author: Boggs, Judge.

text:
    A14A1402.
    MADISON v. THE STATE.
    (766 SE2d 206)
   Boggs, Judge.

Lawrence Madison appeals from his convictions for child molestation, two counts of sexual battery, and aggravated sexual battery. He asserts the general grounds and that numerous errors below entitle him to a new trial. For the reasons explained below, we affirm Madison’s child molestation conviction. But, based upon an error in the trial court’s charge to the jury, we reverse his sexual battery and aggravated sexual battery convictions.

In reviewing the sufficiency of the evidence,

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

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

So viewed, the record shows that Madison’s child molestation conviction arose out of his conduct in October 2006 when the victim, Madison’s adopted stepdaughter, was 15 years old. His sexual battery and aggravated sexual battery convictions relate to his actions in October 2009, when the victim was 18 years old. Evidence of the victim’s allegation that Madison molested her in 2003 was admitted during the trial, but Madison was not charged with a crime for this alleged conduct.

2003 Incident

The State submitted evidence showing that in 2003, when the victim was 11 years old, she reported to an after-school care provider that her stepfather was touching her inappropriately. The provider informed the victim’s mother as well as the police about the victim’s allegation. The victim testified that in 2003, Madison would give her a back massage and then “he moved to the front” and touched her breasts. She explained that “[w]hen it would happen I kinda froze and I just didn’t... I knew that it was happening but I didn’t really pay attention to it, I guess. Like I would always focus on something else to keep my mind . . . away from what was happening basically.” She explained that she later denied that Madison did anything inappropriate in the ensuing investigation, because Madison and her mother attacked her, told her “not to tell the whole truth,” she “didn’t want him to get in trouble,” and did not want to be taken away from her family. She stated that she had been taken to a runaway shelter and “she did not want to stay there anymore and [she] just wanted out of the whole situation.”

The victim’s mother testified that the victim told her in 2003 that she was uncomfortable with Madison touching her shoulders and nothing more. She denied coaching the victim, and explained that there was an agreement in the family after this report “for him not to touch her shoulders.” A police investigator testified that after her investigation, including an interview with the victim in which she denied that her father touched her breasts, a decision was made “that there wasn’t really criminal conduct involved.”

2003-2006 Conduct

The victim testified that after she returned home in 2003, Madison once again started hovering over her, rubbing her feet, brushing her hair, and watching her while she slept in the middle of the night. When she yelled for her mother in the middle of the night, her mother would come running, and Madison would make an excuse for being in her room claiming, for example, that he was looking for something. The victim testified that after she made these reports, she would go stay with her grandmother for a few weeks or a month before returning home. Between 2003 and 2006, she stayed with her grandmother approximately six times. The victim’s mother denied that the victim ever told her during this time period that Madison was making her uncomfortable or going into her room.

2006 Incident

With regard to the 2006 incident, the victim testified that she asked Madison for a back massage, because she had been in a car accident. She was watching a movie, and her mom was in the kitchen doing dishes. She testified that she was lying on the couch on her stomach and “he just walked over and sat on my butt and massaged me” and “as he’s massaging me he’s like grinding against me and, of course, I feel his boner just on my back, you know, just chillin’.” She explained that when Madison “first got on me it was completely soft and then as soon as he started rubbing me it was hard.” After the victim reported it to her school counselor, her

mom an[d] grandma came up to the school and we were all yelling at each other in the counselor’s office. They were calling me a liar again. My mom threatened to take my phone away from me because of everything. And I’d been offered a place to stay at [a friend]’s house ... and my house [sic] said no, she can go to foster care instead. So she basically sent me to foster care. . . .

After a period of time in foster care, the victim lived with her grandmother and “basically was forced to put on a happy face.”

The victim’s mother testified that both she and the victim’s brother had been in the room at the time of the alleged incident and “had not seen anything” inappropriate. She explained that after the victim’s first report to DFACS, she never left the victim alone with Madison. If she left the room to go the bathroom, she would make sure her son remained in the room with the victim. Because the mother was unwilling to go through another case plan with DFACS when she had been in the room when it allegedly happened, she made arrangements for the victim to live with her grandmother through the age of 18.

During cross-examination of a police officer, the defense established that the grand jury returned a “no bill” concluding that insufficient evidence existed to charge Madison with a crime in connection with the 2006 incident.

