communication is sufficient to constitute a threat if a reasonable person could conclude that it was a threat under the circumstances).

       SeeOCGA § 16-2-6 (“Aperson will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.”); see also Layne, supra at 611 (1) (issue of intent to commit terroristic threat is a question of fact for jury); Brown v. State, 298 Ga. App. 545, 548 (680 SE2d 579) (2009) (“The intent with which one does an act... is particularly an issue for the finder of fact.”).

        Layne, supra (punctuation and footnotes omitted).

       See Shepherd v. State, 230 Ga. App. 426, 427 (496 SE2d 530) (1998) (holding that in determining defendant’s intent, jury could consider testimony that threats were taken seriously); Bostic v. State, 183 Ga. App. 430, 433 (3) (359 SE2d 201) (1987) (noting that record disclosed that the threatened persons took the threats seriously).

       See Layne, supra; Clement, supra; Bostic, supra (holding that question of defendant’s criminal intent was an issue for the factfinder’s consideration, and that the defendant was not entitled to a directed verdict of acquittal based on his argument that his threats were just “big talk”); Boone v. State, 155 Ga. App. 937, 939 (2) (274 SE2d 49) (1980) (holding that circumstances surrounding statements and actions of defendants supported jury’s finding that terroristic threats were made with the requisite intent and were not conditional).

       See Sidner v. State, 304 Ga. App. 373, 375-376 (1) (696 SE2d 398) (2010) (reversing defendant’s conviction of committing terroristic threats because there was no evidence that defendant’s threats were directed toward any particular person or that defendant intended or expected that his threats would be conveyed to any particular person; the clear and oft-repeated purpose of defendant’s threats was not to terrorize his neighbors, but rather to obtain a police response to disturbances on his block); Stephens v. State, 271 Ga. App. 509 (610 SE2d 143) (2005) (reversing conviction for terroristic threats where no evidence supported an inference that the defendant intended or expected that his written statement that he wanted to kill his supervisor, sent to the office’s personnel department to explain his desire for a transfer, would be communicated to the supervisor, and when his only purpose in making the statement was to obtain a change of employment status); Wiggins v. State, 171 Ga. App. 358, 359 (1) (319 SE2d 528) (1984) (reversing conviction where defendant made a threat to a third party unrelated to the alleged target, defendant had a history of mental illness, and the message was conditional in nature).

       See Court of Appeals Rule 25 (b) (1) (providing, inter alia, that appellee’s brief “shall point out any material inaccuracy or incompleteness of appellant’s statement of facts and any additional statement of facts deemed necessary, plus such additional parts of the record or transcript deemed material”).

        Bryson v. State, 228 Ga. App. 84, 85-86 (2), (3) (491 SE2d 184) (1997) (holding that “the order of revocation must be vacated and the case remanded to the trial court for the entry of a findings of fact and judgment authorized by the evidence,” where defendant correctly asserted that a written finding was unsupported by the evidence, even though the trial court did not err in determining that defendant had violated the terms of his probation in the manner alleged); see generally Johnson v. State, 307 Ga. App. 570, 572-573 (707 SE2d 373) (2011) (reversing probation revocation and remanding case for further proceedings, where trial court committed reversible error in revoking defendant’s probation for failure to pay court-ordered fines and fees).


author: MILLER, Presiding Judge.

text:
    A12A1450.
    REDDING v. THE STATE.
    (733 SE2d 383)
   MILLER, Presiding Judge.

Following a jury trial, James Redding was convicted of two counts of simple battery (OCGA § 16-5-23 (a) (1)). Redding appeals, contending that the trial court erred (i) in denying his request to instruct the jury that lack of consent is an element of the simple battery offense and (ii) in excluding evidence that the victims’ actions were indicative of gang membership. We discern no error and affirm.

Viewed in the light most favorable to the jury’s verdict, the trial evidence showed that Redding owned and operated the Coco Loco restaurant bar located in DeKalb County. At approximately 2:00 a.m. on May 8, 2011, the victims, Francisco Fernandez and Emmanuel Tellez, visited Redding’s bar. At some point during the visit, Fernandez damaged two of the bar’s pool tables by drawing graffiti on them using a marker.

