author: Blackwell, Judge.

text:
    A12A0303.
    CANTON PARTNERS v. THE SCARBROUGH GROUP, INC. et al.
    (728 SE2d 733)
   Blackwell, Judge.

It has been said that no good deed goes unpunished, and the proceedings up to now in this case seem to suggest the truth of that proposition. Canton Partners owns a parcel of real property in Troup County that is effectively landlocked and to which Canton Partners has no means of access, ingress, or egress. The parcel abuts an interstate highway,* and it otherwise is surrounded by property that is owned by United Investment Company. The nearest public road from which Canton Partners might access its property is State Route 54, and to do so, it would have to cross the property of United Investment, as well as a tract of land that is owned by The Scarbrough Group, Inc. Rather than run straight to the courthouse, Canton Partners first set out to negotiate with United Investment and Scarbrough for a private way across their lands, and its negotiations with Scarbrough were somewhat successful, inasmuch as it obtained a temporary, one-year private way across the Scarbrough tract. The negotiations with United Investment, however, were not as successful, and at that point, Canton Partners turned to the courts for help, only to find that help was not forthcoming because it had successfully negotiated with Scarbrough before suing.

Under OCGA § 44-9-40, when someone owns real property to which he “has no means of access, ingress, and egress,” and when “a means of ingress, egress, and access may be had over and across the lands of any private person or corporation,” the owner of the landlocked property may file a petition with the superior court for a private way, and if it is reasonable to do so, the superior court may condemn a private way over the lands of the others. OCGA § 44-9-40 (b). When its negotiations with United Investment failed, Canton Partners filed such a petition against United Investment, seeking the condemnation of a private way across the United Investment land to link its landlocked parcel with its temporary way over the Scar-brough tract, which would allow Canton Partners to access its property from State Route 54, at least as long as it maintained a right to use the temporary way over the Scarbrough tract. The superior court concluded, however, that the condemnation of a private way across the United Investment property would be unreasonable, inasmuch as the condemnation would be permanent, whereas the negotiated way across the Scarbrough tract was only temporary. Accordingly, the superior court refused the petition against United Investment.

Instead of appealing the refusal of its petition, Canton Partners filed a second one, this time filing against both United Investment and Scarbrough and seeking the condemnation of a private way across both of their properties. The second petition, however, fared no better than the first. The court below dismissed the second petition as to Scarbrough, finding

as a matter of law that [Canton Partners] may not maintain an action to [condemn a way across the Scarbrough tract] when it currently has an existing right to use the identical property for [a means of access] by means of an access easement that was voluntarily bargained for and agreed upon by the parties.

The court below also dismissed the second petition as to United Investment, reasoning that nothing had changed since the dismissal of the first petition, and as against United Investment, the second petition was, therefore, barred by the principle of res judicata. Canton Partners appeals from the dismissal of its second petition, and we reverse.

1. As we understand it, the court below essentially concluded that Canton Partners was without standing under OCGA § 44-9-40 to petition for a private way across the Scarbrough tract because Canton Partners had a temporary, negotiated way across the same tract when it filed its second petition. This conclusion, we think, was error. By the plain terms of the statute itself, one properly may bring a petition under OCGA § 44-9-40 “[w]hen [he] owns real estate or any interest therein to which [he] has no means of access, ingress, and egress” and “when a means of ingress, egress, and access may be had over and across the lands of any private person or corporation.” OCGA § 44-9-40 (b). When Canton Partners filed its second petition, it had an existing right to cross over the lands of Scarbrough, but an exercise of that right would take Canton Partners only partway from State Route 54 to its landlocked parcel. It still could not cross the United Investment property, and the landlocked parcel was, therefore, still without a “means of access, ingress, and egress.” The lack of a “means of access, ingress, and egress” could be remedied by a way “over and across the lands” of United Investment and Scarbrough. Canton Partners alleged all these things in its petition, and under the plain terms of the statute, the petition adequately established the standing of Canton Partners to pursue a condemnation against Scarbrough. OCGA § 44-9-40 (b); see generally Hensley v. Henry, 246 Ga. App. 417, 419 (1) (541 SE2d 398) (2000); Mallory v. Upson County Bd. of Education, 163 Ga. App. 377 (1) (294 SE2d 599) (1982).

That is not to say that the existence of a temporary way across the Scarbrough tract necessarily is irrelevant to the ultimate disposition of the petition. Upon consideration of the reasonableness of condemning a way over the Scarbrough tract, the court below perhaps might have weighed the existence of a negotiated way against the reasonableness of a condemnation. By the same token, however, the temporary nature of the negotiated way — and the fact that its expiration was, by the time the court dismissed the second petition, imminent and only a few weeks away — perhaps might have been weighed in favor of condemnation. We need not decide such things in this appeal because it appears that the court below never reached the question of whether a condemnation of a way over the Scarbrough tract was reasonable and instead dismissed the petition for want of standing. That decision was erroneous, and the dismissal of the petition as against Scarbrough must be reversed.

2. The court below also erred when it dismissed the second petition as against United Investment on grounds of res judicata. Generally speaking, the doctrine of res judicata forbids the litigation of a dispute that already has been litigated by the same parties and decided. See OCGA§ 9-12-40. “In order for the doctrine to apply, three prerequisites must be satisfied: (1) identity of the parties or their privies; (2) identity of the cause of action; and (3) previous adjudication on the merits by a court of competent jurisdiction.” Rafizadeh v. KR Snellville, LLC, 280 Ga. App. 613, 617 (3) (634 SE2d 406) (2006) (citation omitted). We conclude that res judicata has no application in this case because the question presented in the second petition as to United Investment is materially different from the question presented in the first petition, and there is, therefore, no identity of the cause of action.

The question presented by the first petition was whether it is reasonable to condemn a private way across the land of United Investment to link the landlocked parcel with a temporary way over the Scarbrough tract or, put another way, whether it is reasonable to work a permanent condemnation that would only temporarily ensure a means of access to the landlocked parcel. The question presented by the second petition, however, is whether it is reasonable to condemn a private way across the lands of both United Investment and Scarbrough to permanently secure a means of access to the landlocked parcel. Those are, we think, materially different questions, and for that reason, res judicata simply does not apply here. See Morrison v. Morrison, 284 Ga. 112, 115 (3) (663 SE2d 714) (2008) (“The fact that the subject matter of different lawsuits may be linked factually does not mean that they are the same cause within the meaning of OCGA § 9-12-40. For that doctrine to act as a bar, the cause of action in each suit must be identical”) (citations and punctuation omitted). Accordingly, we reverse the judgment below and remand for further proceedings consistent with this opinion.

Decided May 25, 2012.

Webb, Klase & Lemond, Edward A. Webb, G. Franklin Lemond, Jr., for appellant.

Willis, McKenzie, Degennaro & Alford, Charles J. Willis, Mark L. Degennaro, for appellee.

Judgment reversed and case remanded.

Mikell, P. J., and Miller, J., concur.

       Canton Partners cannot, of course, just cut a driveway to its parcel from the interstate highway, and no one in this case suggests that it could do so.

       The Scarbrough tract is situated between State Route 54 and the United Investment property.

       After its original petition was refused in the Superior Court of Troup County, Canton Partners filed its second petition in the Superior Court of Fulton County. On the motion of United Investment and Scarbrough, however, the second petition was transferred to the Superior Court of Troup County, which subsequently entered the judgment from which this appeal was taken.

       The court helow did not use the word “standing,” but it did say that, in the circumstances presented here, Canton Partners “may not maintain an action” against Scarbrough. That sounds to us like standing.

       According to the terms of OCGA § 44-9-40 (b), condemnation is per se unreasonable if “it appears that the condemnor owns a right of access, ingress, and egress to his property over another route or owns an easement to a right of private way over another route . . . which alternate route affords such person or corporation a reasonable means of access, ingress, and egress . . . .” But because the temporary private way over the Scarbrough tract did not alone afford Canton Partners “a reasonable means of access, ingress, and egress” to its landlocked parcel, condemnation of a private way in this case does not appear to be per se unreasonable. Whether it is otherwise unreasonable is for the court below to determine on remand and something about which we offer no opinion.

       United Investment concedes that this was the issue presented in the first petition. Indeed, in its brief on appeal, it says: “[Canton Partners’s] true complaint is that it could not again litigate the issue, decided adversely to it in the first action, that it could maintain an action to permanently take [United Investment’s] property when it had only a temporary right to get to [United Investment’s] property by way of the temporary Scarbrough easement.”

       Res judicata may also apply to preclude the litigation of claims that “could have been adjudicated” between the same parties in a prior action. See Body of Christ Overcoming Church of God, Inc. v. Brinson, 287 Ga. 485, 486 (696 SE2d 667) (2010). That said, United Investment does not appear to contend in this case that Canton Partners could or should have joined and sought condemnation as against Scarbrough in the first petition. To the contrary, United Investment disputes that it ever insisted “that Scarbrough be made a party to that action,” and it argues that adding Scarbrough to the first petition would have been futile because the existence of the temporary way absolutely bars any condemnation action against Scarbrough. That argument, of course, is misplaced, as we explained in Division 1. Because the application of res judicata was premised below, and is defended on appeal, on the ground that the questions presented in the first and second petitions are identical — a premise that we reject — we have no occasion in this appeal to decide whether res judicata might properly have been premised on the ground that the distinct question presented in the second petition could and should have been raised in the first.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A12A0471.
    MABRA et al. v. SF, INC. et al.
    (728 SE2d 737)
   Andrews, Judge.

Ronald E. Mabra, Sr., and All-Pro Foodservice, Inc. filed suit against various defendants asserting claims for tortious interference with existing and prospective business and contractual relations, and conspiracy to tortiously interfere with those relations. Mabra and All-Pro appeal from the trial court’s order dismissing their complaint pursuant to OCGA § 9-11-12 (b) (6) for failure to state a claim. For the following reasons, we affirm.