2009 Incidents

In 2009, the victim graduated from high school and was still living with her grandmother while attending college. Madison offered for her to work part-time at his office to earn extra money in addition to her job at a restaurant. When cross-examined about why she “would even go near him,” the victim explained:

Because I was kinda forced to put on a ... a smile about this whole thing. I was ... I was forced to be nice to him. He offered to give me a job. What . . . eighteen year old isn’t gonna... is gonna turn away a job where you get pretty much free money for bein[g] on Facebook? ... I didn’t have to do crap over at his office. ... It was very easy money and I needed extra money because I was going on trips. I was ’sposed to be going to ... I had just come back from Costa Rica, I was gon’ be going on a bunch of other stuff. It... I needed money. I wanted it.

She noticed after she started working in Madison’s office that his pattern with her was forming again. He “was paying more attention to me, he was coming up behind me a lot, putting his hands on my shoulders. Not really rubbing them but just putting them on my shoulders.” She “didn’t really think anything of it,” until

one day he just... he came up behind me and was massaging me and then he played with my nipples and then he actually started masturbating behind me. And honestly I don’t really remember a lot of what happened after that because I was too shocked because it hadn’t happened in three years that it was happening again and he actually did that behind me ’cause he had never done that before.

The victim told a couple of friends what had happened and testified that she “didn’t know what to do.”

She testified that she decided to return to work the following day, and Madison engaged in nearly identical behavior as the day before. When she reported to work again the following Monday,

he did the same thing as the first two days, he started off just giving me a back massage and unsnapped my bra. Rubbed my shoulders, rubbed my back, rubbed my breasts, played with my nipples. Dropped his drawers, masturbated behind me and... he was fondling my breast and then he went and started fingering me, playing with my vagina. And definitely didn’t know what to do because that had never happened before so it was very awkward to say the least and very uncomfortable.
And the whole time I remember I was just staring at the computer screen just because, like I said, I was completely shocked. It’s like I couldn’t move no matter if I wanted to or not. And at one point I remember the only time I’ve ever been able to say no to something that has ever happened, he tried to lift me up onto his lap and I pushed,... I pushed as hard as I could down into my seat so he couldn’t lift me and he didn’t. And he was like, you don’t wanna sit in my lap and I said. ... I shook my head no and he didn’t try it anymore.

She explained that this was “the first time I had ever been able to say no because I knew that if I sat on his lap he would probably rape me, honestly.”

She also testified that each of these three incidents lasted about an hour and that in each they would have “a normal conversation” where

he asked if I was okay with him. Like he didn’t feel like he was competent enough for me or something. I don’t really... know how to explain it... he was basically... tellin’ me like I know I’m old but you’re really beautiful and stuff like that. And I kinda felt sorry for him, I guess, so I was like it’s okay. Like ... I didn’t know how to respond to it.

She also agreed that she did not feel like she could tell him no. She admitted that she never told him “no,” because

I didn’t know how to say no, either. This has been going on since I was eleven and I have never known how. I’ve always frozen .. . like a zombie.. . . [W]hen you’re in that situation you completely freeze. You don’t know what’s going on. It’s a complete shock value. It’s almost like you get into a car accident. You don’t know how to react at all. And I’ve never been able to react the way I’ve wanted to. When that was going on I’ve wanted to. ... I was screaming in my head. I wanted to punch him in the face, I wanted to do all these things but I couldn’t. It was out of fear that I couldn’t do it.

After thinking about it and talking with friends, the victim decided to make a report to the police and did so seven days later, after she got her “evidence together and to make sure that I was actually gonna go through with it.” After she told Madison, her mother, and her grandmother about notifying the police, she moved in with a friend.

The victim testified that at the time of the 2009 incidents, she

was still very dependent on them. I had just graduated from high school and I was a freshman in college and I was living with my grandma so I wasn’t like paying rent or anything. I don’t think I ever paid my phone bill. I never really had to pay for anything, they kinda paid for everything for me.

She denied an allegation that she was blackmailing the defendant for $ 10,000, stating “I have never once asked for any amount of money for this. It’s been going on since I was eleven, why would I be in this since eleven to get an amount of money.”

During an interview with a police detective, he suggested that she record conversations with Madison and her mother. In the end of October or early November, she recorded a telephone call with both her mother and her father.

