author: BARNES, Presiding Judge.

text:
    A13A1106.
    BRAUN v. THE STATE.
    (747 SE2d 872)
   BARNES, Presiding Judge.

Alan Braun appeals the denial of his motion to suppress and his motion for a new trial. Officers discovered methamphetamine in his home during the execution of a “no-knock” search warrant. Braun contends that his motion to suppress should have been granted because the “no-knock” provision was not justified and the affidavit did not provide probable cause for searching both residences on the property. He also maintains that he should have been granted a new trial because of the erroneous denial of his motion to suppress. We disagree and affirm.

The facts of this case are undisputed. A special agent with the Fayette County Sheriff’s Department began investigating Braun after receiving a tip from Crime Stoppers Atlanta that Braun, who kept rifles and shotguns at his residence, was both selling methamphetamine to middle school students and soliciting them for sex. In the course of his investigation, the special agent did not observe significant vehicular or foot traffic at Braun’s residence, although he could only watch the house for fifteen or twenty minute intervals due to low traffic on the residential street. He noted two residential structures on the property and assumed that Braun lived in the smaller of the two after seeing him leave it. One driveway, mailbox, and trash can served both houses.

About six months after receiving the initial tip, the special agent inspected the contents of the shared trash can after it had been left at the curb. He found methamphetamine residue on a broken glass pipe and on numerous pieces of aluminum foil with burn marks. Based on the agent’s experience, drug users commonly smoke methamphetamine by placing the drug on aluminum foil, heating the bottom of the foil, and then inhaling the smoke. The trash also contained mail addressed to Braun and to his father, the registered owner of the property.

The special agent applied for and received a search warrant for both houses with a “no-knock” provision using an affidavit that cited Braun’s prior arrests for battery, various drug charges, and possession of a firearm during the commission of a crime, along with the agent’s experience that the subjects of such search warrants often possess firearms and package illegal narcotics for easy destruction. Upon execution of this warrant, agents recovered a digital scale, several pipes, plastic bags containing methamphetamine residue, and methamphetamine from Braun’s home.

Braun filed a motion to suppress this evidence, which was denied. Following a stipulated bench trial, the trial court found him guilty of possession of methamphetamine. The trial court subsequently denied his motion for a new trial, and this appeal followed.

1. Braun maintains that the trial court erred in denying his motion to suppress because there was no reasonable basis for the no-knock provision of the search warrant. We are not persuaded.

“In reviewing a trial court’s ruling on a motion to suppress, we construe the evidence most favorably to the findings and the judgment. However, the application of the law to undisputed facts is subject to de novo appellate review.” (Citation omitted.) State v. Cash, 316 Ga. App. 324, 325 (728 SE2d 918) (2012). Because there is no factual dispute in this case, we review the trial court’s ruling de novo. Id.

Generally, police must make a good faith attempt to verbally announce their authority and purpose before entering a building to execute a search warrant. However, a warrant can authorize a “no-knock” entry where police seeking the warrant demonstrate a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.

(Citation omitted.) State v. Barnett, 314 Ga. App. 17, 18 (722 SE2d 865) (2012). Blanket provisions based on the generalized experience of the officer seeking the warrant do not authorize no-knock provisions. Id. An affidavit based on the general ease of destroying drug evidence and the officer’s experience is also insufficient, as is the mere fact that the warrant is being issued in a felony drug investigation. Id. at 18-19. The magistrate must perform a neutral evaluation of each case’s particular facts and circumstances. Id. at 18.

Nonetheless, “[t]he standard for establishing the reasonable suspicion necessary to justify a no-knock entry, as opposed to the standard for establishing probable cause, is not high.” (Citation and punctuation omitted.) Kimble v. State, 301 Ga. App. 237, 244 (5) (687 SE2d 242) (2009).

(a) Braun contends that the magistrate should not have considered his arrest record in granting the no-knock provision because he had not been convicted of those crimes.

“Our responsibility in reviewing a trial court’s ruling on a motion to suppress is to ensure that there was a substantial basis for the decision.” Cook v. State of Ga., 255 Ga. App. 578, 579 (565 SE2d 896) (2002).

The officer does not have to show specific information that would lead officers to conclude that they would be harmed if they announced their authority and purpose; it is sufficient if the information supplied by affidavit and sworn testimony would lead to the reasonable conclusion that the officers could be harmed if they announced their authority and purpose.

(Citation and punctuation omitted; emphasis in original.) Kimble, 301 Ga. App. at 244-245. Thus, a no-knock provision was appropriate in Kimble because the subject of the warrant had a pending weapons charge and prior drug and theft convictions. Id. at 245. Likewise, because the subject of the warrant in Cook had been convicted of battery and a drug offense, a no-knock provision was reasonable. 255 Ga. App. at 579-580.

The trial court held that the probable cause from Braun’s prior arrests for battery and possession of a firearm “carrie[d] over to this case.” Because those arrests were supported by probable cause, the officer had “probable cause to suspect that [Braun] was a man of violence with firearms” who might harm officers if they knocked before entering his residence, and the magistrate could thus consider his arrest record. These facts provided a sufficient basis for the trial court’s holding that the inclusion of a no-knock provision in the warrant was reasonable under the circumstances, and the court did not err in denying Braun’s motion to suppress. Cook, 255 Ga. App. at 579-580.

(b) Braun asserts that the Crime Stoppers tip that there were rifles and shotguns in his house was nothing but a rumor because the officers knew nothing about the informants.

Braun is correct that the tip was insufficient to justify the inclusion of a no-knock provision in the search warrant. The information was stale and the tipster’s reliability unproven, and the tip supplied no probable cause supporting the inclusion of the no-knock provision or the issuance of the warrant itself. Eaton v. State, 210 Ga. App. 273, 274 (1) (435 SE2d 756) (1993). But even without the information about the anonymous tip, the affidavit provided sufficient support for the magistrate’s finding of probable cause and inclusion of the no-knock provision under the totality of the circumstances test. See Powers v. State, 261 Ga. App. 296, 303 (4) (582 SE2d 237) (2003).

2. Braun contends that the search warrant was deficient because the affidavit did not establish sufficient probable cause to search both residences, and thus the trial court erred in denying the motion to suppress.

The Fourth Amendment “requires that the warrant particularly describe the place to be searched.” (Citation and punctuation omitted.) Conrad v. State, 316 Ga. App. 146, 148 (1) (730 SE2d 7) (2012).

In determining whether probable cause supports the issuance of a search warrant, the issuing magistrate must evaluate all the circumstances set forth in the affidavit before him or her and make a practical, common-sense decision whether there is a fair probability that evidence of a crime will be found in a particular place.

(Citation and punctuation omitted.) Carter v. State, 319 Ga. App. 609, 611 (1) (737 SE2d 714) (2013). “Even doubtful cases should be resolved in favor of upholding a magistrate’s determination that a warrant is proper.” (Footnote omitted.) Conrad, 316 Ga. App. at 149.

The test for the sufficiency of a premises description is whether on its face it enables a prudent officer executing the warrant to locate the person and place definitely and with reasonable certainty. ... It is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.

(Citation and punctuation omitted.) State v. Hardin, 174 Ga. App. 83 (329 SE2d 172) (1985). The warrant described the place to be searched with sufficient particularity by giving the street address, city, county, and state. See Jackson v. State, 129 Ga. App. 901 (1) (b) (201 SE2d 816) (1973); Adams v. State, 123 Ga. App. 206 (180 SE2d 262) (1971).

Braun attempts to compare the two separate residential structures to any multi-unit structure in which the tenants share a trash can, such as a duplex or apartment complex, but the facts in this case supported issuing a warrant to search both structures. The affidavit submitted with the application for a search warrant stated that the two residential structures shared a single address and that Braun’s father owned both. They shared a driveway and mailbox in addition to the trash can, and both Braun’s and his father’s discarded mail were discovered in the trash along with the indicators of drug activity. The drug remnants and residue found in the Brauns’ shared trash provided the magistrate with sufficient evidence that drugs could be found in either residence. See Carter, 319 Ga. App. at 611; Conrad, 316 Ga. App. at 148-151 (1).

Decided August 16, 2013

Reconsideration denied October ll, 2013

James E. Bischoff, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Adam E. Younker, Assistant District Attorneys, for appellee.

We conclude that the affidavit provided the magistrate with enough information to come to the practical, common-sense conclusion that illicit drugs were being used in and/or sold from the residence located at [a particular address]; that [Braun] was a target of the drug investigation and lived at that location with at least one of his parents; . . . and that there was a fair probability that evidence of drug crimes could be found in either . . . residential structure. Because the application for the search warrant established probable cause to search [both structures], we conclude the trial court properly denied the motion to suppress the evidence.

(Punctuation and footnote omitted.) Conrad, 316 Ga. App. at 151 (1) (subject of search warrant lived in a mother-in-law suite inside a single residential structure).

3. Braun argues that the trial court should have granted his motion for a new trial because the court improperly denied his motion to suppress.

Based on our findings in Divisions 1 and 2 that the motion to suppress was properly denied, we hold that the trial court correctly denied Braun’s motion for a new trial.

Judgment affirmed.

Miller and Ray, JJ., concur.


source: Caselaw Access Project

author: Miller, Judge. BARNES, Presiding Judge,

license: Public Domain

text:
    A13A1430.
    BIRDETTE v. THE STATE.
    (748 SE2d 472)
   Miller, Judge.

Following a bench trial, Lorenzo Birdette was convicted of rape (OCGA § 16-6-1 (a) (1)). Birdette now appeals from the denial of his motion for new trial, arguing that he did not knowingly, intelligently, and voluntarily waive his right to a jury trial. We discern no error and affirm.