Under OCGA§ 9-11-12 (b) (6),

[a] motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

(Citation and punctuation omitted.) Stendahl v. Cobb County, 284 Ga. 525 (668 SE2d 723) (2008). Applying these standards, we find that the trial court properly granted motions by all the named defendants to dismiss the complaint, as amended, for failure to state a claim because the tortious interference and conspiracy claims were predicated on allegations showing that the defendants were engaged in privileged business activity and were not liable as a matter of law.

The three-count complaint (a renewal of a previously filed action) alleged in Counts 1 and 2 that defendant Host International, Inc. tortiously interfered with existing and prospective business and contractual relations arising from a contract that Mabra and All-Pro had with Avendrá, LLC, under which Mabra and All-Pro distributed fresh produce to various businesses including to Host for Atlanta airport concessionaires. Although the complaint alleged that Host was not a party to Mabra and All-Pro’s distribution contract with Avendrá, it alleged that Host interfered with the contract when Host stopped ordering produce for distribution from Mabra and All-Pro and instead ordered produce for distribution from the other named defendants, SF, Inc., d/b/a Collins Wholesale Produce; Collins Brothers Corporation, d/b/a Collins Brothers Produce; and Future Management Corporation, d/b/a Phoenix Wholesale Foodservice (collectively referred to as the Collins defendants). According to the complaint, when Host did this, it unfairly took Avendrá’s distribution business away from Mabra and All-Pro and gave it to the Collins defendants. The complaint alleged that Mabra and All-Pro received written notice from Host on November 4, 2005, “that their distribution services at the Airport were being terminated within thirty (30) days”; that Host offered no explanation “for unilaterally terminating their distribution services at the Airport without prior authorization, permission or approval from Avendrá as the other party to the distribution contract at issue”; and that “[o]n December 6, 2005, [Host] stopped ordering fresh produce from [Mabra and All-Pro] for Airport concessionaires despite the fact that [Mabra/All-Pro] was still under contract with Avendrá and performing in good faith.” The complaint further alleged that within a month Host began using the Collins defendants to distribute produce to its airport concessionaires, and that the Collins defendants did not qualify as minority-owned businesses to distribute produce at the airport under the City of Atlanta’s Equal Business Opportunity program. According to the complaint, Host “conspir[ed] with [the Collins defendants] to steal Airport produce business derived from [Mabra and All-Pro’s] distribution contract with Aven-drá ... without legal justification or excuse.” Count 3 of the complaint alleged that the decision by Host to order produce to be distributed by the Collins defendants instead of by Mabra and All-Pro was a conspiracy undertaken “in concert with [the Collins defendants] and constitutes a common scheme among all defendants to tortiously interfere with [Mabra and All-Pro’s] contractual business relationship with Avendrá.”

Asserting that the complaint alleged privileged business activity which provided no basis for the tortious interference and conspiracy claims, Host and the Collins defendants moved to dismiss the complaint for failure to state a claim. In response to the motions to dismiss, Mabra and All-Pro amended the complaint. The amended complaint similarly alleged that “[o]n or about November 4, 2005, [Host] induced Avendrá to terminate its [produce] distribution contract with [Mabra and All-Pro]” when Host stopped ordering produce from Mabra and All-Pro for distribution to airport concessionaires and within a month started placing produce orders with the Collins defendants in violation of the City of Atlanta’s Equal Business Opportunity program. According to the three-count amended complaint, this constituted tortious interference by Host and the Collins defendants with Mabra and All-Pro’s actual and prospective contractual relations with Avendrá (Counts 1 and 2), and a conspiracy between Host and the Collins defendants to steal Mabra and All-Pro’s distribution business with Avendrá and tortiously interfere with their actual and prospective contractual relations with Avendrá (Count 3). In an apparent attempt to counter claims that the alleged tortious interference was predicated on allegations of privileged business activity, the amended complaint added the following allegations:

[N]one of the named defendants were parties to a preexisting network of business relationships that gave rise to Plaintiffs’ distribution contract with Avendrá. Moreover, none of the named defendants were either actual parties to Plaintiffs’ distribution contract with Avendrá or third-party beneficiaries of the same. Finally, none of the named defendants had any economic interest in Plaintiffs’ distribution contract with Avendrá.

In response, Host and the Collins defendants asserted that the factual allegations in the amended complaint still showed that the tortious interference claims were predicated on privileged business activity and again moved to dismiss for failure to state a claim.

To recover on a claim of tortious interference with contract or business relations, a plaintiff must prove the following elements:

(1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of contractual obligations or caused a party or third part[y] to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and (4) the defendant’s tortious conduct proximately caused damage to the plaintiff.

Tidikis v. Network for Med. Communications &c., 274 Ga. App. 807, 812 (619 SE2d 481) (2005). To establish under the first element that the defendant acted “without privilege,” the plaintiff must show that the defendant was a stranger to the contract or business relation at issue. ASC Constr. Equip. USA v. City Commercial Real Estate, 303 Ga. App. 309, 313 (693 SE2d 559) (2010). Under the so-called “stranger doctrine,” “only a stranger to both the contract at issue and the business relationship giving rise to and underpinning the contract may be liable for tortious interference [with the contract or the relationship].” (Citation and punctuation omitted.) Perry Golf Course Dev. v. Housing Auth. of the City of Atlanta, 294 Ga. App. 387,390 (670 SE2d 171) (2008); Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 608-610 (503 SE2d 278) (1998). “One is not a stranger to the contract just because one is not a party to the contract____” Id. at 608. Those who have a direct economic interest in or would benefit from a contract with which they are alleged to have interfered (even though not intended third-party beneficiaries of the contract) are not strangers to the contract and cannot have tortiously interfered. Id. at 609. Moreover, “all parties to an interwoven contractual arrangement are [not strangers and therefore] not liable for tortious interference with any of the contracts or business relationships.” Id. at 609-610.

The tortious interference claims and the related conspiracy claims in both the complaint and the amended complaint were predicated on factual allegations that, even though Host was not a party to the produce distribution contract between Mabra and All-Pro and Avendrá, Host terminated or induced termination of the contract when it stopped ordering produce to be distributed by Mabra and All-Pro and subsequently ordered produce to be distributed by the Collins defendants. These factual allegations showed that Host had a direct economic interest in or benefitted from the contract at issue, and therefore Host was not a stranger to the contract or the business relationship. The trial court was not required to accept as true the additional allegation in the amended complaint that “none of the named defendants had any economic interest in Plaintiffs’ distribution contract with Avendrá.” Though couched as a factual allegation, this constituted a mere legal conclusion that Host and other defendants had no economic interest in the contract sufficient to qualify them as nonstrangers whose actions were privileged. No facts were alleged to support this conclusion. To the contrary, the factual allegations in the amended complaint compel the opposite legal conclusion that Host was not a stranger to the contract; that its alleged actions were privileged for purposes of the tortious interference claims; and that, as a matter of law, Host could not be liable on those claims. Perry Golf, 294 Ga. App. at 390; Atlanta Market, 269 Ga. at 608-610. In considering a motion to dismiss for failure to state a claim, the trial court is required to take the factual allegations in the complaint as true. Brantley v. Dept. of Human Resources, 271 Ga. 679, n. 3 (523 SE2d 571) (1999). But in the absence of any specifically pled facts to support what amounted to a legal conclusion couched as fact, the trial court was not required to accept this conclusion as true. Novare Group, Inc. v. Sarif 290 Ga. 186, 191 (718 SE2d 304) (2011) (applying this rule in the context of a judgment on the pleadings); see Papasan v. Attain, 478 U. S. 265, 286 (106 SC 2932, 92 LE2d 209) (1986) (in considering a motion to dismiss for failure to state a claim, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). Because Host was not a stranger and acted with privilege when it changed distributors from Mabra and All-Pro to the Collins defendants, it follows that the Collins defendants could not have tortiously interfered, as alleged, by accepting the distribution business that Host obtained by privileged action. Additional allegations that the Collins defendants did not qualify as minority-owned businesses under the City of Atlanta’s Equal Business Opportunity program did not provide a basis for the tortious interference claims. Without any basis in law for the underlying tortious interference claims against Host and the Collins defendants, the allegations that Host and the Collins defendants conspired to tortiously interfere do not set forth an independent cause of action. Savannah College of Art & Design v. School of Visual Arts &c., 219 Ga. App. 296, 297 (464 SE2d 895) (1995).

A complaint may be dismissed on motion [for failure to state a claim] if clearly without any merit; and this want of merit may consist in an absence of law to support a claim of the sort made, or of facts sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim.

(Citation and punctuation omitted.) Poole v. City of Atlanta, 117 Ga. App. 432, 434 (160 SE2d 874) (1968); see Novare Group, 290 Ga. at 191 (authorizing judgment on the pleadings where undisputed facts in the pleadings established that the movant was entitled to judgment as a matter of law). Based on factual allegations in the amended complaint showing that Host was not a stranger to the contract and took privileged action, the trial court properly dismissed the amended complaint for failure to state a claim because it disclosed as a matter of law that Mabra and All-Pro would not be entitled to the relief sought against the defendants under any state of provable facts or evidence that could be introduced within the framework of the complaint. LaSonde v. Chase Mtg. Co., 259 Ga. App. 772, 774 (577 SE2d 822) (2003); Perry Golf, 294 Ga. App. at 390-391.

Decided May 25, 2012.

Turkheimer & Hadden, John D. Hadden, for appellants.

Weinberg, Wheeler, Hudgins, Gunn & Dial, David A. Dial, Lindsay M. Gatling, Drew, Eckl & Farnham, Joseph C. Chancey, Gary D. Beelen, for appellees.