In a telephone call with her father, the victim began by telling him that she wanted to “try to resolve everything so that we can both move on. And I wanna know what you have to say.” After the victim explained that she felt that she had suffered because she had not received any counseling, Madison stated:

Alright, I ... I don’t really have a ... a problem with counseling. I probably did when you were, you know, under a certain age because here’s the legal ramifications, and I know the problem is — attorney. But — counselors and stuff when you’re underage, then all that really is for them is an admission and they can use stuff against you, okay.

In another portion of a recorded telephone conversation, Madison stated:

Hold on, I’ve already talked to your mom about this — your mom, she knows. She’s asked me. She talks to you and then she talks to me, then she talks to you, then she talks to me. And it’s... it’s, you know, it’s not that I didn’t — I haven’t told anybody that I’ve talked to that it didn’t happen.

Through the course of several other recorded telephone conversations, Madison repeatedly expressed concern about whether the victim had placed him on speaker or was recording their conversation, refused to discuss events before she turned 18, and expressed his view that she consented after the age of 18. At one point, the victim replied:

I know that, but the first time you only asked me like twice. And then the second time you only asked me a little bit more. And then the third time you probably asked me like two or three times also. ... I mean I understand that it. . . it gave you mixed signals but I guess I don’t understand why it doesn’t click in your mind that hey, this is my daughter.

The victim’s mother testified that when she confronted Madison about the 2009 incidents,

[h]e never denied it, he said he made a mistake but she told him it was fine the whole way. That she never told him no. And he was deeply apologetic. He also didn’t understand why she went [to the police] because a week before she had told him that she would go to the police if he didn’t give her [$10,000].

According to the mother, the victim told her “that she was fine, that she never told him no.” She also testified that the victim “got upset” when Madison told her he could not provide her and her friends with an apartment.

A jailhouse informant testified that he befriended Madison when they were “locked up in segregation in Chatham County for like ’bout seven, eight months” in cells that were “right next door to each other.” The informant testified that Madison told him that something had happened twice, but the informant did not know exactly when the first time occurred. Madison told him that his stepdaughter “used to walk around the house with her little shorts and stuff on and that his wife wasn’t turning him on no more ’cause she was overweight or whatever and .. . and that, I guess, that he felt like she was enticin’ him or whatever.”

The director of a child advocacy center testified about delayed disclosure and a child’s accommodation of abuse. She also stated:

When there is a close familial relationship it is much more likely the children will recant their abuse because there may be implicit pressure from family members. You know, mommy cries all the time, siblings are unhappy because their dad or big brother or grandpa’s out of the home. ... If the child was placed out of the home at Greenbriar and foster care with extended family it’s much more likely the children will recant. They just want things to go back to the way they were.

1. Although Madison asserts that insufficient evidence supports all of his convictions, the argument section of his brief specifically addresses only the aggravated sexual battery convictions.

(a) Our review of the evidence reveals sufficient evidence to support Madison’s child molestation conviction. See OCGA § 16-6-4 (a); Wadley v. State, 317 Ga. App. 333, 334-336 (1) (730 SE2d 536) (2012) (sufficient evidence of child molestation where defendant rubbed his penis against victim’s buttocks).

(b) The evidence was also sufficient to sustain Madison’s sexual battery convictions. Madison contends that the State failed to present sufficient evidence that he touched the victim without her consent. See OCGA §§ 16-6-22.1 (“A person commits the offense of sexual battery when he or she intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.”); 16-6-22.2 (“Aperson commits the offense of aggravated sexual battery when he or she intentionally penetrates with a foreign object[] the sexual organ or anus of another person without the consent of that person.”). “[C]onsent induced by force or fear or intimidation does not amount to consent in law. . . .” (Punctuation omitted.) Sears v. State, 182 Ga. App. 480, 483 (4) (356 SE2d 72) (1987), overruled on other grounds by Johnston v. State, 213 Ga. App. 579 (445 SE2d 566) (1994). Based upon the victim’s testimony that she could not tell Madison no “out of fear,” a rational trier of fact could have concluded that Madison committed the acts of sexual battery “without the consent” of the victim. See Clark v. State, 249 Ga. App. 97, 98 (547 SE2d 734) (2001) (whether victim voluntarily submitted to intercourse issue of fact to be resolved by the jury).

(c) We find no merit in Madison’s contention that the State failed to present sufficient evidence of penetration to support his aggravated sexual battery conviction. “[Pjenetration however slight will suffice to satisfy the statutory penetration element of OCGA § 16-6-22.2” and “penetration may be proved by indirect or circumstantial evidence.” Hendrix v. State, 230 Ga. App. 604, 607 (4) (497 SE2d 236) (1997). The victim testified that Madison “started fingering me, playing with my vagina” and that at one point “he tried pushing the chair back like this to get my legs spread more so that he can put his fingers in me deeper, I guess you would say.” This evidence is sufficient to support a finding of penetration by a rational trier of fact. Id.