We will affirm a trial court’s decision that an appellant has validly waived his right to a jury trial unless the decision is clearly erroneous. Jacobs v. State, 299 Ga. App. 368, 370 (1) (683 SE2d 64) (2009).

The record shows that prior to opening statements at the bench trial, the trial judge conducted the following colloquy with Birdette:

COURT: Mr. Birdette, I want to make sure you understand that we’re doing this as a bench trial, meaning that I’m going to sit as a jury would and make the decisions about the facts as well as the law. You and [trial counsel] have talked about that?
DEFENDANT: Yes.
COURT: And that’s what you want to do?
DEFENDANT: Yes, ma’am.
COURT: All right. We’ll proceed then with the bench trial.
[PROSECUTOR]: So just to be clear, Mr. Birdette is expressly waiving his right to a jury trial.
COURT: You are giving up your right to a jury trial.
DEFENDANT: Yes, ma’am.

At the bench trial, Dr. Guy Jordan, an expert in clinical psychology, testified as a witness for the defense. Dr. Jordan conducted a six-hour psychological evaluation of Birdette in June 2007 pursuant to the trial court’s order requiring that Birdette be evaluated to determine his competency to stand trial and his ability to recognize his behavior as criminal at the time of the alleged offense. Dr. Jordan’s intelligence and educational achievement testing showed that Birdette had a full-scale IQ of 52, which falls in the range of mild mental retardation, he read at a first-grade level, and his math skills were at a beginning second-grade level. Dr. Jordan estimated that Birdette had a mental age of about 13 or 14. Nevertheless, with regard to Birdette’s competency to stand trial, Dr. Jordan concluded that Birdette had an appropriate understanding of the charges against him; was able to communicate adequately information about his life history and the circumstances that brought him to the present situation; and was able to communicate well enough to be considered legally competent. Dr. Jordan cautioned, however, that certain information might need to be read and explained to Birdette. In his written report, Dr. Jordan stated that in view of Birdette’s limited educational achievement,

any information provided to [Birdette] through the legal system must be done orally as he has no ability to read information or understand it. This limits his competency to information that can be explained to him orally with [Birdette] appropriately summarizing the information to ensure that he understands the concepts presented to him.

At the hearing on the motion for new trial, Birdette’s trial counsel testified that he explained to Birdette the differences between a jury trial and a bench trial on several occasions. In particular, he explained that “a jury trial is putting 12 people in a box, a bench trial is just a judge,” and at a bench trial, “the judge would handle all of it, listen to both the evidence and make the decision and do the sentencing.” Trial counsel stated that he and Birdette discussed the advantages and disadvantages of a bench trial and a jury trial, that he advised Birdette that a bench trial presented a “better chance of some kind of success,” and that Birdette “agreed that we should go forward with a bench trial.”

At the motion for new trial hearing, Birdette testified that his trial counsel told him prior to trial that “[the trial judge] had got me a doctor” and “[i]t would come out better if [the trial judge] look at the case and [the trial judge] go by what the doctor is saying[.]” When asked whether he discussed with his trial counsel whether to have a bench trial or jury trial, Birdette responded that his trial counsel told him that “[the trial judge] going to be there, and it’s going to be a couple more people” and stated that “I’d be ok with [Dr.] Jordan doing what he had to do, and with [the trial judge] hooking me up with a doctor and—it would be good for me to go in front of [the trial judge].” Birdette stated that he did not understand at the time that his trial counsel was advising him to have a bench trial as opposed to a jury trial and did not understand the difference between the two. Birdette explained, however, that he knew what a jury was because his mother told him it consisted of “free-world” or “outside” people. Birdette further testified that if he had known he was not going to have a jury on the day of the bench trial, he would not have gone forward. When asked if, during his colloquy with the trial judge, he understood that he would not have a jury decide his guilt or innocence, Birdette testified:

Well, I know that [trial counsel] said that [the trial judge] was going to do that, but I was going off what [trial counsel] said was the best thing to do. Now, myself, it was up to me, I wouldn’t have did that. . . . But since I’m trying to be cool and nice and trying to do the right thing, I went along with what [trial counsel] said.

On cross-examination, Birdette conceded that his trial counsel discussed with him what a jury trial was and whether a jury trial or bench trial would be better; that trial counsel recommended a bench trial; and that he told the trial judge he wanted a bench trial based on his trial counsel’s advice.

In his sole enumeration of error, Birdette argues that he did not knowingly, intelligently, and voluntarily waive his right to a jury trial. We reject this contention.

A defendant’s right to a jury trial is a fundamental constitutional right that the defendant must personally, knowingly, voluntarily, and intelligently choose to waive. Watson v. State, 274 Ga. 689, 691 (2) (558 SE2d 704) (2002).

When the purported waiver of this right is questioned, the State bears the burden of showing that the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.

(Citation and punctuation omitted.) Seitman v. State, 320 Ga. App. 646 (740 SE2d 368) (2013).

The record here shows that the trial judge conducted a colloquy with Birdette during which she explained that in a bench trial she would “sit as a jury ... and make decisions about the facts as well as the law” and Birdette affirmed that he had discussed the issue with his trial counsel and was giving up his right to a jury trial. Birdette nevertheless contends that given his mental limitations, the trial judge should have provided a more extensive explanation of the consequences of a jury trial waiver and required Birdette to repeat what she had explained, as Dr. Jordan recommended.

“A trial court may be authorized to find that an individual is capable of waiving his rights even though there is evidence to the effect that he is moderately retarded.” (Citation and punctuation omitted.) Fife v. State, 306 Ga. App. 425, 428 (2) (702 SE2d 454) (2010) (finding no clear error in trial court’s determination that appellant knowingly and voluntarily waived Miranda rights). Even assuming arguendo that the State could not carry its burden of proving a valid waiver based solely on Birdette’s colloquy with the trial judge, the State also relies on trial counsel’s testimony at the motion for new trial hearing. See Jacobs, supra, 299 Ga. App. at 370 (1) (State may present extrinsic evidence showing valid waiver of right to jury trial, including testimony by defense counsel in motion for new trial hearing about his recollections); Fleming v. State, 282 Ga. App. 373, 376-377 (2) (638 SE2d 769) (2006) (State carried burden of proof regarding jury trial waiver with trial counsel’s testimony at motion for new trial hearing regarding his discussions with appellant). As set forth above, Birdette’s trial counsel, who was well aware of Dr. Jordan’s evaluation, testified at the motion for new trial hearing that he met with Birdette on several occasions and explained the differences between a jury trial and bench trial and the respective advantages of each. Trial counsel further testified that Birdette agreed that they should go forward with a bench trial based on his recommendation. Further, although Birdette’s testimony was contradictory, the trial judge was entitled to credit his statements on cross-examination that his trial counsel discussed with him the nature of a jury trial and whether a jury trial or bench trial would be more advantageous. As discussed above, Birdette also conceded on cross-examination that, based on his trial counsel’s recommendation, he affirmed to the judge that he was waiving his right to a jury trial. Finally, the trial judge was entitled to consider Dr. Jordan’s conclusion that Birdette was competent to stand trial.

The trial court, having presided over the bench trial and motion for new trial hearing, was in the best position to determine whether, under all the circumstances, Birdette validly waived his right to a jury trial despite his mental limitations. See Edwards v. State, 285 Ga. App. 227, 230 (2) (645 SE2d 699) (2007) (trial court was in best position to determine whether appellant had capacity to understand proceedings and jury trial waiver despite his age). On the record before us, we find no clear error in the trial court’s conclusion that Birdette personally, knowingly, intelligently, and voluntarily waived that right.

Judgment affirmed.

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

BARNES, Presiding Judge,

concurring fully and specially.

While I concur fully in the majority opinion, I write to emphasize that it is especially important for the trial court to ascertain that the waiver of the right to a jury trial is knowingly, intelligently, and voluntarily given in cases, such as this, where the defendant, although mentally competent to stand trial, had limited or no ability to process the written information provided about the waiver of the right. In these cases, the oral presentation of the waiver information is of even greater significance.

Here, a psychologist testified that because of Birdette’s mental retardation, he did not have the ability to read or understand the information provided by the legal system about his waiver of a jury trial, and cautioned that certain information might need to be orally presented to him. Although the judge personally questioned Birdette to ascertain that he understood that he was waiving his right to a jury trial and that the judge “was going to sit as a jury,” it is troubling that the defendant later testified at his motion for new trial hearing that he was still expecting the jury of “free-world people” to show up at some point during the bench trial.

In Jones v. State, 302 Ga. App. 147 (690 SE2d 460) (2010), although trial counsel informed the judge that he had extensively counseled Jones about the difference between a jury trial and a bench trial,

the judge spoke to Jones directly and informed him that he had the right to a jury trial, that twelve persons would sit in judgment in a jury trial, and that the prosecutor would bear the burden of convincing each one of the twelve persons of Jones’s guilt beyond a reasonable doubt. The judge explained the voir dire process and made clear that by waiving the right to a jury trial, Jones would be forfeiting the voir dire process and his right to have the 12 persons chosen through that process decide his guilt or innocence, and that the judge instead would be making that determination. Jones confirmed his understanding of such and stated he would rather have a bench trial.

Id at 150-151 (2).