Judgment affirmed.

Boggs, J., concurs. Doyle, P. J., concurs in judgment only.

       A motion for judgment on the pleadings, without the introduction of affidavits, depositions or interrogatories in support of the motion, is the equivalent of a motion to dismiss a complaint for failure to state a claim. McCobb v. Clayton County, 309 Ga. App. 217 (710 SE2d 207) (2011).


text:
    A12A0601.
    LEWIS v. LEWIS.
    (728 SE2d 741)
   Blackwell, Judge.

Bethany Lewis appeals from the dismissal of her petition under the Family Violence Act, OCGA § 19-13-1 et seq., in which she sought a protective order against Willie M. Lewis, Jr., her estranged husband. We conclude that the court below erred when it found that, to obtain such a protective order, Bethany was absolutely required as a matter of law to show that her husband had committed a “reasonably recent” act of family violence against her. Accordingly, we vacate the dismissal of her petition and remand for further proceedings consistent with this opinion.

The undisputed evidence shows that Willie and Bethany were married in March 2007, and their marriage soon became marked by harassment, threats, and violence, directed by Willie toward Bethany. They separated in July 2010, following an incident in which Willie attacked and choked Bethany and threatened to kill her. At that time, Bethany moved to a new residence, the location of which she attempted to keep from Willie. Nevertheless, Willie eventually located the new residence, and on more than one occasion, he appeared at the residence unannounced and proceeded to harass and threaten Bethany. In October 2010, Willie appeared at the residence, where Bethany was in the driveway, putting their four young children into her car. After assaulting Bethany, Willie drove off with her car and the children, leaving Bethany with an injured arm and a cut on her abdomen. Bethany then took out a warrant for his arrest. In the aftermath of this incident, Willie agreed to stay away from her residence and to refrain from contacting her except with respect to visitation with their children, and he moved to another state.

Willie moved back to Georgia in or around March 2011, at which time Bethany moved to another residence and again attempted to keep her address from Willie. On July 18, however, Willie came to Bethany’s new home, enraged because he had been served with a lawsuit for child support. Bethany testified that, based on her past experience with Willie, she feared that he was about to become physically violent toward her, mostly “because of the look on his face and his demeanor.” Bethany further explained that, based on comments Willie had made to her about his child support payments to another woman with whom he had fathered a child, she believed that Willie would attack her physically if and when he was ordered to pay child support. On July 20, therefore, Bethany applied for and obtained an ex parte temporary protective order under OCGA § 19-13-3 (b). A few days later, the court below convened a hearing to consider whether the order should be extended for 12 months. At the conclusion of that hearing, the judge stated that, although she found Bethany’s testimony regarding Willie’s history of violence “extremely credible,” she nevertheless was constrained to dismiss the petition for a protective order because Bethany had failed to meet her statutory burden of proof. Specifically, the judge noted that Bethany could not show a “reasonably recent” incidence of family violence, inasmuch as Willie’s most recent physical assault against her had occurred almost a year earlier. Bethany then filed an application for discretionary appeal, which this Court granted, and this appeal followed.

The grant or denial of a motion for a protective order lies within the sound discretion of the trial court, and its decision on such a motion will not be reversed absent an abuse of that discretion. Pilcher v. Stribling, 282 Ga. 166, 167 (647 SE2d 8) (2007). An abuse of discretion occurs where a ruling “is unsupported by any evidence of record or where that ruling misstates or misapplies the relevant law.” Mathis v. BellSouth Telecommunications, 301 Ga. App. 881, 881 (690 SE2d 210) (2010). See also Watson u. Elberton-Elbert County Hosp. Auth., 229 Ga. 26, 27 (1) (189 SE2d 66) (1972) (a ruling of the trial court which is within the court’s discretion will be reversed where it “is based upon an erroneous view of the law”). On appeal, Bethany asserts that the statute under which she sought a protective order, OCGA § 19-13-3, does not absolutely require her to show a “relatively recent” act of family violence. Consequently, she argues, the court below abused its discretion when it found that her inability to show a “relatively recent” act of physical violence against her by Willie precluded her from satisfying the statutory requirements for a protective order. We agree.

In pertinent part, OCGA § 19-13-3 provides as follows:

(b) Upon the filing of a verified petition in which the petitioner alleges with specific facts that probable cause exists to establish that family violence has occurred in the past and may occur in the future, the court may order such temporary relief ex parte as it deems necessary to protect the petitioner or a minor of the household from violence. . . .
(c) Within ten days of the filing of the petition under this article or as soon as practical thereafter, but in no case later than 30 days after the filing of the petition, a hearing shall be held at which the petitioner must prove the allegations of the petition by a preponderance of the evidence as in other civil cases. . . .

(Emphasis supplied.) The plain language of the statute requires that the petitioner allege and prove by a preponderance of the evidence that the person against whom the protective order is sought has engaged in family violence at some unspecified time in the past and that he may engage in such violence again at some unspecified time in the future. There simply is no requirement that any past act of family violence alleged in the petition be “reasonably recent.” The recency of past violence may, of course, bear upon the likelihood of future violence, but a “reasonably recent” act of violence is not absolutely required. After all, there might be a good reason in some cases to believe that past violence, although fairly remote, is now likely to recur, such as, for instance, when someone has been gone far away for a long time but now has returned. Accordingly, by requiring Bethany to show a “reasonably recent” act of family violence by Willie, the court below abused its discretion. For these reasons, we vacate the order dismissing Bethany’s petition for a protective order and remand the case for additional proceedings consistent with this opinion.

Decided May 25, 2012.

Rachel M. Lazarus, David A. Webster, Deborah A: Johnson, Charles R. Bliss, for appellant.

Willie M. Lewis, pro se.

Judgment vacated and case remanded.

Mikell, P. J., and Miller, J., concur.

       Although Willie was present at the hearing on the petition, Bethany was the only witness to testify at that hearing. The trial judge commented at the hearing that Bethany was “extremely credible,” so we accept the truth of her testimony for the purposes of this appeal.

       It appears that Willie mostly abided by this agreement for a time. Bethany did testify, however, that on one occasion in early 2011, while Willie was still living outside of Georgia, Bethany met him with one of their children at a local restaurant. According to Bethany, Willie became enraged when he saw a picture on her cell phone, which depicted a man whom Willie erroneously believed was her boyfriend. Willie became so loud and verbally abusive during the incident that Bethany left the restaurant with her son, fearing that the situation was about to escalate into physical violence. Bethany explained her fear at the hearing below, stating that “just considering the fact that I know him and his history and I know the looks on his face or the — his demeanor.... And I know when I feel threatened. And I felt threatened at that time.”

       It appears that the court helow found the “reasonably recent” requirement in a form order that then was used widely in Gwinnett County in cases involving OCGA § 19-13-3. The form, unlike the statute, purports to require the petitioner to show a “reasonably recent” act of family violence. The form also erroneously requires a petitioner to demonstrate a reasonable likelihood that an act of family violence “may occur in the near future.” (Emphasis supplied.) As the above-quoted language shows, however, the statute only requires a showing that family violence has occurred in the past and that another act may occur “in the future.” The language of a form adopted by a court, no matter how well-intentioned, cannot alter the substantive requirements of a statute enacted by the Georgia General Assembly with the approval of the Governor. See generally Six Flags Over Georgia II v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003) (“Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary hut forbidden.”).


author: McFadden, Judge.

text:
    A12A0026.
    DRYDEN v. THE STATE.
    (728 SE2d 245)
   McFadden, Judge.

This is the second appearance of this case before us. Chanju Dryden now appeals after a second trial from convictions for aggravated assault, reckless conduct and serious injury by vehicle. He argues that the trial court erred by reading the entire indictment —• including certain charges that already had been resolved — to the jury panel prior to selection; that the court erred in admitting similar transaction and res gestae evidence; that the verdicts for aggravated assault and serious injury by vehicle were mutually exclusive; that double jeopardy principles barred his re-indictment; that the trial court erred in failing to instruct the jury on the defense of accident; and that the court erred by refusing to allow him to introduce impeachment evidence. We hold that Dryden has not shown that he was harmed by the trial court’s reading the entire indictment to the potential jurors; the trial court did not err in admitting similar transaction and res gestae evidence; the verdicts were not mutually exclusive; double jeopardy did not bar Dryden’s re-indictment; the court did not err in refusing to instruct the jury on accident; and the evidence Dryden sought to introduce was not relevant. We therefore affirm Dryden’s convictions.

In 2006, Dryden was indicted for aggravated battery, aggravated assault on a peace officer, serious injury by vehicle based upon reckless driving, possession of marijuana with intent to distribute, abandonment of a controlled substance, reckless driving, obstructing an officer and a stop sign violation. The charges arose from a controlled marijuana buy and from Dryden’s attempt to flee. He entered guilty pleas to the charges of possession of marijuana with intent to distribute, abandonment of a controlled substance and running a stop sign. A jury found Dryden guilty of aggravated assault on a peace officer, serious injury by vehicle based upon reckless driving, reckless driving and obstructing an officer. The trial court merged the convictions for reckless driving and serious injury by vehicle based upon reckless driving. We affirmed Dryden’s convictions, Dryden v. State, 292 Ga. App. 467 (665 SE2d 341) (2008), but our Supreme Court reversed the convictions for aggravated assault on a peace officer and serious injury by vehicle based upon reckless driving, “[fjinding that the verdicts of guilt for the two crimes must be determined mutually exclusive in this case.” Dryden v. State, 285 Ga. 281 (676 SE2d 175) (2009).