After the graffiti was discovered, a bouncer at the bar approached Fernandez and directed him to go into the bar’s back office, where Redding was waiting. Before entering the office, Fernandez attempted to discard the marker by removing it from his pants pocket and dropping it onto the floor. The bouncer nevertheless observed Fernandez’s attempt, picked up the marker, and escorted Fernandez into the office. Another bouncer at the bar confronted Tellez, and Tellez was also escorted into the office.

Upon Fernandez’s entry into the office, Redding confronted him about the graffiti damage on the pool tables. Fernandez initially denied causing the graffiti damage, and Redding and Fernandez engaged in a physical altercation. After being overpowered by Red-ding during the altercation, Fernandez surrendered and admitted that he had drawn the graffiti on the pool tables.

Fernandez testified that he offered to pay for the damage to the pool tables, but Redding continued to hold him down against the floor. The bouncer handed Redding the marker that Fernandez had used to draw on the pool tables. Redding used the marker to write the name of the bar across Fernandez’s forehead.

Redding then directed his attention toward Tellez. When Red-ding confronted Tellez about the graffiti on the pool tables, a physical altercation ensued between Redding and Tellez. After overpowering Tellez during the altercation, Redding took the marker and wrote the name of the bar across Tellez’s forehead.

After being released from the office, Fernandez and Tellez left the bar and reported the incident to police. Redding later turned himself in to police custody and was charged with offenses related to the incident.

Redding testified in his defense at trial. Advancing a claim of “poetic justice” or “frontier justice,” Redding admitted that he had written on the foreheads of Fernandez and Tellez. Redding nevertheless claimed that his acts did not constitute the offense of battery since Fernandez and Tellez had agreed to allow him to write on their foreheads in exchange for his agreement not to call the police and not to charge for the damage to his pool tables. Fernandez and Tellez, however, refuted Redding’s claim and testified that they had not consented to Redding’s acts.

At the conclusion of the trial, the jury found Redding guilty of the simple battery offenses based upon his acts of writing on the victims’ foreheads.

1. Redding contends that the trial court erred in refusing to give his requested jury charge that consent or the lack thereof was an element of simple battery. We discern no error.

The record shows that the trial court rejected Redding’s requested charge, which defined simple battery as physical contact of an insulting or provoking nature that “is not consented to by the other.” Instead, the trial court charged the jury on the definition of simple battery by quoting the statutory language of OCGA § 16-5-23 (a) (1): “A person commits the offense of simple battery when he intentionally makes physical contact of an insulting or provoking nature with the person of another.” Redding was permitted to give closing arguments that the contact was not insulting or provoking if the physical contact occurred with the victims’ consent.

Thereafter, during their deliberations, the jury submitted the following question: “[I]n the definition of simple battery, is the act itself being determined as insulting and provoking, or is the intent of the accused to be determined as insulting and provoking?” Redding requested that the trial court respond to the question by giving his charge defining the offense as involving lack of consent. The trial court, however, did not interpret the jury’s question as asking about the victims’ alleged consent. Rather, the trial court believed that the jury’s question pertained to Redding’s intent in committing the act. The trial court responded to the question by giving the jury a recharge, which again defined simple battery in accordance with the language of the statute, informed that a defendant’s intent is an essential element of the crime, and stated that the jury would be required to determine whether Redding acted with the requisite intent to commit the act charged.

Redding now contends that the trial court erred in not giving his requested charge since the victims’ alleged consent was his sole defense. We disagree.

If an affirmative defense is raised by the evidence, including the defendants’ own statements, the trial court must present the affirmative defense to the jury as part of the case in its charge, even absent a request. The affirmative defense, however, need not be specifically charged if the case as a whole is fairly presented to the jury.

(Citation and punctuation omitted.) Booker v. State, 247 Ga. 74 (274 SE2d 334) (1981). It is true that consent or lack thereof is relevant in a case involving simple battery under OCGA § 16-5-23 (a) (1) to the extent that it pertains to the “insulting or provoking nature” element of the offense. See OCGA § 16-5-23 (a) (1); Ramey v. State, 203 Ga. App. 650, 652 (3) (417 SE2d 699) (1992); see also Wells v. State, 204 Ga. App. 90, 90-91 (418 SE2d 450) (1992) (affirming simple battery conviction based upon defendant’s act of touching the victim’s breast without her consent); Hardy v. State, 159 Ga. App. 854, 859-860 (285 SE2d 547) (1981) (affirming simple battery conviction as a lesser included offense of rape; ruling that rape necessarily includes physical contact of an insulting or provoking nature, and that a finding of consent to sexual intercourse would neutralize any insulting or provoking nature of such contact). Lack of consent is implicit in the definition and the application of the simple battery statute. Contrary to Redding’s claim, however, lack of consent is not a specified element of the simple battery offense. See OCGA § 16-5-23 (a) (1). Rather, the effect of a consent defense is simply to traverse the State’s proof regarding the “insulting or provoking nature” element. See Felker v. State, 252 Ga. 351, 363 (1) (c) (314 SE2d 621) (1984).