Certainly, this colloquy is not required in every circumstance; indeed, “there is no legal precedent necessarily requiring an ‘in court’ waiver of the right of a jury trial.” (Citation and footnote omitted.) Davis v. State, 287 Ga. App. 783, 785 (2) (653 SE2d 107) (2007). However, a defendant’s right to trial by jury is one of those fundamental constitutional rights that the defendant must personally, knowingly, voluntarily, and intelligently choose to waive, and do so fully cognizant of exactly what it is that is being waived. See McCormick v. State, 222 Ga. App. 753, 755 (1) (476 SE2d 271) (1996) (“[M] any laypersons think a criminal ‘trial’ naturally includes a jury, and laypersons may not understand that a ‘bench’ trial does not include a jury.”).

Decided September 10, 2013

Reconsideration denied October ll, 2013.

Charles E. W. Barrow, for appellant.

Lee Darragh, District Attorney, Juliet Aldridge, Assistant District Attorney, for appellee.

       The trial court found Birdette guilty but mentally retarded on charges of aggravated child molestation and rape and merged the aggravated child molestation count into the rape count.


author: DOYLE, Presiding Judge.

text:
    A13A1380.
    MARTIN v. THE STATE.
    (749 SE2d 815)
   DOYLE, Presiding Judge.

Carlos Martin appeals his conviction of armed robbery and possession of a firearm during the commission of a crime, contending that (1) the evidence was insufficient to support the verdict, (2) the trial court erred by refusing to charge the jury on grave suspicion, and (3) similar transaction evidence was erroneously admitted. Discerning no error, we affirm.

Construed in favor of the verdict, the evidence at trial shows that in September 2008, a Dairy Queen employee noticed an unfamiliar car sitting in the parking lot with its lights on for approximately three hours before she left at 10:00 p.m. closing. Another employee, the assistant manager, was closing for the night, and he was preparing to make the bank deposit of the cash receipts. As he locked the door of the restaurant, two men with faces concealed by clothing ran toward him and ordered him to “give it up”; both of the men were armed with handguns. The manager dropped the bank deposit bag, one gunman picked it up, and then both gunmen fled to the parked car. A second Dairy Queen employee, Catlin Tierce, who was getting a ride home from the manager, was already outside when the robbery happened. Tierce saw both robbers, one with a white cloth concealing his face and one with a black cloth concealing his face, run to the nearby car and get in the front and back passenger-side doors. The car, which already had its brake lights on as the robbers approached, quickly sped away. Tierce called 911, reported the robbery, and described the car.

Deputy Bryland Myers was sitting in his patrol car nearby when he received a radio call reporting the robbery and describing the car and its general location. He drove to a nearby interstate ramp to watch for the vehicle and spotted a car matching the description. Myers caught up to the vehicle and activated his blue lights, at which time the driver fled at a speed of more than 100 miles per hour. Eventually a tire blew on the fleeing vehicle, and it exited the interstate, soon crashing into a tree. All three occupants fled the car on foot. Myers pursued the last suspect, Martin’s accomplice, out of the car and eventually apprehended him as he hid amid kudzu in a steep ravine behind a fish market. A police canine unit soon arrived and tracked down a second suspect, Martin, hiding in the kudzu. Police found a Dairy Queen bank deposit slip, later identified by the manager who prepared it, sitting on the front seat, as well as a wallet containing Martin’s driver’s license and social security card. Police eventually located and arrested the third person in the car.

The three occupants of the car were charged with crimes arising from the robbery and police chase, and following a jury trial, Martin was found guilty of armed robbery, aggravated assault (which merged into armed robbery), and possession of a firearm during the commission of a crime. Martin’s motion for new trial was denied, and he now appeals.

1. Martin first contends that the evidence was insufficient to support the verdict because it was entirely circumstantial, and the proven facts did not exclude every other reasonable hypothesis save that of his guilt. We disagree.

When an appellate court reviews the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Viewed under this standard, the evidence shows that Martin was found by police hiding in kudzu after a high-speed chase. Martin was in a car with two men who fit the description of the two men who robbed the Dairy Queen, and the car contained a deposit slip identified by the Dairy Queen worker who filled it out before it was stolen at gunpoint. Further, an eyewitness noticed that during the robbery, the getaway car’s brake lights activated just before the fleeing robbers entered the car to escape, thus implicating a third individual driving the car. Martin was substantially shorter than the other two occupants, who were the same height as described by the victim, and Martin admitted to police that he was in the car with the two others and nobody else. This evidence authorized the jury to conclude that Martin drove the car to aid in the escape after the other two men robbed the Dairy Queen manager. “Whether the evidence excluded every other reasonable hypothesis but that of guilt is a question for the jury. We will not disturb the jury’s verdict unless it is insupportable as a matter of law.” Accordingly, this enumeration provides no basis for reversal.

2. Martin also argues that the trial court erred by failing to give his requested jury charge on grave suspicion. Nevertheless, as outlined above, “[t]he evidence at trial . . . raised more than a grave suspicion of his guilt. Furthermore, the trial court gave complete instructions on reasonable doubt and presumption of innocence. Thus, the trial court did not err in refusing to give the requested charge.”

3. Finally, Martin contends that the trial court erred by admitting evidence of a similar transaction showing that he was involved in a prior armed robbery of a Domino’s Pizza restaurant. Specifically, he argues that the Domino’s robbery was not sufficiently similar to make it admissible in the present case.

Evidence of a similar transaction may be admitted if the State shows (1) that the State seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility; (2) that there is sufficient evidence to establish that the accused committed the independent offense or act; and (3) that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter____When considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question. We will uphold the trial court’s decision to admit a similar transaction unless it is an abuse of discretion.

Here, the Domino’s robbery occurred late at night when a Domino’s employee had just closed the restaurant, and two men ran at her with their faces concealed by t-shirts and one armed with a handgun. The robbers demanded money, but the restaurant money had been deposited in a safe, so they grabbed the employee’s purse and keys. After the two men fled, the employee called police, who were able to apprehend them shortly thereafter. The employee’s belongings were recovered, and the employee identified Martin as one of the robbers, both to police at the time and later in court in the instant case.

Based on these facts, we discern no abuse of discretion. The State introduced the evidence of the Domino’s robbery to show Martin’s intent and his modus operandi or course of conduct, which were legitimate purposes at the time of trial. The State presented sufficient evidence that Martin committed the Domino’s robbery, which involved robbing a restaurant night manager at closing time while concealing his face with clothing. That robbery was similar enough to the facts of this case for the trial court to conclude that it was admissible as a similar transaction. Accordingly, this enumeration fails.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

Decided October 11, 2013.

Mary Erickson, for appellant.

David McDade, District Attorney, Jeffrey M. Gore, Assistant District Attorney, for appellee.

       OCGA § 16-8-41 (a).

       OCGA § 16-11-106 (b) (1). An aggravated assault count was merged, and based on lack of venue, Martin received a directed verdict of not guilty on an obstruction count predicated on conduct during a police chase.

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       (Citations omitted.) Simmons v. State, 291 Ga. 705 (1) (733 SE2d 280) (2012).

       (Citations omitted.) Jenkins v. State, 281 Ga. 24, 25 (2) (635 SE2d 714) (2006). See also Jones v. State, 318 Ga. App. 105, 109 (5) (733 SE2d 407) (2012) (“Because the trial court gave complete instructions on reasonable doubt and the presumption of innocence, the charge as a whole covered the principles of law embodied in the “[grave] suspicion” charge. The trial court, therefore, did not abuse its discretion in denying [Martin’s] request for the charge.”) (punctuation omitted).

       (Citation and punctuation omitted.) Johnson v. State, 292 Ga. 22, 24 (2) (733 SE2d 736) (2012), quoting Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

       See Holloman v. State, 291 Ga. 338, 343 (6) (729 SE2d 344) (2012).
      We note that for trials conducted after January 1, 2013, the new Evidence Code permits the admission of similar-transaction evidence for the purpose of proving [inter alia] “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” but no longer for the purpose of proving “bent of mind” or “course of conduct.” OCGA § 24-4-404 (b).

        Betancourt v. State, 322 Ga. App. 201, 206 (3), n. 15 (744 SE2d 419) (2013), citing Harvey v. State, 292 Ga. App. 792, 793 (2) (741 SE2d 625) (2013). This case was tried in 2009.

       See Johnson, 292 Ga. at 25 (2) (“[E]videnee that Appellant acted violently with another person to steal something from [a prior victim] was similar enough to the crime charged — in which Appellant acted violently with another person to steal something — for the trial court to conclude that it should be admitted”).


author: McFadden, Judge.

text:
    A13A1582.
    STOKES et al. v. HILL et al.
    (749 SE2d 819)
   McFadden, Judge.

Ruth Stokes, individually and as administrator of her husband’s estate, appeals the grant of summary judgment to defendants Tim Hill and Barry Kirby in her action for the wrongful death of her husband. Because Stokes had previously exercised her right to the one — and only one — renewal of the action outside the statute of limitation authorized by OCGA § 9-2-61 (a), she could not invoke that statute to save the instant lawsuit. The instant lawsuit therefore is barred by the statute of limitation, and we must affirm. We must affirm notwithstanding that the second dismissal was by a United States District Court in the exercise of his discretion not to exercise supplementary jurisdiction over Stokes’s state claims after disposition of her federal claims — and notwithstanding the federal court’s stated expectation that the case would proceed in state court.

On February 26, 2008, while he was incarcerated at the Floyd County Jail, Stokes’s husband was killed by another inmate. Defendants Hill and Kirby were jail personnel at the time. On February 26, 2010, Stokes filed a complaint against Hill, Kirby and others for the wrongful death of her husband. Her motion to voluntarily dismiss the action was granted on March 26, 2010, after the two-year statute of limitation for wrongful death actions had run. See Miles v. Ashland Chemical Co., 261 Ga. 726, 727 (410 SE2d 290) (1991) (two-year statute of limitation is applicable to wrongful death claims).