The state re-indicted Dryden in 2009, this time charging him with two counts of aggravated assault on a peace officer, serious injury by vehicle based upon reckless driving, and reckless driving. It also indicted him for the three charges to which Dryden had pled guilty and which he had not appealed (possession of marijuana with intent to distribute, abandonment of a controlled substance and running a stop sign) and for obstructing an officer, which we had affirmed on appeal and which the Supreme Court did not address.

Dryden filed motions to dismiss and pleas in bar, which the trial court denied. The court did rule that the sentences on the charges of possession of marijuana with intent to distribute, abandonment of a controlled substance, obstructing an officer, and the stop sign violation would be the sentences imposed during the first proceeding, thereby effectively barring their retrial.

The case proceeded to trial, and the jury returned a guilty verdict of aggravated assault on Officer Mark Thomason, reckless conduct as a lesser offense of the aggravated assault on Officer Kenny Neece, and serious injury by vehicle of Officer Thomason. After the trial court denied Dryden’s motion for new trial, he filed this appeal.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence shows that, on January 18, 2006, using an informant, the police arranged a controlled buy of marijuana from Dryden. The informant and an undercover officer drove to a gas station to meet Dryden. Seven other officers were involved in the buy: four officers, including victims Mark Thomason and Kenny Neece, were in a sport utility vehicle (SUV) and three were in a pickup truck. The officers headed toward the gas station where the buy was to occur, but remained hidden. Dryden arrived, and the informant got into his car. The officer driving the pickup truck signaled the takedown.

The officers tried to block one exit of the gas station parking lot with the SUV, which had its lights flashing, and a second exit with the pickup truck. Dryden began trying to back out, hitting the undercover officer’s vehicle behind him. Dryden pulled forward and stopped in front of the SUV. Believing that Dryden’s car was blocked in, Thoma-son and Neece exited the SUV. As Neece came around the SUV toward the driver’s side of Dryden’s car, Dryden started driving the car straight at him, while maintaining eye contact, causing him to jump back and run. This left open an exit from the parking lot, but instead of exiting, Dryden changed direction and drove toward Thomason.

As Dryden came toward him, Thomason used his hand to push away from Dryden’s car, but Dryden continued to accelerate toward him, forcing him to back up. Thomason drew his gun, intending to shoot Dryden to stop him. As Thomason fired his gun, Dryden attempted to flee the scene, hitting Thomason with his car, pinning him against the stopped pickup truck and crushing his leg between the two vehicles. Dryden then fled the parking lot.

1. Dryden argues that the state should not have re-indicted him for offenses he had already resolved and that the court erred by reading the entire indictment — including the charges that had been resolved — to the jury panel prior to selection. Dryden unsuccessfully moved for a new panel from which to select jurors.

We do not reach Dryden’s argument that the state should not have been permitted to re-indict him for offenses that had already been resolved, because that argument does not identify an error by the trial court. “This [c]ourt is a court of review for the correction of errors made by the trial court. Here there is no ruling to review.” Jett v. State, 246 Ga. App. 429, 430 (2) (540 SE2d 209) (2000).

Dryden does complain that the trial court erred in reading the entire indictment to the jury panel. But he has not shown harm. The trial court read the entire indictment to the jury panel before the parties struck the jury. Once the jurors had been selected, the court expressly instructed them that only the first three counts were on trial. In its closing instructions, the trial court reiterated that the jurors were only to consider the three charges. And, having elected to send the indictment out with the jury, the trial court, with the consent of Dryden’s counsel, sent only the portion of the indictment listing the three charges on trial. So the jury knew that Dryden was on trial for only the three charges.

Moreover as discussed in Division 4, the state was entitled to present evidence of the entire transaction. It did so, including testimony about the conduct underlying the charges that had been resolved.

Dryden therefore has not shown harmful error. Foster v. State, 230 Ga. 666, 668 (4) (198 SE2d 847) (1973). “[I]t is axiomatic that harm as well as error must be shown to authorize a reversal by this court.” (Citation omitted.) Zinnamon v. State, 261 Ga. App. 170, 174 (2) (b) (582 SE2d 146) (2003). See also Kersey v. State, 243 Ga. App. 689, 692 (2) (534 SE2d 428) (2000) (pretermitting whether trial court should have redacted indictment of charge to which defendant had already pled guilty, defendant failed to show prejudice because officer was entitled to testify about that charge to explain his conduct).

2. Dryden argues that the court erred in admitting similar transaction evidence. “Atrial court’s decision to admit similar transaction evidence will not be disturbed absent an abuse of discretion.” (Citation omitted.) Moore v. State, 288 Ga. 187, 190 (3) (702 SE2d 176) (2010). The trial court admitted, as similar transaction evidence, testimony about an incident that occurred in January 1995. In that incident, police officers tried to stop Dryden’s car, but he refused to pull over. Instead, he accelerated for a quarter mile, jumped out of his moving car, and ran to a family member’s house. The officers found him trying to crawl into the attic, and he struggled with the officers when they pulled him down. It also admitted, as a similar transaction, evidence that in 2004, Dryden fled when agents tried to pull him over shortly after an undercover buy of marijuana. The trial court admitted the similar transactions because they showed Dryden’s intent to avoid apprehension at any cost.

Dryden argues that the similar transaction evidence was not similar to the charges for which he was on trial. On the contrary, the charges for which Dryden was on trial all stemmed from his fleeing from officers who were trying to stop him, just as the similar transactions involved Dryden fleeing from officers who were trying to stop him. “[Wjhen similar transaction evidence is used to show bent of mind, course of conduct, motive or intent, a lesser degree of similarity is required than when such evidence is introduced to prove identity.” (Citation and punctuation omitted.) Barnes v. State, 287 Ga. 423, 426 (3) (696 SE2d 629) (2010). The trial court did not abuse its discretion in admitting the similar transaction evidence. Moore v. State, 288 Ga. at 190 (3). Cf. Mangum v. State, 308 Ga. App. 84, 87-88 (2) (706 SE2d 612) (2011); Evans v. State, 298 Ga. App. 505, 507 (1) (680 SE2d 446) (2009).

3. (a) Dryden argues that the convictions for serious injury by vehicle and aggravated assault on Officer Thomason are factually mutually exclusive. He points out that one count requires no injury while the other count requires an injury. Therefore, he argues, the jury could not convict on both counts. But as the two counts arise out of distinct acts, the argument is without merit.

“Verdicts are mutually exclusive where a guilty verdict on one count logically excludes a finding of guilt on the other.” (Citations and punctuation omitted). Jackson v. State, 276 Ga. 408, 410 (2) (577 SE2d 570) (2003). This can occur when, based on the offenses, the verdict reflects that “the jury, in order to find the defendant guilty on both counts, necessarily reached two positive findings of fact that cannot logically mutually exist.” (Citation and punctuation omitted.) Id.

The state charged Dryden with committing aggravated assault on Thomason “by placing said agent in reasonable apprehension of immediately receiving a violent injury by driving his vehicle toward said agent.” It charged Dryden with serious injury by vehicle by injuring Thomason’s leg when he “reverse[d] his direction of travel on more than one occasion with numerous vehicles and officers present and [fled] the parking lot at a high rate of speed in a reckless disregard for the safety of persons and property.” The evidence supported verdicts on both charges: Dryden placed Thomason in fear of receiving an injury by intentionally driving his vehicle at him, and then Dryden injured Thomason in the course of his recklessly fleeing the scene. The charges therefore were not factually mutually exclusive.

(b) As an alternate basis for this enumeration of error, Dryden appears to return to the argument that persuaded our Supreme Court to reverse: that the verdicts are mutually exclusive because, one count requires negligence while the other requires intentional conduct. But that error was cured on remand.

In its opinion reversing Dryden’s convictions, the Supreme Court ruled that it could not overlook the possibility that the verdicts were mutually exclusive because, as the indictment was worded, the jury could have found Dryden guilty of both negligent and intentional conduct at the same time. Specifically, the indictment did not specify whether the aggravated assault was committed by attempting to commit a violent injury to Thomason under OCGA § 16-5-20 (a) (1), or by committing an act that placed Thomason in reasonable apprehension of immediately receiving a violent injury under OCGA § 16-5-20 (a) (2). Dryden, 285 Ga. at 282-283. The court held:

A verdict of guilty as to aggravated assault based on OCGA § 16-5-20 (a) (1) requires a finding of an intentional infliction of injury, which precludes the element of criminal negligence in reckless conduct. A verdict of guilt predicated on OCGA § 16-5-20 (a) (2) does not. Accordingly, a verdict of guilt as to aggravated assault is mutually exclusive with a verdict of guilt as to serious injury by vehicle predicated on reckless driving, if the aggravated assault is based on “[a]ttempt[ing] to commit a violent injury to the person of another” under OCGA§ 16-5-20 (a) (1).

(Citation and punctuation omitted; emphasis in original.) Dryden, 285 Ga. at 282. The court ruled that the jury could have found “that Dryden intentionally attempted to commit a violent injury to Thoma-son and found him guilty of aggravated assault by applying OCGA § 16-5-20 (a) (1)” and also could have found that Dryden negligently caused serious injury by committing reckless driving. Dryden, 285 Ga. at 284.

On remand, the state avoided this problem by refining the language of the count charging aggravated assault of Thomason, specifying that Dryden assaulted Thomason with a motor vehicle “by placing [him] in reasonable apprehension of immediately receiving a violent injury by driving his vehicle toward [him].” Under the new indictment, in order to convict for the aggravated assault of Thoma-son, the jury was required to find that Dryden intentionally drove his car toward Thomason, thereby placing him in reasonable apprehension of immediately receiving a violent injury, which did not preclude the element of criminal negligence in reckless conduct. Dryden, 285 Ga. at 282 (“A verdict of guilt predicated on OCGA § 16-5-20 (a) (2) does not” preclude the element of criminal negligence in reckless conduct.) (citation omitted).