2. Madison argues that the trial court erred by denying his motion for a mistrial in connection with a reference to the existence of video recordings of Madison’s conduct during the last two 2009 incidents in his office. According to Madison, this court held that it was improper to reference the video recordings, and harm resulted from the jury learning that “there was also a videotape that they had not seen.”

Madison’s contention that the Court of Appeals ruled that it was improper to reference the video is incorrect. The record shows that Madison filed two distinct motions in the trial court in connection with the videotapes: (1) on June 22,2010, Madison moved to suppress the video recordings because they had been obtained in violation of OCGA § 16-11-62 (2); and (2) on October 26, 2011, Madison filed a motion in limine to prohibit the State and its witnesses “from making any direct or indirect reference whatsoever . . . regarding . . . suppressed video recordings.” On September 30, 2010, the trial court granted only the motion to suppress the video recordings as it was the only motion pending at that time, the State filed a notice of appeal on October 7, 2010, and this court issued an opinion affirming the trial court’s order on July 14, 2011. Madison, supra, 311 Ga. App. 31. The trial court granted Madison’s motion in limine regarding the existence of the video recordings almost five months later. Therefore, this court did not hold that it was improper for a State’s witness to reference the videotapes.

We find no merit in Madison’s contention that a mistrial was warranted based upon a witness’s testimony and the trial court’s slip of the tongue during its curative instruction. The record shows that at one point in the jailhouse informant’s testimony, he stated that Madison told him “he had f’ed up. That she had recorded him doin’ —.” The trial court immediately told the witness to “wait” and instructed the jury “to disregard that last statement of this witness.” Defense counsel then asked for a bench conference in which he moved for a mistrial. After denying the motion for a mistrial, the trial court then gave the following curative instruction:

Alright, Ladies and Gentleman, I think I mentioned to you during my opening charge to you that there may be occasion in which the Court might instruct you to disregard certain testimony or certain evidence. And if I do that, you are not to consider it whatsoever. ... Alright, regarding the last statement of this witness I’m going to ask you to disregard his statement entirely concerning any video. Is that clear? And not to consider it whatsoever.

Defense counsel then renewed his motion for a mistrial because the trial court “made it clear that there’s a video” in its curative instruction. The trial court denied the renewed motion.

We find no harm resulted from the witness’s testimony or the trial court’s slip of the tongue in its curative instruction. The jury was already aware that the victim had made audio recordings of her conversations with Madison, “[a]nd a mere verbal inaccuracy in a charge, which results from a palpable ‘slip of the tongue,’ [that] clearly could not have misled or confused the jury is not reversible error.” (Citations and punctuation omitted.) Williams v. State, 267 Ga. 771, 773 (2) (a) (482 SE2d 288) (1997). See Williams v. State, 303 Ga. App. 222, 230-231 (6) (692 SE2d 820) (2010) (concluding no harm resulted from denial of mistrial based upon State’s violation of trial court’s evidentiary ruling).

3. We find no merit in Madison’s claim that the trial court erred by refusing to sever his trial on the 2006 child molestation charge from the 2009 charges.

[A] defendant has an absolute right to severance of charges that are joined solely because they are of the same or similar character. . . . [Severance is not mandatory when offenses have been joined because evidence of one offense could be admitted upon the trial of another offense to show a common motive, plan, scheme, or bent of mind. In the latter circumstance, the decision whether to sever falls within the discretion of the trial court, which should grant a pre-trial severance if it is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense considering whether in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.

(Citation and punctuation omitted.) Green v. State, 279 Ga. 455, 456-457 (2) (614 SE2d 751) (2005).

Here, the evidence surrounding the 2006 charge, as well as the prior difficulty evidence dating back to 2003, were clearly admissible in any trial on the 2009 charges.

Proof of prior difficulties between the defendant and victim — including prior acts of molestation — is admissible without notice or a hearing. This evidence is admissible to show the defendant’s motive, intent, and bent of mind in committing the act against the victim which resulted in the charges for which he was being prosecuted.