On September 24, 2010, Stokes filed a second complaint, this time in federal court, asserting claims for her husband’s death against Hill, Kirby, and others. All but one defendant (the inmate who killed Stokes’s husband) moved for summary judgment. On June 27, 2011, the federal court granted the defendants’ motion, dismissing all of Stokes’s claims that were based on federal law. The court declined to exercise supplementary jurisdiction over Stokes’s state law claim, dismissing it without prejudice.

On December 16,2011, Stokes filed a third complaint, the instant action, in superior court against Hill and Kirby. The trial court granted the defendants’ motion for summary judgment, finding that Stokes’s complaint was time barred. Stokes filed this appeal.

In order for the December 16,2011 complaint to be timely, Stokes must rely on OCGA § 9-2-61, the renewal statute.

OCGA § 9-2-61 (a) authorizes the renewal of a dismissed action within the applicable statute of limitation or within six months of the dismissal, whichever is later. If the dismissal occurs after the limitation period has expired, however, “this privilege of renewal shall be exercised only once.” OCGA § 9-2-61 (a).

Shy v. Faniel, 292 Ga. App. 253, 254 (1) (663 SE2d 841) (2008).

The March 26, 2010 grant of Stokes’s motion for voluntary “dismissal... occurred] after the expiration of the applicable period of limitation.” OCGA § 9-2-61 (a). Accordingly, under the plain language of the statute, Stokes could exercise the privilege of renewal outside the statute of limitation only once. She did so when she filed her second complaint on September 24, 2010; she could not again exercise the privilege of renewal to save the third complaint filed on December 16, 2011.

Stokes argues that her third complaint was permissible under the authority of Crawford v. Kingston, 316 Ga. App. 313 (728 SE2d 904) (2012). But in that case, unlike here, the second complaint was never served upon the defendant. It therefore was void and did not count as a renewal, and the third complaint was the first renewal outside the statute of limitation. Id. at 316-317 (2).

Stokes also points to the district court’s language in his dismissal order that Stokes could “re-file [the state] claim in state court within six months after the date of this Order.” That statement, unessential to resolving the issues before the district court, is merely dicta. And to the extent the statement is not dicta, it cannot expand the jurisdiction of the Georgia state courts under Georgia law. Corvair Furniture Mfg. Co. v. Bull, 125 Ga. App. 141 (3) (186 SE2d 559) (1971) (“A ruling of a [f]ederal [district [c]ourt is not binding on this court, and . . . will not be followed where to do so would run counter to the rules of procedure provided for this court by statutory or constitutional provisions, or by binding court decisions.”). Cf. Mitchell v. State, 265 Ga. App. 192, 194 (593 SE2d 388) (2004) (federal district court could not order a second appeal in state court, when such is not allowed under Georgia law).

In Henson v. Columbus Bank & Trust Co., 144 Ga. App. 80, 86-88 (240 SE2d 284) (1977), we declined to relax the strictures of the renewal statute on the ground that the dismissal was due to the federal court’s decision not to exercise pendent jurisdiction over the state law claims. Rejecting the plaintiff’s claim of unfairness, we observed that a plaintiff has “a full and uncircumscribed right to seek pendent jurisdiction of state claims in a federal court. If, however, there is danger that the statute of limitation might run on those state claims, the plaintiff should seek redress in the state courts to protect his interests.” Id. at 87. Henson applied a former version of the renewal statute, which did not give the right to renew after dismissal by a federal court. See id. at 84 (4). Although the reasons the plaintiff in Henson and Stokes could not re-file differ — in Henson because the then-applicable renewal statute did not apply to dismissals in federal courts, and here because Stokes already once has availed herself of the right of renewal—the principle is the same: the fact that the prior suit was dismissed by the federal court which declined to exercise supplementary jurisdiction does not change the analysis regarding the application of the renewal statute.

Decided October 11, 2013.

Morris & Dean, Jeffrey J. Dean, Kinney, Kemp, Pickell, Sponcler & Joiner, Matthew D. Thames, for appellants.

McRae, Stegall, Peek, Harman, Smith & Manning, Thomas H. Manning, Womack, Gottlieb & Rodham, Ronald R. Womack, Steven M. Rodham, for appellees.

This is Stokes’s second dismissal. Her first dismissal, which was voluntary, was granted on March 26, 2010, outside the statute of limitation. The instant lawsuit is Stokes’s second attempt at renewal and her third complaint, and it is untimely. “[T]he renewal statute explicitly states that it may be used only once if the dismissal occurs after the expiration of the applicable statute of limitation, and there is no dispute that both dismissals in this case occurred after the expiration of the applicable statute of limitation.” White v. KFC Nat. Mgmt. Co., 229 Ga. App. 73, 75 (493 SE2d 244) (1997). Accordingly, the trial court properly granted the defendants summary judgment, and we affirm.

Judgment affirmed.

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


author: Phipps, Chief Judge.

text:
    A13A0957.
    PENSO HOLDINGS, INC. et al. v. CLEVELAND.
    (749 SE2d 821)
   Phipps, Chief Judge.

Melissa Cleveland, individually and as class representative for others similarly situated, sued Pensó Holdings, Inc. d/b/a Capital Debt Settlement, Accelerated Debt Management Group, Inc., and CDS Client Services, Inc. (collectively “Pensó”), claiming that services Pensó had provided under a written agreement violated Georgia statutes specifically regulating the business of debt adjusting as set forth in OCGA § 18-5-1 et seq. Pensó moved to stay the litigation and compel arbitration, “pursuant to and in accordance with the terms of the Debt Settlement Agreement.” The trial court denied the motion, but issued a certificate of immediate review. Pensó sought an interlocutory appeal, which this court granted. Because the arbitration clause in the agreement showed that the parties intended to submit the type of claim in dispute to an arbitrator, we reverse.

The standard of review from the denial of a motion to compel arbitration is whether the trial court was correct as a matter of law. Further, the construction of a contract is a question of law for the court that is subject to de novo review. Where contract language is unambiguous, construction is unnecessary and the court simply enforces the contract according to its clear terms. Contract language is unambiguous if it is capable of only one reasonable interpretation.

In this case, the debt settlement agreement provided, among other things, the following:

Arbitration. All disputes or claims between the parties related to this Agreement shall be submitted to binding arbitration in accordance with the rules of American Arbitration Association within 30 days from the dispute date or claim. Any arbitration proceedings brought by Client shall take place in Rockingham County, New Hampshire.... The prevailing party in any action or proceeding related to this Agreement shall be entitled to recover reasonable legal fees and costs, including attorney’s fees which may be incurred.

In opposition to Penso’s motion to compel arbitration, Cleveland argued that her

cause of action arises solely from the Georgia Debt Adjustment Act. [] This is not a cause of action that is a result of a breach of the Agreement, nor is it subject to [Penso’s] attempted enforcement of the arbitration clause. The cause of action exists independently of the alleged contract between the parties.

Cleveland asserted that this court, in Attaway v. Tom’s Auto Sales and Hornsby v. Phillips, held that “a defendant’s contractual defenses cannot contravene the protection provided by Georgia’s consumer statutes.” In denying Penso’s motion to compel arbitration, the trial court, citing Attaway and Hornsby, found that “The Georgia Court of Appeals has upheld citizens’ rights to bring suits with statutory merit regardless of any contractual defenses.” The holdings of these cases do not apply, however, to the facts of this case.

In Attaway, a purchaser who had bought a vehicle from an automobile dealership filed suit against the dealership, alleging that the dealership, in violation of the Fair Business Practices Act (“FBPA”), made certain harmful misrepresentations to the purchaser to induce him to purchase the vehicle. The purchaser also sought recovery on the basis of breach of an express warranty and fraudulent misrepresentations. The dealership denied the material allegations of the complaint, denied that it had violated the FBPA, and moved for summary judgment, attaching to the motion an affidavit executed by the dealership’s president and a copy of the sales contract, purportedly controverting some of the alleged misrepresentations. After a hearing, the trial court granted the dealership’s summary judgment motion.

In Attaway, the purchaser did not contest, on appeal, the dealership’s argument that the language of the contract prohibited him from recovering on the grounds of express or implied warranty, or on the grounds of any alleged fraudulent misrepresentations. The purchaser, however, challenged the trial court’s grant of summary judgment on his claim for recovery under the FBPA. This court reversed the grant of summary judgment to the dealership, holding: “We reach the conclusion from a reading of the [FBPA] that although the plaintiff might not be able to rescind the contract or otherwise set it aside, the [FBPA] itself is in no way tied to contractual rights and is wholly self-sustaining.” This court further held: “From an overview of this [FBPA], we find that there is thereby created a separate and distinct cause of action under its provisions. A consumer who is damaged thereby has an independent right to recover under the [FBPA], regardless of any other theory of recovery.”

In reaching these conclusions, this court noted that the statutes promulgating the FBPA contained a provision stating the purpose of the FBPA; a provision declaring unlawful, unfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce; a provision granting a right to any person injured or damaged as a result of acts or practices committed in violation of the FBPA to bring an action against the person or persons engaged in such unlawful acts or practices; and a provision that, notwithstanding any other provision of law, the operation of the FBPA could not be limited “by contract, agreement or otherwise.”

In Hornsby, a seller who was sued for allegedly violating the Georgia Sale of Business Opportunities Act (“SBOA”) maintained, among other things, that a directed verdict in his favor was warranted because the buyer’s claims were time-barred pursuant to a provision of the sales contract. Citing Attaway, this court stated that it did not reach the seller’s argument, because “contractual defenses are inapplicable when an action is based not on the contract but solely on an alleged violation of the [SBOA].”