(c) Although his argument is unclear, Dryden also seems to adopt an argument to which the Supreme Court alluded in footnote two of its opinion. The court wrote that, because it was reversing the conviction of serious injury by vehicle through reckless driving on other grounds, there was no “need [to] address the Court of Appeals’ conclusion that it was Dryden’s actions after injuring Thomason that supported] a finding of injuring him” by driving recklessly. (Emphasis supplied.) Dryden, 285 Ga. at 283, n. 2. But on retrial the state’s evidence was fortified against that argument. Douglas Matthews, one of the officers in the SUV, testified that the collision in which Thomason’s leg was crushed occurred as Dryden was attempting to flee, not before he was attempting to flee.

4. Dryden argues that the admission of evidence of his activities after the car collision was unfairly prejudicial. Specifically, he challenges the admission of evidence that when he fled the gas station, he ran a stop sign, hit a pole, jumped out of the car, told his passenger to throw out the marijuana, and hid in a bedroom closet in a nearby residence.

[T]he state is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. . . . Acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae and it does not matter that the act is another criminal offense.

(Citations and punctuation omitted.) Horner v. State, 257 Ga. App. 12, 13 (1) (570 SE2d 94) (2002). The trial court did not err by allowing the state to present evidence of the entire transaction.

5. Dryden argues that the retrial of the aggravated assault on Thomason was barred by res judicata, successive prosecution, and collateral estoppel. Essentially, he argues that the prohibition against double jeopardy barred the state from re-indicting him with new language for the aggravated assault of Officer Thomason. But there was no bar to re-indictment and to re-trial in this case, nor was there a bar here to the use of different language in the new indictment.

The prohibition against double jeopardy in both the United States and Georgia Constitutions, among other things, protects against a second prosecution for the same offense after acquittal or conviction. Roberts v. State, 280 Ga. App. 672, 673 (634 SE2d 790) (2006); U. S. Const. Amend. 5; Ga. Const. of 1983, Art. I, Sec. I, Par. XVIII. OCGA §§ 16-1-6, 16-1-7, and 16-1-8 also provide limitations on multiple prosecutions, convictions, and punishments for the same criminal conduct. Because the Georgia Code expands the proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions, we look to the foregoing Code sections to resolve issues of double jeopardy.

(Citations and punctuation omitted.) Phillips v. State, 298 Ga. App. 520, 521 (1) (680 SE2d 424) (2009). OCGA § 16-1-8 (a) (1) provides that “[a] prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution . . . [r]esulted in either a conviction or acquittal. . . .” However, OCGA § 16-1-8 (d) (2) provides an exception to the rule, stating, in relevant part:

A prosecution is not barred within the meaning of [OCGA § 16-1-8 (a) (1)] if . . . [subsequent proceedings resulted in the invalidation, setting aside, reversal, or vacating of the conviction, unless the accused was thereby adjudged not guilty or unless there was a finding that the evidence did not authorize the verdict.

Because the Supreme Court’s reversal of our opinion affirming Dryden’s convictions amounted to neither an adjudication of not guilty nor a finding that the evidence did not authorize the verdict, Dryden’s re-indictment and re-trial on the aggravated assault charge were not barred. Phillips, 298 Ga. App. at 521 (1). Nor did double jeopardy principles bar the state from re-wording the indictment. See Casillas v. State, 267 Ga. 541, 542 (1) (480 SE2d 571) (1997) (finding that state was not barred from trying defendant on a new indictment charging involuntary manslaughter in two separate counts simply because the original indictment charged him with that same crime in a single count); McCrary v. State, 254 Ga. 382, 382-383 (2) (a) (329 SE2d 473) (1985) (portion of new indictment did not violate OCGA § 16-1-7 (b) as it was merely the “re-statement of the ‘same conduct’ as that identified in the original indictment, the only difference being the ascription to that conduct in the later indictment of being committed” in a particular way).

6. Dry den argues that the trial court erred by failing to give his requested charge on accident. The request was founded on OCGA § 16-2-2, which provides: “A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” But, a charge on accident is not authorized when the “accident” occurs as the defendant is driving recklessly. Black v. State, 222 Ga. App. 80, 81-82 (2) (473 SE2d 186) (1996); Helton v. State, 216 Ga. App. 748, 748-749 (455 SE2d 848) (1995) (defendant who was driving recklessly to evade police was not entitled to a charge on accident).

7. Dryden argues that the court erred by refusing to allow him to introduce certain evidence to impeach one of the officers involved in the incident, Agent Doug Matthews, who had been in the SUV. The allegedly impeaching evidence was that an assistant district attorney had suggested that Dryden’s former counsel might want to explore whether Matthews saw the pickup truck or Dryden’s car hit Officer Thomason first. The trial court excluded the evidence on the ground that it was not proper impeachment evidence.

Decided April 30, 2012

Reconsideration denied May 29, 2012

Troy R. Millikan, for appellant.

Lee Darragh, District Attorney, Alison W. Toller, Assistant District Attorney, for appellee.

Agent Matthews testified that he “could not tell” whether Dryden’s car or the pickup truck hit Agent Thomason first. “[T]here was no testimony elicited from [Matthews] that would have been contradicted by” the evidence from the assistant district attorney. Hollie v. State, 298 Ga. App. 1, 3 (1) (679 SE2d 47) (2009). The trial court thus did not abuse its discretion in refusing to admit this as impeachment evidence. See id.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


author: BARNES, Presiding Judge.

text:
    A12A0394.
    BAILEY v. THE STATE.
    (728 SE2d 747)
   BARNES, Presiding Judge.

Lyedrekus Bailey appeals his convictions for cocaine possession with intent to distribute and misdemeanor marijuana possession, asserting that the evidence against him was insufficient to find him guilty beyond a reasonable doubt. For the reasons that follow, we affirm.

Unlike a conviction for cocaine trafficking, the State need not prove that a defendant possessed any particular quantity of the drug, although it must prove more than mere possession to support a conviction for cocaine possession with intent to distribute. OCGA § 16-13-30; James v. State, 214 Ga. App. 763, 764 (1) (449 SE2d 126) (1994). Generally, whether the State has proven an intent to distribute cocaine is “peculiarly a question of fact for determination by the jury.” (Citation and punctuation omitted.) Bussey v. State, 263 Ga. App. 56, 59 (1) (b) (587 SE2d 134) (2003).

No bright line rule exists regarding the amount or type of evidence sufficient to support a conviction for possession with intent to distribute. Intent to distribute may be shown in many ways, including through evidence of the manner in which the drugs are packaged, the amount of drugs, and the amount and denominations of cash.

(Footnotes omitted.) Harper v. State, 285 Ga. App. 261, 265 (1) (b) (645 SE2d 741) (2007).

In this case, the evidence at trial established that an agent of the Hall County Sheriff’s Office Multi-Agency Narcotics Squad began to investigate Bailey based on a tip from a confidential informant. The investigation led to an apartment in an area with a reputation for high drug distribution. As the agent and three other officers pulled up to the apartment and began to get out of their van, one of Bailey’s co-defendants who was standing outside the building began yelling, as would a lookout notifying a drug distributor that law enforcement was present. The agents entered the 12- by 18-foot apartment and found Bailey standing in the center of the room, about four feet from the stove where another co-defendant stood and three or four feet from a table near the third co-defendant. On the table was a set of digital scales, with visible residue on both the table and the scales, and the cut-off corner portion of a plastic baggie, which the agent testified was commonly used to package crack cocaine for sale. The residue tested positive for cocaine. Another plastic bag corner was on top of another table along with a small amount of loose marijuana, and a roll of plastic bags was located underneath. An agent testified that plastic bags were commonly used to package and distribute illegal drugs for sale. The agent also found a piece of cocaine on top of the stove and two more pieces in the eye of one of the heating elements. The apartment contained no food, only fast food bags, and baking soda, which is commonly used to turn powder cocaine into rocks or crack. Bailey had $423 on him, and the majority of the cash was in denominations commonly found in crack houses.

The State introduced evidence of three similar transactions against Bailey. In 2003, a Gainesville police officer was patrolling and saw Bailey jump into traffic as if he were waving down a vehicle. Bailey ran away from the officer, who saw him toss away a plastic baggie containing 12 pieces of crack. Bailey was caught and charged with possession of cocaine with intent to distribute. In 2004, another Gainesville police officer stopped a car driven by one of Bailey’s co-defendants. Bailey was charged with cocaine possession after the officer found a rock of crack in his seat. In 2005, Bailey sold a rock of crack to an undercover agent and pled guilty to selling cocaine.

Decided May 30, 2012.

Richard Thurman, for appellant.

Lee Darragh, District Attorney, Lindsay H. Burton, Assistant District Attorney, for appellee.

This evidence was sufficient to authorize the jury’s finding, beyond a reasonable doubt, that Bailey committed the offense of possession of cocaine with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Johnson v. State, 230 Ga. App. 535 (496 SE2d 785) (1998).

Judgment affirmed.

Adams and McFadden, JJ., concur.


author: BARNES, Presiding Judge. MCFADDEN, Judge,

text:
    A12A0795.
    JACKSON v. THE STATE.
    (729 SE2d 404)
   BARNES, Presiding Judge.

Bernard Jackson appeals his jury convictions for armed robbery and possession of a firearm during the commission of a crime, arguing that his trial counsel was ineffective. For the reasons that follow, we affirm.

The appellate court reviews the evidence in the light most favorable to the verdict, giving deference to the jury’s determination on the proper weight and credibility to be given the evidence. It is for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence. .

(Citations and punctuation omitted.) Farris v. State, 290 Ga. 323, 324 (1) (720 SE2d 604) (2012).