(Citation and punctuation omitted.) Gant v. State, 313 Ga. App. 329, 335 (2) (721 SE2d 913) (2011). Additionally, where as here, “the offenses involve an ongoing scheme involving the same type of crime against the same victim,” a motion to sever may be denied. Bolton v. State, 258 Ga. App. 581, 582-583 (1) (574 SE2d 659) (2002). Additionally, the evidence in this case was not complex, and there is no indication that the jury was unable to distinguish the evidence and apply the law intelligently to each offense. See generally Dickerson v. State, 304 Ga. App. 762, 764-765 (1) (697 SE2d 874) (2010). Finally, Madison’s contention that he would have been able to admit additional evidence if the charges had been severed has no merit, because the trial court properly excluded it. See former OCGA § 24-2-3 (a) and (b) (rape shield law).

4. Madison asserts that the trial court erred by charging the jury that “[fjorce maybe inferred as evidence of intimidation arising from familial relationships.” He contends that the trial court should not have charged on force generally, because force is not an element of either child molestation or sexual battery and that no evidence of intimidation was presented at trial to support such a charge. Madison asserts that harmful error results from the last sentence in the following charge by the trial court:

I further charge you, Ladies & Gentleman, a female under the age of sixteen years is legally incapable of giving consent. Force may be proven by direct or circumstantial evidence. Lack of resistance, induced by fear, is not legally cognizable consent, but is force. Force may be inferred as evidence of intimidation arising from the familial relationship.

(Emphasis supplied.)

In a case in which a lack of consent by the victim is an element of the crime, a trial court may properly charge the jury that “consent induced by force, fear, or intimidation does not amount to consent in law....” Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 2.30.14 (2014). See also Curtis v. State, 236 Ga. 362 (1) (223 SE2d 721) (1976); Sears, supra, 182 Ga. App. at 483 (4). Likewise, it is also proper to charge: “Lack of resistance induced by fear is not consent but constitutes force.” Watts v. State, 246 Ga. App. 367, 368-369 (2) (541 SE2d 41) (2000), reversed on other grounds, Watts v. State, 274 Ga. 373 (552 SE2d 823) (2001).

This court has explained that “[mjental coercion, such as intimidation, shows force if the defendant’s words or acts were sufficient to instill in the victim a reasonable apprehension of bodily harm, violence, or other dangerous consequences to herself or others.” (Citation and punctuation omitted.) Thomas v. State, 306 Ga. App. 8, 9 (701 SE2d 525) (2010). Additionally, in the context of whether the State sufficiently proved force in a rape case, we have stated that “lack of resistance, induced by fear, is force, and may be shown by the victim’s state of mind from her prior experience with the defendant and subjective apprehension of danger from him.” (Citation and punctuation omitted.) Williams v. State, 304 Ga. App. 592, 593 (1) (696 SE2d 512) (2010). See also Davenport v. State, 316 Ga. App. 234, 237 (1) (b) (729 SE2d 442) (2012).

In the context of analyzing the sufficiency of the evidence in rape and sodomy cases, both of which require the State to establish force as a separate element of the crime, this court has stated that “[f]orce may be inferred by evidence of intimidation arising from the familial relationship.” Shelton v. State, 196 Ga. App. 163 (1) (395 SE2d 618) (1990). See also Conley v. State, 329 Ga. App. 96, 99 (1) (b) (763 SE2d 881) (2014); Davenport, supra, 316 Ga. App. at 237 (1) (b); Williams, supra, 304 Ga. App. at 593 (1); Williams v. State, 284 Ga. App. 255, 256-257 (1) (643 SE2d 749) (2007); Schneider v. State, 267 Ga. App. 508, 510 (1) (603 SE2d 663) (2004). In each of these cases, the victim was a minor, and it is well established that “the quantum of evidence to prove force against a child is minimal.” (Citation and punctuation omitted.) Haynes v. State, 326 Ga. App. 336, 338 (1) (756 SE2d 599) (2014). See also Brewer v. State, 271 Ga. 605, 607 (523 SE2d 18) (1999) (“As with rape, only a minimal amount of evidence is necessary to prove that an act of sodomy against a child was forcible”). The State relied upon these cases to support its supplemental request to charge on “intimidation arising from the familial relationship,” but none of them involve a jury charge, and our research has revealed no Georgia cases addressing the propriety of such a charge in any case, much less a sexual battery case in which force is not an element of the crime.