In this case, there is no provision in the debt adjusting statutes, as there is in the FBPA, providing that operation of said statutes could not be limited by contract, agreement, or otherwise. The debt settlement agreement pertinently provided that “[a]ll disputes or claims between the parties related to this Agreement shall be submitted to binding arbitration.” Cleveland cites no authority (and we have found none) for the proposition that arbitration constitutes a “contractual defense.” Arbitration is a “process of dispute resolution in which a neutral third party (arbitrator) renders a decision after a hearing at which both parties have an opportunity to be heard.” The Supreme Court of Georgia has acknowledged, “the purpose of arbitration is to provide a swift and inexpensive means for parties to resolve their disputes.”

Although Penso’s reliance upon Wells Fargo Auto Finance v. Wright is misplaced, the agreement in this case nevertheless mandates that Cleveland’s debt adjusting statutes claim be submitted to arbitration. In Wells Fargo Auto Finance, an arbitration provision mandated that the parties to a contract for the sale of a vehicle submit to arbitration “all claims, demands, disputes, or controversies of every kind or nature that may arise between [the parties] concerning . . . any . . . aspect[ ] of the vehicle and its sale, lease or financing. . . .” Thus, the buyer’s claim that the business to which his contract was assigned had engaged in deceptive practices by requiring him to continue to pay for the vehicle after he discovered that the vehicle had been involved in an accident before he purchased it, fit within categories of claims the agreement indicated would be submitted to arbitration.

In this case, however, the arbitration provision was not as broad in scope as the arbitration provision in Wells Fargo Auto Finance; here, the provision mandated the arbitration of all disputes and claims between the parties “related to” the agreement. Therefore, the question becomes whether Cleveland’s claim alleging that Pensó violated the debt adjusting statutes related to the agreement. “The words in a contract generally bear their usual and common signification, [] and dictionaries may supply the plain and ordinary meaning of a word.” Black’s Law Dictionary defines the term “related” as “[sjtanding in relation; connected; allied; akin.”

Under the section of her complaint entitled “Claims,” Cleveland stated “Count I — Violation of Georgia’s Debt Adjustment Act.” That section of the complaint pertinently stated as follows:

Decided October 15, 2013.

Winter, Capriola & Zenner, Richard J. Capriola, David B. Weinberg, for appellants.

Hurt Stolz, James W. Hurt, Jr., Hull Barrett, David E. Hudson, for appellee.

Defendants contracted for and accepted from the named Plaintiff, and the Plaintiff Class Members, a charge, fee, contribution, or combination thereof in an amount in excess of 7.5% of the amount they paid monthly for distribution to their creditors. Defendants’ conduct violates the provisions of the Georgia Debt Adjustment Act.

In accordance with the definition of “related” and pursuant to the allegations of the complaint, Cleveland’s claim that Pensó violated Georgia statutes regulating the business of debt adjusting was connected to the debt settlement agreement. And Cleveland’s attempts to void the arbitration provision by challenging the validity of other provisions of the arbitration clause are unavailing, as the agreement contained a severability clause, providing that “If any of the above provisions are held to be invalid or unenforceable, the remaining provisions will not be affected.”

“[A] provision in a written contract to submit any controversy thereafter arising to arbitration is enforceable without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award.” “As with any other contract, the parties’ intentions control. Accordingly, we find that the trial court erred when it denied [Pensó’s] motion to compel [arbitration].”

Judgment reversed.

Ellington, P. J., concurs. Branch, J., concurs in judgment only.

       D. S. Ameri Constr. Corp. v. Simpson, 271 Ga. App. 825, 826 (611 SE2d 103) (2005) (footnotes omitted).

       Notably, none of the provisions of the debt adjustment statutes are designated collectively as an “Act.”

       144 Ga. App. 813 (242 SE2d 740) (1978).

       190 Ga. App. 335 (378 SE2d 870) (1989).

       Attaway, supra.

       Id.

       Id. at 814.

       Id.

       Id. at 814, 816.

       Id. at 815.

       Id. (citation and punctuation omitted); see OCGA §§ 10-1-390; 10-1-391; 10-1-393 (a), (b), (c); 10-1-399 (a).

        Hornsby, supra at 340 (4).

       Id.

       Black’s Law Dictionary, 70 (6th ed. 1991).

        Bryan County v. Yates Paving & Grading Co., 281 Ga. 361, 363 (638 SE2d 302) (2006) (citation omitted).

       304 Ga. App. 621 (698 SE2d 17) (2010).

       Id. at 622 (1) (emphasis supplied).

       Id. at 621, 623 (1).

       OCGA § 13-2-2 (2).

        Harkins v. CA 14th Investors, 247 Ga. App. 549, 550 (544 SE2d 744) (2001) (citation and punctuation omitted).

       Black’s Law Dictionary, 892 (6th ed. 1991); see Harkins, supra at 550-551.

       (Emphasis supplied.)

       See generally Bulloch South v. Gosai, 250 Ga. App. 170, 175 (1) (b) (550 SE2d 750) (2001); Jackson v. Cintas Corp., 425 F3d 1313, 1316-1317 (III) (B) (11th Cir. 2005); OCGA § 13-1-8 (a) and (b) (“A contract may be either entire or severable. In an entire contract, the whole contract stands or falls together. In a severable contract, the failure of a distinct part does not void the remainder. The character of the contract in such case is determined by the intention of the parties.”).

        D.S.AmeriConstr. Corp., supra at 827 (punctuation andfootnote omitted); OCGA § 9-9-3.

        Wells Fargo Auto Finance, supra at 623 (1) (punctuation omitted); see D. S. Ameri Constr. Corp., supra at 826-827.


text:
    A13A1625.
    CLOWERS v. THE STATE.
    (750 SE2d 169)
   DOYLE, Presiding Judge.

Following a jury trial, Jabari Clowers was convicted of selling marijuana, possessing marijuana with the intent to distribute, and obstructing law enforcement officers. Clowers appeals the denial of his subsequent motion for new trial, arguing that (1) the evidence was insufficient to support his convictions; (2) the trial court erred by denying his motion for a directed verdict; (3) the trial court erred by excluding certain evidence; (4) trial counsel was ineffective; and (5) the trial court erred by answering questions propounded by the jury. We affirm, for the reasons that follow.

When reviewing the sufficiency of the evidence on appeal,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

So viewed, the record shows that on July 19, 2010, an undercover officer with the Fayette County Tactical Narcotics Team arrived at a gas station to conduct an undercover buy of marijuana from Darius McDaniels. At approximately 3:00 p.m., a white SUV arrived at the gas station, and the driver, Clowers, backed the vehicle into the parking space beside the officer’s vehicle. McDaniels, the passenger, “wrestle[d] around with some stuff that was in his lap,” and then exited the SUV McDaniels gave the undercover officer a plastic, gallon-sized bag containing marijuana in exchange for $ 1,200 in cash.

After the officer gave a verbal signal, narcotics tactical team members emerged from a nearby black SUV with dark, tinted windows. The officers wore masks over their faces to protect their identities. One team extracted McDaniels, and the other officers surrounded Clowers’s SUV. The first officer to approach the SUV was wearing a black ballistic vest with the word “SHERIFF’ emblazoned on the front and back and a sheriff’s badge on the front. One of the officers told Clowers to: “Get out of the f—king car. Get out of the car. Get on the ground.” As the officers approached, Clowers exited the SUV and ran. One officer loudly instructed Clowers to stop and advised him, “Sheriff’s office, sheriff’s office, stop running.” Clowers continued to run across a busy intersection and behind another gas station, where he was eventually apprehended.

Police searched the SUV that Clowers was driving and found a Wendy’s bag containing 52 grams of marijuana in the center console. The marijuana that McDaniels sold to the undercover officer weighed 339.5 grams. Officers also found marijuana in McDaniels’s possession at the time of his arrest. While interviewing Clowers, one of the officers noted the smell of burnt marijuana about Clowers’s person.

Clowers was arrested and charged with selling marijuana, possessing marijuana with the intent to distribute, and obstruction. He was found guilty on all counts, and he appeals the denial of his subsequent motion for new trial.

1. As an initial matter, we note that Clowers’s arguments in his appellate brief do not track his enumerations of error, in violation of Court of Appeals Rule 25 (c) (1). Furthermore, Clowers has grouped together multiple enumerations into a single argument section.

As we have previously held, Rule 25 (c) (1) is more than a mere formality. It is a requirement which this Court imposes to ensure that all enumerations of error are addressed and to facilitate review of each enumeration. By failing to comply with the rule, [Clowers] has hindered the Court’s review of his assertions and has risked the possibility that certain enumerations will not be addressed.

Nonetheless, we will endeavor to consider his arguments as made in the brief.

2. Clowers contends that the evidence was insufficient to support his convictions. We disagree.

(a) Sale of marijuana and possession of marijuana with the intent to distribute. Clowers contends that the evidence was insufficient to support his conviction for the sale and possession of marijuana with the intent to distribute because the State failed to prove that he had possession of the marijuana with the intent to distribute, that he was a party to the crime of the sale of marijuana, or that he had the intent to commit the crimes. These arguments are without merit.

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

The intention with which an act is done is peculiarly for the jury. It is often difficult to prove with direct evidence an individual’s intent as it existed at the time of the act for which they are being prosecuted. Therefore, it is often necessary to prove such intent through the use of circumstantial evidence. Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this. A jury may infer that a person acted with criminal intent after considering the “words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” [] In order to support a conviction, such circumstantial evidence does not have to exclude every possible hypothesis other than the defendant’s guilt, but only reasonable hypotheses. Whether a hypothesis is reasonable is a question for the jury, and such finding will not be disturbed on appeal unless the guilty verdict is insupportable as a matter of law.