Viewed in that light, the evidence at trial established that Jackson and his co-defendant entered a convenience store one evening with t- shirts covering their faces. J ackson wore a white sock over his right arm. The co-defendant pointed a gun at the cashier, who gave him about $300 from the cash register and four or five packs of Newport cigarettes, and the men left. Meanwhile, Jackson’s cousin saw the men, who were brothers, committing the armed robbery as she drove through the parking lot. She recognized them despite the shirts on their heads and called her sister, who reported to the police that an armed robbery was in progress at the store.

After the men left, the cashier also called the police to report the robbery, and she described both men as African-American and in their late teens or early twenties. One man was wearing a black t-shirt and blue shorts. While the responding officers were interviewing the cashier at the store, Jackson’s cousin called to check on her. The cousin eventually spoke with the officers, and in response to their request, she came to the sheriff’s office and made a statement identifying Jackson and his co-defendant as the armed robbers.

Officers went to Jackson’s house to execute an outstanding arrest warrant for a probation violation and found him hiding under a bed, wearing a t-shirt and blue shorts. He had a burn mark and a tattoo with his nickname “Hard Nard” on his right forearm. The numbers on the bottom of an unopened pack of Newport cigarettes in Jackson’s house were in sequence with the numbers on cigarette packs that were still in the convenience store. Jackson’s co-defendant was also in the house, and a pair of black tennis shoes and plaid shorts on the floor in his room looked like those worn by the gunman in a video of the robbery.

The cashier later identified Jackson from a photographic lineup. The officer who conducted the lineup explained that the cashier was “pretty sure that [he] was the one without the gun, that it just looked just like him and [she] recognized him from being in the store once or twice.” The cashier also identified Jackson in court as one of the two robbers. Another witness testified that he overheard Jackson and his co-defendant bragging about a robbery they just committed and saw them handing out cigarettes to everyone. That witness was later arrested in an unrelated case and placed in a jail cell next to Jackson, who talked to him about the robbery. The co-defendant’s live-in girlfriend identified both men from the video, explaining that she recognized how Jackson walked and knew all the clothing both men owned and shared.

The jury convicted Jackson of armed robbery and possession of a firearm during the commission of a crime, and he pled guilty to possession of a firearm by a convicted felon. The trial court sentenced him to life for the armed robbery, four years on the firearm possession by a convicted felon charge to be served concurrently, and five years on the firearm possession during the crime charge to be served consecutively.

Jackson argues on appeal that his trial counsel was ineffective for failing to object to the testimony of a State’s witness who identified him from the store video, for failing to adequately investigate and present a defense, and for failing to file a motion to sever his trial from his co-defendant’s.

[T]o succeed on his claim of ineffective assistance, [Jackson] must satisfy both prongs of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984) [;] that is, he must prove that his attorney’s performance was deficient and that there is a reasonable probability that the result of his trial would have been different but for such deficiency; in this Court’s review of the trial court’s decision regarding the alleged ineffectiveness, this Court is to accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, but it is to independently apply the legal principles to the facts.

(Citation omitted.) Nations v. State, 290 Ga. 39, 42 (4) (717 SE2d 634) (2011).

1. Jackson first argues that his trial counsel was deficient in failing to object when his co-defendant’s girlfriend testified that she recognized the men from the video. His trial counsel testified at the motion for new trial hearing that he did not object because he thought the evidence was admissible and he made the strategic decision not to make a frivolous objection.

A person not qualified as an expert and who was not the victim of or witness to a crime [,] but who has viewed a surveillance videotape of the commission of the crime, has been permitted to give an opinion of the identity of persons depicted on the videotape if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the [image] than is the jury.

(Citation and punctuation omitted.) Dawson v. State, 283 Ga. 315, 320 (4) (658 SE2d 755) (2008). For example, a witness may be more likely to identify the defendant correctly because he “had personal knowledge of the defendant close to the time of the crime and ha[s] personal knowledge that the defendant’s appearance has changed.” Id.; Roberts v. State, 257 Ga. App. 251, 252 (2) (570 SE2d 595) (2002) (officers who saw defendant four days after crime were more likely than jury to identify him correctly from a surveillance video because his appearance had changed since then); Harper v. State, 213 Ga. App. 444, 448 (5) (445 SE2d 303) (1994) (investigators were authorized to identify defendant from video because “they were able to observe the defendant at the time of the robbery before his appearance had changed”). In Dawson, 283 Ga. at 320-321, the identification testimony was admissible because the video was bad quality and the defendant had gained 50 pounds since the surveillance video.

Here, Jackson’s appearance on the surveillance video with most of his face covered was drastically different from his appearance in the courtroom with his face uncovered, and the witness had lived with Jackson’s co-defendant, who was his brother, in the same house as Jackson. Her familiarity with Jackson and his clothes was a sufficient basis to conclude that she was more likely to correctly identify him from the video than the jury. See Bradford v. State, 274 Ga. App. 659, 661 (3) (618 SE2d 709) (2005). Therefore, the witness’ testimony identifying him from the video was admissible. As failure to object to admissible evidence is not ineffective assistance, Fults v. State, 274 Ga. 82, 87 (7) (548 SE2d 315) (2001), this enumeration lacks merit.

2. Jackson contends that his trial counsel’s assistance was ineffective because he failed to adequately investigate and present a defense, specifically that he did no independent pre-trial investigation, and did not interview any of the law enforcement officers involved in the case, the robbery victim, or Jackson’s cousin who identified him from the parking lot. Further, trial counsel did not present an alibi defense, and two witnesses testified at the motion for new trial hearing that they had seen J ackson on the night of the crime at a different location, at a time when he could not have committed the robbery.

Trial counsel testified at the new trial hearing that he gave Jackson a copy of the State’s discovery materials and met with him in the months before trial to go over the discovery, view the surveillance tape, discuss possible witnesses and defenses, and make decisions about various trial matters. He reviewed all of the witness statements and was not surprised by any of their testimony. As to the two witnesses who testified at the new trial hearing that Jackson was elsewhere when the robbery o.ccurred, Jackson concedes that their testimony conflicts with his statement to a GBI agent that he had been home asleep when the robbery occurred and that no one could verify that. While Jackson argues that witnesses almost always give differing accounts of events in criminal trials and calling witnesses who contradict each other may be good strategy under certain circumstances, whether or not to call those witnesses is clearly a strategic decision. And in this case, trial counsel testified that he discussed with Jackson his statement to the agent, and would have remembered if Jackson told him he had alibi witnesses who would testify to the contrary, because those situations can raise all kinds of problems for the witnesses and an ethical dilemma for the lawyer. Further, the trial court found that the two witnesses who testified at the hearing were not credible. Finally, because the evidence against Jackson was substantial • — • the victim had identified him in the photographic lineup as one of the robbers, his cousin had identified him as one of the robbers, and a witness overheard Jackson bragging about the crime — counsel was “feverishly negotiating” with the State before trial to obtain a favorable plea bargain for Jackson. Jackson was facing a possible sentence of ten years to life in prison, and if he was sentenced to life he would not be eligible for parole until he had served thirty years. Trial counsel obtained an offer to reduce the armed robbery charge to robbery, with a sentence of eight years in jail plus additional probation time in exchange for his guilty plea.

“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” (Citation and punctuation omitted.) Lee v. State, 205 Ga. App. 139, 141 (421 SE2d 301) (1992). The trial court found that the alibi witnesses who testified at the motion for new trial hearing were not credible and that Jackson failed to show his trial counsel was deficient, and those findings were not clearly erroneous.

3. Finally, Jackson asserts his trial counsel was deficient for failing to file a motion to sever his case from his co-defendant’s, who was facing additional charges of escape, aggravated assault on a correctional officer, and two counts of obstruction of an officer, wholly unrelated to the armed robbery charges against both men. Given that these other charges involved separate witnesses and involved events that occurred more than six months after the robbery, Jackson argues, filing a motion to sever would have been “a reasonable, certainly meritorious strategy to pursue.”

Trial counsel testified that his decision not to file a motion to sever the trials was both strategic and practical, because it would not have been successful. He had spoken with the co-defendant’s lawyer and knew that neither defendant was going to take the stand and testify. The co-defendant did not make a statement, and Jackson’s statement did not implicate the co-defendant, so their defenses were not antagonistic. The case was not so factually or legally complicated that trying the men together might confuse the jury, and trial counsel thought that the evidence about the co-defendant’s actions related to the other charges would not prejudice Jackson. Because trial counsel did not think a motion to sever would have been granted, he did not file one, choosing instead to concentrate on the defense of misidenti-fication.

Decided May 30, 2012.

Jessica I. Benjamin, for appellant.

Fredric D. Bright, District Attorney, Alison T. Burleson, Assistant District Attorney, for appellee.

The failure to file a motion to sever does not require a finding of ineffective assistance [when] the decision whether to seek severance is a matter of trial tactics or strategy, and a decision amounting to reasonable trial strategy does not constitute deficient performance.

(Citation omitted.) Jackson v. State, 281 Ga. 705, 707 (6) (642 SE2d 656) (2007). Nor does a failure to file such a motion constitute ineffective assistance if the motion would have been futile. “A successful motion for severance requires a showing that a joint trial will prejudice the accused. Because [Jackson] could not show that the joint trial caused him any harm, defense counsel was not ineffective for failing to move for severance.” Glenn v. State, 279 Ga. 277, 279 (2) (c) (612 SE2d 478) (2005).

Judgment affirmed.

Adams, J., concurs. McFadden, J., concurs fully and specially.

MCFADDEN, Judge,

concurring fully and specially.