Based on the above, we doubt that a charge on force inferred by evidence of intimidation arising from the familial relationship is appropriate in a sexual battery case involving a victim who is over the age of 18. Moreover, the trial court’s charge that “[fjorce may be inferred as evidence of intimidation arising from the familial relationship,” in the absence of an accompanying charge explaining that “mental coercion, such as intimidation, shows force if the defendant’s words or acts were sufficient to instill a reasonable apprehension of bodily harm, violence, or other dangerous consequences to herself or others,” could have confused the jury and resulted in a finding of intimidation based upon the existence of the familial relationship alone. Additionally, the State submitted no evidence showing “words or acts” on the part of Madison “sufficient to instill a reasonable apprehension of bodily harm, violence, or dangerous consequences to [the victim] or others.” The trial court therefore erred by including the last sentence of the State’s requested charge, and we cannot conclude that this error was harmless as the issue of the victim’s consent went to the heart of Madison’s defense. We must therefore reverse his convictions for sexual battery and aggravated sexual battery.

5. We cannot consider Madison’s assertion that he received ineffective assistance of counsel, because he asserted his right as an attorney to act as co-counsel with his retained attorney before and during his trial. See Seagraves v. State, 259 Ga. 36, 39 (376 SE2d 670) (1989). In Mullins v. Lavoie, 249 Ga. 411 (290 SE2d 472) (1982), the Supreme Court of Georgia held that “when a criminal defendant elects to represent himself, either solely or in conjunction with representation or assistance by an attorney, he will not thereafter be heard to assert a claim of ineffective assistance of counsel with respect to any stage of the proceedings wherein he was counsel.” Id. at 412-413. Accordingly, we cannot consider Madison’s ineffective assistance of counsel claims. Id.; Hooker v. State, 278 Ga. App. 382, 387 (5) (b) (629 SE2d 74) (2006). Compare Hance v. Kemp, 258 Ga. 649, 650 (1) (373 SE2d 184) (1988) (considering ineffective assistance claims relating to performance of attorney before defendant sought to act as co-counsel).

6. In his remaining enumerations of error, Madison contends that the trial court erred by denying five of his requests to charge.

“A requested charge must be legal, apt, and precisely adjusted to some principle involved in the case and be authorized by the evidence. If any portion of the request to charge fails in these requirements, denial of the request is proper.” (Citation and punctuation omitted.) Grant v. State, 295 Ga. 126, 131 (5) (b) (757 SE2d 831) (2014). “There is no error in refusing to give a requested charge where the applicable principles are fairly given to the jury in the general charge of the court.” (Citations and punctuation omitted.) Riley v. State, 268 Ga. 640, 643 (5) (491 SE2d 802) (1997). Additionally,

where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.

(Emphasis in original.) Mobley v. State, 279 Ga. App. 476, 479 (2) (631 SE2d 491) (2006).

(a) Madison asserts that the trial court erred by denying his request to charge on simple battery as a lesser included offense of child molestation. Specifically, he asserts that the jury could have concluded from the evidence that he did not touch her in a sexual manner in connection with the 2006 incident. We disagree. The evidence in this case offered the jury a choice between a completed crime or no crime. See McGruder v. State, 279 Ga. App. 851, 855 (2) (b) (632 SE2d 730) (2006); Williams v. State, 248 Ga. App. 316, 320 (4) (546 SE2d 74) (2001); Ney v. State, 227 Ga. App. 496, 502-503 (4) (g) (489 SE2d 509) (1997) (no error in failing to charge simple battery where evidence shows defendant fondled victim, not merely that he made physical contact of an insulting or provoking nature). Additionally, we note that it is not clear whether simple battery may ever be a lesser included offense of child molestation. See McCord v. State, 248 Ga. 765, 766 (285 SE2d 724) (1982); Brooks v. State, 197 Ga. App. 194 (1) (397 SE2d 622) (1990). If “two offenses have entirely different elements and require proof of totally different facts,” one “is not included, as a matter of fact or law,” in the other. Chapman v. State, 280 Ga. 560, 561 (4) (629 SE2d 220) (2006).

(b) Madison asserts that the trial court erred by failing to charge on simple battery as a lesser included offense of aggravated sexual battery. We disagree, because the evidence with regard to the aggravated sexual battery gave the jury a choice between a completed crime or no crime. See De’Mon v. State, 262 Ga. App. 10, 16 (6) (584 SE2d 639) (2003).