Here, the evidence showed that Clowers drove the vehicle to the controlled buy, backed into the parking spot next to the undercover officer, waited while McDaniels retrieved the 339.5-gram parcel of marijuana, exited the vehicle, and sold it to the undercover officer in an adjacent car, and then fled when officers approached his car and demanded that he exit. Clowers smelled of marijuana when he was arrested, and the officers recovered a bag containing 52 grams of marijuana from the center console of Clowers’s vehicle after his arrest. Construing this evidence in the light most favorable to the verdict,

we conclude that there was sufficient evidence from which the jury could find that [Clowers] had the requisite knowledge and intent to assist with or participate in the crime and that he was, therefore, guilty beyond a reasonable doubt of possession of marijuana with intent to distribute [and the sale of marijuana].

(b) Obstruction. “A person commits the offense of obstruction of an officer when he knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties. Flight after a lawful command to halt constitutes obstruction of an officer.”

Here, the evidence showed that after McDaniels sold the marijuana to the undercover officer, multiple officers surrounded Clowers’s vehicle. At least one of the officers was wearing a black ballistic vest with the word “SHERIFF” emblazoned on the front and back and a sheriff’s badge on the front. After an officer instructed him to exit the vehicle and get on the ground, Clowers got out of his SUV and ran. He continued to run as one officer advised him, “Sheriff’s office, sheriff’s office, stop running,” until he was eventually apprehended behind a nearby gas station. “A rational trier of fact could have found from the evidence that [Clowers] committed the crime of obstruction of an officer.”

3. Clowers contends that we should reverse the trial court’s denial of his motion for a directed verdict because the trial judge erroneously injected his personal observations and opinion and relied thereon in considering the motion. This enumeration presents no basis for reversal.

At the close of the State’s case, defense counsel made a motion for a directed verdict. After hearing argument, the trial court denied the motion outside the presence of the jury, explaining its ruling as follows:

I find that [Clowers’s] suspicious backing in, coupled with his running, coupled with his passenger jumping out, and execution of a drug transaction, coupled with dope left in the car, coupled with something that has not really been mentioned, and that is the odor of this marijuana. This marijuana — of course, there was a small nick in one of the bags yesterday, but even after sealing — and personally, I have helped reseal one of the bags of marijuana — but the odor was still so strong coming through sealed, vacuum [-] sealed bags, one can only imagine what the odor was of the marijuana in a car in July. So I think there is evidence to where a jury could conclude that he certainly was well aware of the great quantities of marijuana, and the fact that his passenger was participating in a drug deal[,] and he was helping therein. I think there’s sufficient evidence to go to the jury on all issues.

Clowers argues in his brief that the trial court’s comments violate OCGA § 17-8-57, which prohibits a judge from “expressing] or intimat[ing] his opinion as to what has or has not been proved or as to the guilt of the accused.” Here, because “the purpose of OCGA § 17-8-57 is to prevent the jury from being influenced[,] and the jury was not present at the time of these remarks, the statute was not violated.”

Further,

[a]fter the jury has returned a verdict of guilty, and the defendant seeks a reversal of his conviction on appeal by arguing either that the trial court erred in failing to direct a verdict of acquittal or denying a motion for new trial on the general grounds, the only question presenting itself to the appellate court is whether there is any evidence to support the verdict. It is the function of the jury, not the appellate court, to determine the credibility of witnesses and weigh any conflicts in the evidence.

As we concluded in Division 2, the evidence was sufficient to support the jury’s verdict in this case. Thus, the trial court did not err by denying Clowers’s motion for a directed verdict.

4. Clowers contends that the trial court erred by excluding certain evidence. We disagree.

(a) Clowers’s statement. Clowers argues that the trial court erred by failing to admit his statement to police that he was not acting in concert with McDaniels and that he had no knowledge of McDaniels’s criminal activity, which was Clowers’s sole defense.

During cross-examination of one of the officers, defense counsel elicited testimony that Clowers made a statement to the officer. When defense counsel asked the officer about the substance of the statement, the State objected, and a bench conference ensued. The bench conference was not recorded by the court reporter, nor was the trial court’s ruling thereon. Thus, Clowers has failed to show any clear ruling by the trial court. “As the appellant, [Clowers] had the burden to affirmatively show error [in] the record. [He has] failed to do so.” Pretermitting Clowers’s failure to demonstrate that the trial court even made such a ruling, we note that

[s] elf-serving declarations, such as [Clowers’s purported] statement, are inadmissible hearsay unless the declarant testifies and is subject to cross-examination. The defendant is allowed to declare his innocence in court; he is not allowed to avoid this opportunity by pre-trial declarations of innocence____That the defendant faces... a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination.

(b) Testimony from officer. Clowers also argues that the trial court erred by sustaining the State’s objection to defense counsel’s inquiry of one of the officers regarding whether the officer had ever backed into a parking space. Clowers, however, failed to provide a citation to the record for such a ruling. Thus, this enumeration presents no basis for reversal. Nonetheless, we note that “[t]he admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” We find no abuse of discretion in excluding the officer’s testimony regarding his own parking habits as irrelevant.

5. Clowers further argues that the trial court erred by denying his motion for new trial on the basis that trial counsel was ineffective. We disagree.

In considering Clowers’s argument,

we apply the two-prong test for determining the validity of a claim of ineffectiveness of counsel established in Strickland v. Washington, [] which asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency. If the defendant cannot satisfy either of the two prongs of the Strickland test, his ineffective assistance claim fails. On appeal of a claim of ineffective assistance, we accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, while we independently apply the legal principles to the facts.

(a) Pretrial investigation/failure to secure evidence and testimony.

(i) Clowers argues that trial counsel was ineffective for failing to secure the trial testimony of his best friend and roommate, Christopher Smith, to support Clowers’s assertion that he had not seen McDaniels in “quite some time” and merely gave him a ride to the gas station. At the motion for new trial hearing, Smith testified that on the day of Clowers’s arrest, Smith and Clowers spoke on the phone about meeting at the mall later in the day and that Smith was unfamiliar with McDaniels. Trial counsel, however, testified that Clowers did not provide Smith’s name to him before trial. Therefore, counsel’s failure to secure Smith’s testimony was not deficient. Further, given the evidentiary proffer, we agree with the trial court that Clowers has failed to demonstrate a reasonable probability that trial counsel’s failure to secure Smith’s testimony affected the verdict.

(ii) Clowers also alleges that trial counsel was ineffective by failing to secure video or to subpoena other friends or family members who could corroborate his assertion that he did not know McDaniels well and merely gave him a ride to the gas station on the day of his arrest. None of these witnesses testified at the motion for new trial hearing, nor did Clowers make a proffer as to what the video — assuming it existed — would have shown. His failure to do so is fatal to this claim. “[Clowers] offered no more than speculation regarding the content of such alleged potential favorable evidence, which is insufficient to sustain a claim of ineffective assistance of counsel.”

(b) Failure to object to the chain of custody. Clowers argues that the State failed to prove the chain of custody of the marijuana tested by the State, and his trial counsel was ineffective in failing to object or argue on this ground.

To show a chain of custody adequate to preserve the identity of fungible evidence, the State must prove with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The State is not required to foreclose every possibility of tampering; it need only show reasonable assurance of the identity of the evidence. We review the trial court’s decision on the adequacy of the chain-of-custody evidence under an abuse-of-discretion standard. . . . [W]here the testimony shows that the police placed the substance in a tamper-proof identifiable container and that the crime lab or other technician who tests the substance received it in the same container with no proof of tampering or substitution, the State has met its burden of showing with reasonable certainty that the substance tested was the same as that seized.

“[A] chain of custody argument goes to the weight and credit a factfinder assigns to the evidence, rather than to its admissibility.”

Here, the State presented testimony that the marijuana was bagged at the scene and placed in an evidence locker, from which it was later removed and tested. According to the witnesses who tested the two batches, they did not appear to be tampered with. Given this evidence, “[c]ounsel was not ineffective ... in failing to make an objection lacking in merit.” Further, trial counsel testified at the motion for new trial hearing that he did not assert an objection to chain of custody because his defense was not that the substance was not in fact marijuana, but instead that it belonged to McDaniels and that Clowers had no knowledge of its existence or the sale. “[C]ounsel’s decisions on which motions and objections to make are matters of trial strategy and tactics that are within the lawyer’s exclusive province and do not amount to ineffective assistance of counsel.”

(c) Other.

Although [Clowers] raises in general terms three more instances of alleged ineffectiveness^] he does not enunciate how any of them satisfies either the deficiency or prejudice prongs of Strickland v. Washington, supra, and we do not see how any of them demonstrate [s] ineffectiveness of trial counsel. That being so, we cannot say he has borne his burden of showing he was denied effective assistance of counsel.

6. Finally, Clowers argues that the trial court erred by engaging in a colloquy with the jury because so doing invaded the province of the jury and improperly influenced the verdict. This enumeration is without merit.

During deliberations, after a question from the jury, the trial court recharged the jury on party to a crime, and then engaged in a brief colloquy with the foreperson regarding possession with intent to sell. After the jury returned to deliberations, the trial court asked the parties if they had any objections, and trial counsel responded:

I’m sure there has to be something. I mean, I believe you addressed my concern with the first part. . . . I’m just, you know, at a loss as to what is going on with the second part here. I had hoped that the closing arguments from both attorneys would have been sufficient to flush [sic] this out.

Decided October 16, 2013.