I concur fully in the majority opinion. I write separately to elaborate on the standards of review applicable to claims of ineffective assistance of counsel. In Division 2, the majority correctly applies the clearly erroneous standard, which in Georgia is equivalent to the any evidence standard. But that standard is applicable only to findings of fact. To the extent a ruling on a claim of ineffective assistance entails a ruling on an issue of law or an exercise of discretion, different standards apply. See Suggs v. State, 272 Ga. 85, 87-88 (4) (526 SE2d 347) (2000). See generally Reed v. State, 291 Ga. 10, 12 (3) (727 SE2d 112) (2012).


author: Boggs, Judge.

text:
    A12A0245.
    In THE INTEREST OF S. D., a child.
    (728 SE2d 749)
   Boggs, Judge.

The Fulton County Department of Family and Children Services (“DFACS”) filed a deprivation complaint alleging that one-day-old S. D. was deprived because his teenage mother was herself in DFACS custody and was unable to care for the child. When S. D. was six days old, DFACS filed a deprivation petition. Following a hearing, the juvenile court found S. D. deprived and awarded temporary custody of the child to DFACS. The mother appeals, and for the reasons that follow, we reverse.

A deprived child is defined as a child who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” OCGA § 15-11-2 (8) (A).

In determining whether a child is deprived, the court focuses on the needs of the child rather than parental fault. And a temporary loss of custody is not authorized unless the deprivation resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child. On appeal from a finding of deprivation, we review the evidence in the light most favorable to the juvenile court’s judgment and determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived and whether, under the circumstances, the court properly awarded temporary custody of the child.

(Citations, punctuation and footnote omitted.) In the Interest of J. H., 310 Ga. App. 401-402 (713 SE2d 472) (2011).

So viewed, the record shows that DFACS filed a deprivation complaint when S. D. was one day old. The complaint alleged that the 16-year-old mother was in DFACS custody and “not capable of caring and providing for [the] child.” The same day, the juvenile court issued a probable cause order finding that probable cause existed to suspect that S. D. was deprived because the minor mother was in DFACS custody, refused to go to school, was unemployed and without independent housing, and was unable to independently provide for S. D. The order did note however, that the mother had completed parenting classes, and that the child’s maternal great-grandmother’s home had been approved to house S. D. and his mother upon their release from the hospital.

Following the deprivation complaint resulting in S. D. being placed in shelter care, DFACS filed a deprivation petition when S. D. was six days old. The petition alleged that S. D. was deprived because the mother was in the temporary custody of DFACS, without resources to provide for the financial needs of the child and also without independent housing, the father’s whereabouts were unknown, he had failed to legitimate the child, and failed to provide the child with a home, care or support.

At the hearing on the deprivation petition, a DFACS case manager testified that S. D. had been placed with his mother in the home of the maternal great-grandmother who receives “[f]unding from the Department,” furniture, and food for both S. D. and his mother, and admitted that even if S. D. were no longer in the temporary custody of DFACS, the great-grandmother would still receive a per diem for S. D.’s care. The case manager stated that S. D.’s needs were being met, and that the child had not suffered any “abuse, neglect, or maltreatment.” The case manager admitted that DFACS became involved with the child only because he was a “child born[e] by a child in custody’ and the “likelihood” of “possible future deprivation.” As of the date of the hearing, the mother continued to participate in ongoing parenting classes, and there was no psychological evaluation or parental assessment conducted on the mother since S. D.’s birth. The case manager explained that while in the hospital, the mother took “care of the child like she was supposed to” and that there were no “allegations from the hospital staff that she did not take care of him properly.” After leaving the hospital, the mother attended all of S. D.’s medical appointments.

A life coach with Teen Parent Connection who had worked with the mother for six months testified that the mother had been compliant with all classes and that she observed the mother with the child after they came home. She explained that the mother was “very attentive” to S. D., that she did not feel that S. D. was at risk while in the mother’s care, and that she believes the mother is competent enough to parent S. D.

At the hearing, the juvenile court took judicial notice of a psychological evaluation of the mother conducted several months before S. D. was born, which reportedly concluded that the mother has unspecified “behavioral problems.” The court also took judicial notice of a citizen review panel’s report from the mother’s case that had been prepared about four months before the birth of S. D. Neither of these documents was made a part of the record.

Following the hearing, the juvenile court found S. D. to be deprived as to his mother because of her inability to provide S. D. with a home, care and support, and ruled that S. D. “cannot be adequately and safely protected at home.” The court awarded DFACS temporary custody of S. D., approved a case plan submitted by DFACS, and ordered a permanency plan for reunification. The court acknowledged that it sua sponte took judicial notice over objection of the mother’s “Citizen’s Review Panel report” and psychological evaluation, both issued in the mother’s case several months before S. D.’s birth.

1. The mother and the child advocate argue that the juvenile court erred in taking judicial notice of, and in relying upon, the psychological evaluation and citizen review panel’s report issued in her case prior to S. D.’s birth.

Judicial notice is intended to eliminate the need for formal proof as to: (1) matters which the general public has common knowledge of; (2) facts which are readily ascertainable by reference to some reliable source, and are beyond dispute; and (3) matters which are in the special province of the judge.

Graves v. State, 269 Ga. 772, 774 (2) (504 SE2d 679) (1998), overruled in part on other grounds, Jones v. State, 272 Ga. 900, 903 (2) (537 SE2d 80) (2000).

Moreover, “[a] court may take judicial cognizance of records on file in its own court.” (Citation, punctuation and footnote omitted.) In the Interest of S. N. H., 300 Ga. App. 321, 328 (3) (685 SE2d 290) (2009). This rule originates from the Supreme Court of Georgia’s decision in Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107) (1984), addressing whether a trial court in a renewal action may take judicial notice of the record in the previously dismissed suit. Id. at 104. Thus, this rule appears to be limited to circumstances involving a prior case between the same parties in the same court. See also id.; In the Interest of S. N. H., supra (in termination case parties stipulated to judicial notice of underlying deprivation action); Mumford v. Davis, 206 Ga. App. 148, 149 (424 SE2d 306) (1992).

Even if we assume that the juvenile court could properly take judicial notice of the psychological evaluation and the citizen review panel’s report, both submitted in the mother’s case, for purposes of S. D.’s case, neither of these documents was tendered into evidence, compare In the Interest of B. M., 252 Ga. App. 716, 719-720 (1) (556 SE2d 883) (2001) (parties raised no objection to introduction of prior termination orders), and there was no testimony as to the contents of these documents. We must therefore conclude that the juvenile court could not consider the evaluation or report to determine whether S. D. was without proper parental care or control, or that the mother is unfit to parent S. D. See In the Interest of D. W., 294 Ga. App. 89, 94 (3) (a) (668 SE2d 533) (2008) (error in referring to mother’s psychological evaluation not in record, but harmless); see also In the Interest of K. S., 271 Ga. App. 891, 893-894 (611 SE2d 150) (2005) (no medical or psychological evidence of mother’s mental impairment nor any testimony that a mental impairment might limit mother’s parental abilities).

2. The mother argues that the evidence was insufficient to show that S. D. was presently deprived within the meaning of OCGA § 15-11-2 (8) (A). We agree. As we have held in Division 1 that the citizen review panel’s report and psychological evaluation from the mother’s case cannot be considered, we view the remaining evidence for sufficiency.

Here, the scant record before us reveals no evidence that S. D. was without proper parental care or control necessary for his physical, mental, or emotional health or morals. To the contrary, the evidence demonstrated that the mother properly cared for S. D. and that S. D.’s needs were being met. The DFACS case manager admitted that the only reason DFACS filed the deprivation petition was because the mother herself was in DFACS care and because of possible future deprivation. This is not the standard. The State must present evidence of present deprivation, and in this case it failed to do so. See In the Interest of C. L. C., 299 Ga. App. 729, 734-735 (1) (683 SE2d 690) (2009) (deprivation petition must allege present deprivation, not past or potential future deprivation).

Moreover, we find no authority providing that there is a presumption of deprivation of a child simply because the child’s mother is also in DFACS care, and DFACS has cited none. Because here there was insufficient clear and convincing evidence that S. D. was deprived, the juvenile court erred in making such a finding, and we must reverse. See In the Interest of J. H., supra, 310 Ga. App. at 402-404 (reversing finding of deprivation where no evidence presented that child was harmed by dirty home, physical discipline, or wearing only diaper in summer); In the Interest of K. S., supra, 271 Ga. App. at 893-894 (reversing finding of deprivation where record contained no medical or psychological evidence of mother’s mental impairment nor any testimony that a mental impairment might limit mother’s parental abilities, no evidence child was at risk for abuse, no evidence that mother lacked proper parenting skills, and no evidence child was not being properly cared for).

Decided May 31, 2012.

Carol D. Riley, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, LaMia G. Saxby, Diana R. Johnson, for appellee.

3. As we have held in Division 2 that there was insufficient evidence to support the juvenile court’s finding that S. D. was deprived, and there was no evidence that any unfitness on the part of the mother resulted in abuse or neglect of S. D., the court also erred in transferring custody of S. D. to DFACS. See In the Interest of K. S., supra, 271 Ga. App. at 894 (where no evidence child was deprived, court erred in removing child from mother’s custody); In the Interest of E. M., 264 Ga. App. 277, 281 (590 SE2d 241) (2003) (same); In the Interest of M. L. C., 249 Ga. App. 435, 439 (2) (548 SE2d 137) (2001) (same).

Judgment reversed.

Doyle, P. J., and Andrews, J., concur.

       The child advocate attorney for S. D. also filed a brief enumerating essentially the same errors as the mother’s brief and also asserting that the juvenile court erred in exercising jurisdiction over the deprivation petition.

       See OCGA § 15-11-45.