(c) Madison cannot demonstrate error from the trial court’s failure to give his request to charge on the age of consent, because the trial court gave a nearly identical charge that covered the same principle. See Napier v. State, 184 Ga. App. 770, 773 (5) (362 SE2d 501) (1987).

(d) Finally, the trial court did not err by failing to give Madison’s Request to Charge 21, because it included material that was not adjusted to the evidence, specifically: “If you find that the alleged victim was not mentally capable of exercising judgment or of expressing intelligent consent or objection to the act of touching, then you would be authorized to find the defendant guilty.” No evidence was presented at trial that the victim was mentally incapable of exercising judgment. “Denial of a requested charge to the jury is proper if the charge is not legal, apt, precisely adjusted to some principle involved in the case, and authorized by the evidence.” Rashid v. State, 292 Ga. 414, 421 (6) (737 SE2d 692) (2013).

Decided November 20, 2014.

Miller & Key, J. Scott Key, for appellant.

Meg E. Heap, District Attorney, Emily C. Puhala, Assistant District Attorney, for appellee.

For the above-stated reasons, we affirm Madison’s child molestation conviction and reverse his sexual battery and aggravated sexual battery convictions.

Judgment affirmed in part and reversed in part.

Barnes, R J., and Branch, J., concur.

       This is Madison’s second appeal to this court. In State v. Madison, 311 Ga. App. 31 (714 SE2d 714) (2011), this court affirmed the trial court’s grant of a motion to suppress.

       At one point in her testimony, the victim explained that she “went hack for a reason and I’m not allowed to discuss that at all.” The trial court granted a motion in limine before trial precluding any State’s witness from referencing two video recordings of the victim’s interactions with Madison in his law office.

       “The term ‘foreign object’ includes not only inanimate instruments, but also a person’s body parts, such as a finger.” (Citation and footnote omitted.) Hardeman v. State, 247 Ga. App. 503, 504 (2) (544 SE2d 481) (2001).

       While Madison successfully sought to preclude any reference to the existence of the videotapes, we note that the victim’s conduct in videotaping Madison might have been relevant and admissible on the issue of consent.

       We note that the rules for admission of prior difficulty evidence under the new Evidence Code are codified at OCGA § 24-4-404 (b).

        Conley, supra (victim 12 or 13 years old); Davenport, supra (victim minor when numerous incidents of rape occurred and it cannot be determined from opinion if rape conviction related to rape that occurred after victim turned 18); Williams, supra, 304 Ga. App. at 593 (1) (victim was a minor at all relevant times); Williams, supra, 284 Ga. App. at 255-256 (victim minor at all relevant times); Schneider, supra, 267 Ga. App. at 509 (victim 15 to 17 years old).

       The State submitted this sole supplemental request during the middle of the trial and two days after it submitted the bulk of its requests to charge.

       The State’s substitution of the word “as” for the word “by” may have compounded this confusion, because it makes the sentence harder to comprehend. We have previously stated, “[fjorce may be inferred by evidence of intimidation arising from the familial relationship.” (Emphasis supplied.) Shelton, supra, 196 Ga. App. at 163 (1). The State requested and the trial court charged, “Force may be inferred as evidence of intimidation arising from the familial relationship.” (Emphasis supplied.)

       We note that fear or intimidation may be used to show a lack of consent. While the State failed to present evidence of intimidation, it did present evidence that the victim did not tell Madison no “out of fear.” Thus, our conclusion that the State failed to present evidence of intimidation to support the charge does not render the evidence insufficient.

       “A person commits the offense of simple battery when he or she either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.” OCGA § 16-5-23.

       “A person commits the offense of child molestation when such person . . . [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years of age with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a) (1).

       ‘ Aperson commits the offense of aggravated sexual battery when he or she intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person.” OCGA § 16-6-22.2 (b).

       We note that “the Double Jeopardy Clause does not preclude the State from retrying a criminal defendant whose conviction is set aside due to trial error, such as the incorrect admission of evidence or improper instructions.” (Citation and punctuation omitted.) Green v. State, 291 Ga. 287, 288 (1) (728 SE2d 668) (2012).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A14A1446.
    MERRITT v. THE STATE.
    (766 SE2d 217)
   Branch, Judge.

On appeal from his conviction for possession of cocaine with intent to distribute, Richard Merritt argues that the trial court erred when it denied his motion to suppress, admitted evidence of two prior drug convictions, considered two prior convictions for sentencing purposes, and denied his motion for new trial in light of newly discovered evidence that Merritt was tasered during his arrest. Merritt also alleges that trial counsel was ineffective in a number of ways. We find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted).