Redding was allowed to present his consent defense to the jury as a challenge to the “insulting or provoking nature” element. The trial court correctly charged the jury on simple battery by quoting the statutory language of OCGA § 16-5-23 (a). See Brinkworth v. State, 222 Ga. App. 288, 288-289 (2) (474 SE2d 9) (1996). “The trial court was not obligated to instruct the jury in the exact language [that Redding] requested; it was sufficient that the same principle of law was fairly covered in the instructions actually given the jury.” (Citation omitted.) Id.

2. Redding also contends that the trial court erred in excluding evidence that the victims’ actions were indicative of gang membership or affiliation. Prior to trial, the State presented a motion in limine to exclude references to the victims’ alleged gang membership. In response, Redding agreed that the victims’ alleged gang membership was not relevant to show justification, but claimed that it was relevant to explain why fellow gang members entered the office to fight with Redding after his confrontation with Fernandez. After hearing the arguments, the trial court granted the State’s motion to exclude the evidence.

Later during the trial, Redding raised the issue again and made a proffer of the testimony of a gang expert, who purportedly would have described the activities and behaviors typically associated with gangs. Redding argued that the gang evidence would explain why Fernandez marked graffiti on the pool tables and why Tellez joined the altercation to defend Fernandez. The trial court again ruled that the gang evidence was inadmissible, reasoning that it was not willing to insert the extremely prejudicial issue of gang membership into the case since the evidence did not clearly establish that the incident was gang related.

No basis for reversal has been shown. “Whether to admit evidence is a matter resting in the trial court’s sound discretion[.]” (Citation and punctuation omitted.) Boring v. State, 289 Ga. 429, 433 (2) (711 SE2d 634) (2011).

[Although evidence of the victim’s specific acts of violence against third persons when the defendant is claiming justification is admissible, mere membership in a gang is not a specific act of violence____[Moreover,] the victim’s character is rarely relevant for any purpose in a criminal proceeding.

(Punctuation and footnotes omitted.) Harris v. State, 298 Ga. App. 708, 711 (2) (680 SE2d 693) (2009).

Significantly, in his argument to the trial court, Redding claimed that the gang evidence was not offered to show justification, and that it was not relevant for that purpose in this case. Instead, he asserted that the gang evidence was relevant to explain the graffiti and the multiple physical altercations. Redding now contends that the gang evidence was relevant to support his defense that writing on the victims’ foreheads was an appropriate remedy to which the victims would have consented. However, he did not argue on this ground in the trial court below. In his arguments to the trial court, Redding never asserted that the evidence was relevant to explain the victims’ alleged consent to his acts. “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.” (Citations and punctuation omitted.) Watkins v. State, 206 Ga. App. 701, 705 (3) (426 SE2d 238) (1992). “The attempted shift of grounds waives one and forgoes the other.” (Citations omitted.) Wilkins v. State, 220 Ga. App. 516, 517 (1) (469 SE2d 695) (1996). Consequently, Redding’s newly asserted ground has been waived.

Decided October 18, 2012

Hall, Hirsch & McDaniel, Andrew C. Hall, for appellant.

Sherry Boston, Solicitor-General, Timothy R. Owens, Kelly A. C. McMichael, Assistant Solicitors-General, for appellee.

Judgment affirmed.

Ray and Branch, JJ., concur.

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

       The jury acquitted Redding of several other charges for battery and disorderly conduct related to the physical altercations. The trial court directed a verdict of acquittal as to other charges pertaining to a third alleged victim.

       The trial court explained that at a prior hearing, the victims testified that although they had previously been members of gangs, they were not members of the same gang, they were no longer affiliated with gangs, and the incident involving Redding was not gang related. The trial court further noted that there was no evidence that the graffiti marked on the pool tables was a gang insignia.