       The juvenile court also found as fact that the “minor mother was hospitalized at Laurel Ridge for behavioral problems.” But the record reveals no evidence of this fact.


author: Barnes, Presiding Judge.

text:
    A12A0465.
    BROCKINGTON v. THE STATE.
    (728 SE2d 753)
   Barnes, Presiding Judge.

A jury convicted Gerald Eugene Brockington of aggravated assault and aggravated battery, and the trial court sentenced him to serve an aggregate of 25 years in confinement followed by 15 years on probation. He contends on appeal that the trial court erred in imposing separate sentences for each count, arguing that the offenses merged as a matter of law and fact. He also asserts his trial counsel was ineffective for not objecting to certain testimony from two health care professionals. We find no error, and affirm the convictions.

Viewed in the light most favorable to the verdict, the evidence showed that the victim lived with Brockington, who became angry with her on December 25, 2008 because he did not like his Christmas presents. When she tried to leave, Brockington jumped on her car and began hitting it with a hammer. The victim backed her car into the street, but Brockington shoved the victim over, jumped into the driver’s seat, and pulled the car back into the driveway. The couple went back inside, and when the victim resisted going upstairs with him, Brockington struck her on her leg with the hammer. Her leg went numb, and she could not get up but tried to comply with Brockington’s demands. The victim remembered that as she crawled up the stairs, Brockington was behind her with the hammer. The next thing she remembered was seeing the shower floor, then being in her car dressed in different clothing, then talking to the police and being in an ambulance. Evidence technicians testified that someone apparently had attempted to clean the carpet on the landing of the stairs, but when they pulled it up, blood had soaked through the carpet pad beneath and into the wood flooring.

Meanwhile, Brockington’s mother, who was present the whole time, had called 911, but Brockington grabbed the phone and hung up. The 911 operator called back, and Brockington answered to say there was no problem, but the operator heard a voice in the background saying, “I can’t get up,” and dispatched the police. An officer responded to a possible domestic disturbance and found Brockington and the victim in her car in the driveway. Brockington got out and said the victim had fallen, but the victim did not respond to the officer’s questions about what had happened other than to say she had fallen, she was dizzy, her head hurt, and she wanted to go to the hospital.

An ambulance arrived, and emergency personnel took the victim to the emergency room. She had bruises on her leg and a laceration on her head, and although initially she was alert, she was confused, and by the time the neurosurgeon on call saw her, she was comatose. The physician described the victim’s injury as life-threatening, requiring immediate surgical intervention. He explained that her head had been damaged by a “focal impact” of significant force, consistent with a hammer blow, which caused the skull “to absorb a tremendous amount of kinetic energy that caused it to fracture into multiple pieces and be driven inward” into her brain. The skull fragments tore into the membrane surrounding her brain, causing bleeding and swelling. The surgeon removed the fragments, cleaned out the blood clot, cauterized the bleeding, and replaced the skull fragments, securing them in place with titanium plates and screws. He testified that this injury was not consistent with the victim having fallen up or down stairs.

The State introduced pictures of the victim’s scars on her scalp, and the victim testified that she experienced continuing cognitive difficulties. The State presented evidence that Brockington struck the victim on her head after she crawled up the stairs to the landing, where the blood had soaked through the carpet and carpet pad into the wood flooring below.

Brockington was indicted for aggravated battery in violation of OCGA § 16-5-24 for maliciously causing the victim bodily harm by “hitting [her] with an object unknown to the grand jurors” and seriously disfiguring her head, and for aggravated assault in violation of OCGA § 16-5-21 for hitting the victim on her leg with a hammer, “an object which used offensively against another person... is likely to result in serious bodily injury.” He was convicted on both counts, and the trial court sentenced him to twenty years in prison for aggravated battery and to five years in prison followed by fifteen years on probation for aggravated assault. The sentences were to run consecutively.

1. Under OCGA § 16-1-7 (a) (1), when the same conduct establishes the commission of more than one crime, a defendant may be prosecuted for both crimes, but cannot be convicted of more than one crime if one crime is included in the other. For purposes of merger,

one crime is included in another if either it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the other crime charged or if the included crime differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person or a lesser kind of culpability suffices to establish its commission.

(Punctuation and footnote omitted.) Robbins v. State, 293 Ga. App. 584, 585 (667 SE2d 684) (2008). Offenses which require proof of different facts do not merge. Drinkard v. Walker, 281 Ga. 211, 213 (636 SE2d 530) (2006).

In this case, the offenses required proof of different facts, which the State presented. “A person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). A person commits aggravated battery when he maliciously causes bodily harm to the victim by rendering a member of her body useless. OCGA § 16-5-24 (a). The State presented evidence that Brockington assaulted the victim by striking her on her leg with a hammer and rendering her unable to walk, and also presented evidence that afterward, as the victim crawled up the stairs to the landing, he struck her on her head with such force that he crushed her skull. Because each offense required proof of a fact that the other offense did not, the crimes did not merge legally or factually. Robbins, 293 Ga. App. at 585-586; Gant v. State, 291 Ga. App. 823, 826 (3) (662 SE2d 895) (2008).

Brockington also argues that because the State alleged that he hit the victim with a hammer first on her leg and then on her head, the blows constituted a single transaction for which he could be sentenced only once. Multiple blows during the commission of a crime may constitute a single offense and not separate crimes. Coleman v. State, 286 Ga. 291, 295 (3) (687 SE2d 427) (2009) (multiple gunshot wounds inflicted in quick succession without “deliberate interval” do not constitute separate assaults); Mikell v. State, 286 Ga. 722, 724-725 (3) (690 SE2d 858) (2010) (49 successive stab wounds inflicted in quick succession constituted a single assault). In this case, however, Brockington’s offenses did not constitute a single attack, but were separate incidents in separate locations against different parts of the victim’s body. After he hit the victim in the leg with a hammer and rendered her disabled, he had completed the aggravated assault. He then waited until the victim had crawled up the stairs to the landing to hit her on the head with a hammer and crush her skull. Since the evidence authorized a finding that Brockington committed an initial aggravated assault, then after a deliberate interval, committed an aggravated battery in a different location of the house and on a different part of the victim’s body, separate judgments of conviction and sentences for each offense were authorized. Lowe v. State, 267 Ga. 410, 412 (1) (b) (478 SE2d 762) (1996).

2. Brockington also contends that his trial counsel was ineffective for not objecting to certain testimony.

[T]o succeed on a claim of ineffective assistance of trial counsel, [Brockington] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. If an appellant fails to meet his burden of proving either prong, then we do not need to examine the other prong.

(Footnotes omitted.) Works v. State, 301 Ga. App. 108, 114 (7) (686 SE2d 863) (2009). Further, “[i]n general, matters of reasonable trial strategy and tactics do not amount to ineffective assistance of counsel.” Sweet v. State, 278 Ga. 320, 324 (4) (602 SE2d 603) (2004).

(a) Brockington rode up front in the ambulance during the transport and was “very involved with trying to hear what [the paramedic and victim] were doing in the back.” When the paramedic asked the victim how she became injured, Brockington repeatedly interjected that she had fallen. The paramedic testified that he told the receiving nurse at the hospital “right away that they probably should separate the two because it appeared to be a domestic situation and... maybe, with him not around, the female patient would be able to answer more questions about what had happened.”

Brockington argues that his trial counsel was ineffective for failing to object to the paramedic’s testimony that he thought this was a domestic situation because it “broke the ultimate issue rule.” OCGA § 24-9-65 provides that when the jury must decide a question as to the existence of a fact, “the opinions of witnesses shall be generally inadmissible,” and Brockington argues that the paramedic’s testimony improperly invaded the province of the jury. But the jury was not called upon to determine whether this was a “domestic situation.” It had already heard the 911 call dispatching the police to Brocking-ton’s house in response to a “domestic situation,” and the first officer on scene had already testified that he was responding to a possible domestic disturbance. The ultimate issue was whether Brockington assaulted and battered the victim. Trial counsel testified that he did not object to the testimony because there was no doubt that a domestic dispute had occurred and he thought that objecting would have been hurtful to the defense. Based on his pre-trial discussions with Brockington’s mother, trial counsel anticipated that his defense would be that if Brockington struck the victim with anything, it was with his open, empty hand, which would constitute only simple battery. As the trial court later noted, if his mother had testified as expected that Brockington hit the victim with his open hand, the jury might have convicted him of a less serious charge. Brockington has not shown that counsel’s tactical decision not to object to the paramedic’s testimony was outside the range of reasonably effective assistance. Sweet, 278 Ga. at 325 (8).

(b) The receiving nurse testified that the paramedic told her to separate the victim and Brockington because he was “acting a little bit strange, [a] little bit clingy.” Brockington contends that the nurse, who testified right after the paramedic, failed to identify the paramedic by name to ensure he was subject to cross-examination, that the testimony was inadmissible hearsay, and that his trial counsel’s failure to object to it was ineffective. Trial counsel testified at the motion for new trial hearing that he did not object to the nurse’s response because he did not think it was particularly harmful to Brockington. Counsel noted that Brockington was “very in love with this girl, and she was injured, so being clingy . . . was a normal reaction.” Presuming for the sake of argument that an obj ection to the nurse’s response would have had merit, trial counsel’s decision not to object was a reasonable trial tactic and strategy which constituted neither deficient performance nor ineffective assistance. Goodall v. State, 277 Ga. App. 600, 604-605 (2) (c) (627 SE2d 183) (2006).

Decided May 31, 2012.

Wystan B. Getz, for appellant.

Daniel J. Porter, District Attorney, Margaret B. Benson, Assistant District Attorney, for appellee.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       Brockington’s mother actually testified that he never hit the victim at all, which prompted the trial court to hold a hearing outside the jury’s presence at which the court noted that the mother’s trial testimony contradicted her recorded statement to a detective and found her in contempt for perjury.