Hughes & Manning, Holly B. Hughes, F. Renee Regard Rockwell, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, Younker & Oliverio, Adam E. Younker, for appellee.

On appeal, Clowers generally “asserts that the discussion between the jury foreman and the trial court was confusing and left the jury with an incomplete understanding of the necessary elements of the crime.” Clowers fails, however, to specifically point out any incorrect portion of the charge or to clarify how the charge was incomplete, and our review reveals no such errors or omissions. Thus, Clowers has failed to show harm or error in the recharge and colloquy, and this enumeration presents no basis for reversal.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-13-30 (j) (1).

       Id.

       OCGA § 16-10-24 (a).

         (Citations omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        (Punctuation omitted.)Davis v. Foreman, 311 Ga. App. 775, 777 (1) (717 SE2d 295) (2011).

       (Punctuation omitted.) Michael v. State, 281 Ga. App. 289, 291-292 (1) (635 SE2d 790) (2006).

       OCGA § 16-2-6.

       (Punctuation omitted; emphasis in original.) Able v. State, 312 Ga. App. 252, 254 (1) (718 SE2d 96) (2011).

       Id. at 255 (1). See also Maddox v. State, 322 Ga. App. 811, 813 (1) (746 SE2d 280) (2013).

       (Footnote omitted.) Cofield v. State, 304 Ga. App. 165, 168 (3) (695 SE2d 696) (2010) (citing OCGA § 16-10-24 (a)).

       Id. See also Johnson v. State, 264 Ga. App. 889, 891-892 (2) (592 SE2d 507) (2003).

       (Punctuation omitted.)

       (Punctuation omitted.) Lockaby v. State, 265 Ga. App. 527, 528 (1) (594 SE2d 729) (2004). See also Jones v. State, 250 Ga. 498, 499-500 (4) (299 SE2d 549) (1983).

       (Citation and punctuation omitted.) Gregory v. State, 148 Ga. App. 176, 177 (251 SE2d 130) (1978).

       (Punctuation and footnote omitted.) McClellan v. Evans, 294 Ga. App. 595, 599 (3) (669 SE2d 554) (2008).

       (Citations and punctuation omitted.) Parker v. State, 276 Ga. 598(2) (581 SE2d 7) (2003).

       See Dix v. State, 246 Ga. App. 338, 340 (3) (540 SE2d 294) (2000).

       (Punctuation omitted.) Burrowes v. State, 296 Ga. App. 629, 633 (4) (675 SE2d 518) (2009).

       See id.

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

       (Citation and punctuation omitted.) Williams v. State, 319 Ga. App. 888, 889 (739 SE2d 4) (2013).

       See Green v. State, 291 Ga. 287, 297 (10) (d) (728 SE2d 668) (2012).

       Cf. Strickland v. State, 323 Ga. App. 348, 352 (2) (b) (746 SE2d 204) (2013).

       (Punctuation omitted.) Pringle v. State, 281 Ga. App. 230, 234 (2) (b) (635 SE2d 843) (2006). See also Herrington v. State, 285 Ga. App. 4, 5-6 (b) (645 SE2d 29) (2007) (“The failure of trial counsel to employ evidence cannot be deemed to be prejudicial in the absence of a showing that such evidence would have been relevant and favorable to the defendant”) (punctuation omitted).

       (Punctuation and footnote omitted.) Franklin v. State, 281 Ga. App. 409, 411-412 (2) (636 SE2d 114) (2006).

       (Punctuation omitted.) Ross v. State, 313 Ga. App. 695, 698 (1) (c) (722 SE2d 411) (2012).

        Franklin, 281 Ga. App. at 412 (2).

       (Punctuation omitted.) Neal v. State, 308 Ga. App. 551, 555 (4) (d) (707 SE2d 503) (2011).

       Clowers contends in the argument portion of his brief that trial counsel was ineffective by failing to reserve or preserve objections during jury selection; failing to request that closing arguments be taken down by the court reporter; and failing to object or reserve objections to the jury charges. We note that Clowers failed to raise these instances in his enumeration of error.

        Williams v. State, 277 Ga. 853, 859 (6) (f) (596 SE2d 597) (2004).

       See generally Preston v. State, 183 Ga. App. 20, 23 (4) (357 SE2d 825) (1987).


text:
    A13A1401.
    THE STATE v. PICKETT.
    (750 SE2d 177)
   McFadden, Judge.

The state once again appeals the grant of Phillip Pickett’s motion to dismiss his indictment on the ground that the state violated his constitutional right to a speedy trial. Because the trial court did not abuse its substantial discretion, we affirm.

In State v. Pickett, 288 Ga. 674 (706 SE2d 561) (2011), the Supreme Court of Georgia reversed this court’s judgment in State v. Pickett, 301 Ga. App. 251 (687 SE2d 239) (2009), and ruled that we should have vacated and remanded the trial court’s order granting Pickett’s motion to dismiss on speedy trial grounds. The Supreme Court held that the trial court “erred significantly” when analyzing whether Pickett asserted his right to a speedy trial in due course, Pickett, 288 Ga. at 676 (2) (c) (3), and also erred by making a finding about Pickett’s undue anxiety that was not supported by the record. Id. at 678 (2) (c) (4). Upon remittitur, we vacated our earlier opinion, adopted the opinion of the Supreme Court as our own, vacated the trial court’s judgment, and remanded the case for proceedings not inconsistent with the Supreme Court’s opinion. State v. Pickett, 309 Ga. App. 216 (710 SE2d 212) (2011). Upon remand, the trial court again granted Pickett’s motion to dismiss, and the state appeals.

Our review is guided by the Supreme Court’s review of the trial court’s original order. The Supreme Court explained that the trial court properly concluded that the nearly five and one-half year delay between Pickett’s arrest on June 23, 2003, to the grant of his motion to dismiss on December 17, 2008, was presumptively prejudicial, requiring application of the four factors of Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972). Pickett, 288 Ga. at 675 (2) (b).

Those factors are:

(1) whether delay before trial was uncommonly long, (2) whether the government or the criminal defendant is more to blame for that delay, (3) whether, in due course, the defendant asserted his right to a speedy trial, and (4) whether he suffered prejudice as the delay’s result.

Id. at 675 (2) (a) (citation and punctuation omitted). The Supreme Court found no error in the trial court’s application of factors 1 and 2. See id. at 676 (2) (c) (1), (2). But it concluded that the trial court “erred significantly” when analyzing factor 3 — whether Pickett asserted his right to a speedy trial in due course—because it based its analysis on the fact that Pickett could not assert his statutory right to speedy trial for the first three years after his arrest. Id. at 676-677 (2) (c) (3). The Supreme Court held that “Pickett’s inability to assert his statutory right to a speedy trial” did not alter the analysis of whether he exercised his responsibility to assert his constitutional speedy trial claim in due course. Id. at 676 (2) (c) (3) (emphasis in original). Consequently, on remand, the trial court re-analyzed this factor and did not reference the statutory right to speedy trial. It found that although “Pickett waited more than two years and seven months after his indictment to first assert his right, Pickett was on bond and without counsel for almost three years between his arrest and indictment.” Citing the Supreme Court’s Pickett opinion, the trial court held that it had “the discretion to mitigate the weight given this factor when a defendant fails to assert his right during the period between arrest and indictment if he was out on bond and without counsel.” Pickett, 288 Ga. at 676 (2) (c) (3). It thus weighed the factor against Pickett but not heavily.

The Supreme Court held that one of the trial court’s factual findings used in its analysis of factor 4 — whether Pickett suffered prejudice as the delay’s result — was not supported by the record. Pickett, 288 Ga. at 678 (2) (c) (4). Accordingly, on remand, the trial court eliminated from its consideration of actual prejudice its finding that Pickett could not obtain a professional job because of the pending child molestation charges, the factual finding that the Supreme Court held was unsupported. The trial court still considered its other factual finding regarding actual prejudice — that Pickett suffered undue anxiety from not having any contact with his children for more than five-and-a-half years because of his bond condition — because the Supreme Court expressly held this finding to be “supported by the record and within the trial court’s discretion.” Id. (citation omitted). The trial court also again presumed prejudice from the length of pretrial delay, because the Supreme Court held that it had not abused its discretion in doing so the first time. Id. at 677 (2) (c) (4).

Decided October 17, 2013.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellant.

Ashleigh B. Merchant, Marilyn Primovic, for appellee.

The trial court then re-balanced the four factors, concluding that “the overall balancing of these factors weighs in Pickett’s favor.” It held that the only factor that weighed against Pickett is the assertion - of-the-right factor, but Pickett’s failure to assert his right in due course was mitigated by the fact that he was on bond and did not have an attorney for nearly three years prior to indictment. The trial court concluded that “on balance, the Barker factors demonstrate that Pickett’s constitutional speedy trial rights were violated” and accordingly granted his motion to dismiss.

We hold that the trial court correctly followed the Supreme Court’s directive and did not abuse its “substantial discretion in applying the Barker balancing test.” Pickett, 288 Ga. at 679 (2) (d) (citations omitted). We therefore affirm.

Judgment affirmed.

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


text:
    A13A0930.
    ROYAL v. PULASKI STATE PRISON.
    (750 SE2d 179)
   BARNES, Presiding Judge.

Sherri Royal appeals the superior court’s order affirming the decision of the Appellate Division of the State Board of Workers’ Compensation, which had in turn adopted the findings and conclusions of the administrative law judge (“AL J”). Royal contends that the superior court erred in affirming the Appellate Division because the Division “ignored the Employer’s action of terminating Ms. Royal because of her work restriction that arose out of her compensable work injury.” Because the record contains some evidence to support the Appellate Division’s denial of benefits, we affirm the superior court’s order.

In reviewing a workers’ compensation award, both the appellate court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division of the State Board of Workers’ Compensation. It is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding.

(Citation and punctuation omitted.) Ray Bell Constr. Co. v. King, 281 Ga. 853, 854 (642 SE2d 841) (2007). “[EJrroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, are subject to a de novo standard of review.” (Citation omitted.) Trax-Fax, Inc. v. Hobba, 277 Ga. App. 464, 464 (627 SE2d 90) (2006). The Workers’ Compensation Act provides that an injured worker must miss seven or more days of work before she is entitled to receive income benefits. OCGA § 34-9-220. If the employee subsequently seeks income benefits, her claim requires “a hearing on all issues as opposed to a change-in-condition hearing.” (Citation omitted.) Diamond Rug & Carpet Mills v. Moses, 221 Ga. App. 807, 809, n. 1 (472 SE2d 565) (1996).

In this case, Royal sought temporary total disability income benefits beginning May 13, 2008, medical treatment, attorney fees, and penalties, contending that a compensable work-related injury on March 19, 2008 impaired her earning capacity. The parties stipulated to the ALJ that Royal sustained an injury to her lungs on March 19, 2008 by inhaling chlorine bleach fumes in the course of her employment at the Pulaski State Prison, which temporarily aggravated her pre-existing asthma and caused her to cough uncontrollably. She was treated at a nearby emergency room and released a few hours later. The employer accepted Royal’s workers’ compensation claim as medical-only and paid the emergency room bill and other medical bills. Royal did not work for five days following the exposure, then returned to work as scheduled on March 28, 2008.

Royal testified that she worked for six days, through April 17, 2008, then saw her family doctor on April 18, 2008, because she was not feeling well. He diagnosed her with pneumonia and admitted her to the hospital for four days. On May 12, 2008, her physician released her to return to work with a work restriction of having to avoid strong chemical fumes due to a sensitivity, but after two-and-a-half hours at work the next day, the employer advised her it could not accommodate her restriction and sent her home.

The employer controverted medical payments beginning with Royal’s hospitalization on April 18, 2008 for pneumonia, contending that the treatment was unrelated to her work-related injury. Royal remained on leave with pay through December 15, 2008, then was placed on leave without pay for 12 months, until December 17, 2009, when she was separated for failing to return from a leave of absence.

Royal asserted that she was entitled to continuing medical benefits beginning with her April 18, 2008 hospitalization for pneumonia, and to temporary total disability income benefits because her sensitivity to strong chemical fumes was caused by her March 18, 2008 exposure to chlorine bleach fumes. In response, her employer argued that Royal had recovered from the chemical exposure when she returned to work on March 28, 2008 after her treating physician cleared her to do so without restrictions, and that any subsequent disability was related to pre-existing conditions that were not work-related.

In determining whether Royal was entitled to income benefits and additional medical benefits due to her work-related injury, the ALJ considered Royal’s medical history before and after her exposure to chlorine fumes in March 2008. The ALJ noted that Royal left work in 2005 after inhaling bleach fumes but returned to work the following day after receiving medical treatment. She had been treated by an ear, nose, and throat doctor (ENT) for chronic coughing in September and October 2007, treated for chronic bronchitis in January 2008, and had numerous other long-standing ailments.

The ALJ also considered reports and records from several doctors who had either treated Royal, examined her, or reviewed her medical history, including the ENT, Royal’s family doctor, an “internal medicine and pulmonary specialist,” a pulmonologist, and a neurologist-psychiatrist, as well as a report from an environmental medicine specialist who had reviewed Royal’s records. After reviewing the evidence, the ALJ determined that Royal had not met her burden of proving by a preponderance of the evidence that she was disabled from April 18 to May 12, 2008 or that she experienced an economic disability from May 13, 2008 onward as a result of her March 2008 inhalation injury.

While the record contains evidence that could have supported a different conclusion, it also contains a substantial amount of evidence supporting the ALJ’s conclusion. The ALJ noted that Royal’s family doctor released her to work without restrictions on March 24, 2008, and that she worked from March 28,2008 to April 17,2008. When she saw the ENT on April 18, 2008 for severe coughing and wheezing, an x-ray revealed she had pneumonia and she was admitted to the hospital for four days. She improved and was discharged, and the ENT referred her back to her family doctor. The ALJ noted that, contrary to the parties’ stipulations, Royal told her family doctor on May 5, 2008 that she had not worked since her exposure to bleach fumes on March 18, 2008. The family doctor concluded that the exposure had exacerbated Royal’s chronic cough caused by reflux, which caused aspiration and pneumonia, and that an x-ray showed that the pneumonia had cleared. He released her to return to work on May 12, 2008 with a work restriction due to her being “allergic (sensitive) to inhaled chemical fumes especially strong bleach.” On May 28, 2008, the ENT reported that Royal was disabled from the exposure from March 21 to 24, 2008, but that following her hospitalization for pneumonia in April 2008, she was able to return to work on May 9, 2008.

The ALJ found that Royal had misrepresented her medical history to an examining pulmonologist in November 2008, which caused the pulmonologist to change his opinion from believing that Royal had reactive airway dysfunction caused by her March 2008 exposure to believing Royal had experienced only a temporary aggravation of pre-existing asthma. The pulmonologist also tested her lung function in November 2008 and concluded it was normal, as was a June 2008 lung function test he reviewed. He did not think her April 2008 pneumonia was related to her bleach exposure.

A psychiatrist who examined Royal in September 2009 concluded that the exposure exacerbated Royal’s pre-existing reactive airway disease and bronchitis, but the ALJ noted that the history Royal gave the doctor contradicted her testimony about her ability to use strong cleaning fluids before and after the exposure. Royal told a different pulmonologist in June 2008 that she never had a coughing problem before the exposure but since then she had significant coughing and was on disability leave. That physician diagnosed acute bronchitis that was likely caused by a number of factors that could include reflux, exposure to bleach, and asthma. A sleep study in July 2008 revealed severe obstructive sleep apnea. An environmental medicine specialist reviewed Royal’s medical records and concluded that the exposure caused chemically-induced pneumonitis and bronchial reactivity, which led to the development of a hypersensitivity to chlorine.

The ALJ found that Royal’s treating physician released her to return to work on March 24,2008, and the parties stipulated that she returned to work on her next scheduled work day on March 28, 2008. She worked until April 18, 2008, when she was hospitalized for pneumonia by her family doctor, who along with the ENT kept Royal out of work until May 12, 2008. After reviewing disparities in Royal’s medical history and her doctors’ work releases, the ALJ concluded that the exposure did not cause Royal’s period of disability from April 18 to May 12,2008. The ALJ also concluded that the medical evidence indicated Royal had no permanent impairment to her lung functions or economic disability as a result of the March 2008 exposure, and that any disability she suffered was more likely caused by her sleep apnea, chronic bronchitis or asthma, high blood pressure, and diabetes.

The Appellate Division noted that the ALJ was in the best position to determine the credibility and weight of the evidence in the record and adopted the ALJ’s findings of fact, conclusions of law, and award. Similarly, after noting that its standard of review was whether any evidence authorized a finding for the party prevailing before the Appellate Division, the superior court affirmed the Division’s decision. In the face of conflicting evidence about whether the appellant’s exposure to bleach fumes exacerbated a pre-existing condition to the extent that she became disabled, the factfinder weighed the evidence and concluded that it did not. The Appellate Division adopted the ALJ’s facts and legal conclusions, and the superior court properly determined that the decision to deny benefits was supported by evidence in the record.

Royal argues that in this case, the ALJ misapplied the law to the facts, basically arguing that she had no restrictions before her exposure to chlorine fumes, that her exposure caused her to become sensitive to strong chemical fumes, and that the employer is required either to accommodate her restrictions or pay her benefits.

OCGA § 34-9-1 (4) defines injury, in part, to include

the aggravation of a preexisting condition by accident arising out of and in the course of employment, but only for so long as the aggravation of the preexisting condition continues to be the cause of the disability; the preexisting condition shall no longer meet this criteria when the aggravation ceases to be the cause of the disability.

Decided October 18, 2013.

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

Samuel S. Olens, Attorney General, Kimberly R Reaves, Assistant Attorney General, for appellee.

Accordingly, once the aggravation of a pre-existing condition has ceased to be disabling, it is no longer compensable. See, e.g., Smith v. Mr. Sweeper Stores, 247 Ga. App. 726, 728 (1), n. 10 (544 SE2d 758) (2001); Worthington Indus. v. Sanks, 228 Ga. App. 782, 783-784 (2) (492 SE2d 753) (1997).

Here, the doctor released Royal to regular duty work as of March 24, and she did, in fact, perform her regular job until April 17. This constituted evidence that the aggravation caused by the March 18 incident had ceased to be disabling. While the appellant would have us reconsider that evidence and come to a different conclusion, under our standard of review we cannot do so. Because the record contains some evidence supporting the ALJ’s conclusions, which were adopted by the Appellate Division, the superior court did not err in affirming the Appellate Division.

Judgment affirmed.

Miller and Ray, JJ., concur.

       Documents in the record refer to both March 18, 2008 and March 19, 2008 as the date of injury; for consistency, we will refer to the date as March 18, 2008.

       On July 9, 2010, an administrative law judge for the Social Security Administration’s Office of Disability Adjudication and Review determined that Royal was disabled from severe asthma, obstructive sleep apnea, obesity, and diabetes beginning March 19, 2008. The Social Security ALJ found that, while Royal had the residual functional capacity to perform sedentary work, she was unable to work eight hours a day or forty hours a week on a regular basis.