So viewed, the record shows that on January 26, 2009, police arrested Kimberly Taylor at a hotel in Douglas County for possession of drug paraphernalia, including crack pipes. Taylor then agreed to provide police with the names of her drug suppliers. With police recording the conversation, Taylor called a man named Fred and ordered $300 of crack cocaine to be delivered to the hotel. As police continued to record, Taylor called Fred twice more to determine when he would arrive with the cocaine. Fred told Taylor that “Richard” would be arriving shortly after making a payment at an Enterprise car rental office nearby. Taylor knew Richard Merritt, with whom she had smoked crack at the hotel a number of times in the past few weeks, and who had introduced her to Fred.

Shortly after the last of Taylor’s three calls to Fred, Merritt arrived at the hotel in a white Nissan Sentra. After Taylor positively identified Merritt and his vehicle, Merritt entered the hotel carrying a cup of beer in his left hand and with his right hand in his jacket pocket. As he did so, police apprehended him and forced him to the ground. In a report written on the day of Merritt’s arrest, Detective Juan Gonzales stated that a second officer, Tully Yount, had pulled out his taser and had “applied” it to the suspect, at which point Merritt stopped struggling and allowed the officers to arrest him. At trial, Gonzales testified that although Yount had threatened to use the taser on Merritt, he had not actually discharged the device. Yount did not appear at trial.

After Merritt was subdued, police observed a bag later shown to contain 1.59 grams of crack cocaine on the floor next to Merritt’s right jacket pocket. Also on the floor next to Merritt were candies, a lottery ticket, and Enterprise rental car keys, all of which Merritt admitted at trial were his. Merritt was charged with one count each of possession of cocaine with intent to distribute and obstruction of a police officer. At trial, held in March 2010, Merritt also admitted that he had a long history of using crack cocaine, that he had often smoked crack with Taylor, that he had previously purchased drugs from Fred, that he had assisted Taylor in obtaining drugs in the past, and that he had gone to the Enterprise car rental office before arriving at the hotel. Merritt denied that the cocaine found on the floor was his, however. A jury found Merritt guilty of possession of cocaine with intent to distribute but not guilty of obstruction. Merritt was convicted and sentenced as a recidivist to serve 30 years.

At the hearing on Merritt’s motion for new trial, Merritt’s assertions included that a “Use of Force” report written in March 2013, three years after trial, showed that Yount had indeed discharged his taser while holding it against Merritt’s back. Yount also testified at the same hearing that he had discharged his taser in the course of subduing Merritt. The trial court denied Merritt’s motion. This appeal followed.

1. Merritt first argues that the trial court erred when it denied his motion to suppress the bag of crack cocaine found next to him on the ground at the time of his arrest because Taylor had not been shown to be a reliable source of information before she identified Merritt. We disagree.

A trial court’s order on a motion to suppress will not be disturbed if there is any evidence to support it, and the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. We construe all evidence presented in favor of the trial court’s findings and judgment.

Lopez v. State, 292 Ga. App. 518, 519 (664 SE2d 866) (2008) (citation, punctuation and footnote omitted); see also Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

It is true that “when probable cause is based, at least in part, upon information supplied by an informant, the State must demonstrate that the information is reliable.” Lopez, 292 Ga. App. at 520 (citation and punctuation omitted). But it is no less true that probable cause may be provided by “the totality of the circumstances surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability,” with any “deficiency in one” of these categories “compensated for ... by a strong showing as to the other, or by some other indicia of reliability.” Id. Thus we concluded in Lopez that when police had set up the controlled buy, when the informant had been charged, was in custody, and was giving inculpatory information against his own penal interest, and when the informant’s tips as to the drug dealer’s time and mode of arrival had already proved accurate, a trial court did not err when it denied the motion to suppress. Id. at 522. Here, Taylor’s information as to Merritt’s appearance, his car, the timing of his arrival, and his purpose in coming there proved accurate in every material respect, and was against her penal interest in that she was in custody on a charge of possessing drug paraphernalia and had admitted to using drugs with Merritt recently. Thus we cannot say that the trial court erred when it concluded on the basis of all these circumstances that the State had made a sufficiently strong showing of Taylor’s reliability to justify the admission of the evidence against Merritt as found in a search supported by probable cause. Id. at 522 (affirming trial court’s denial of motion to suppress evidence found on the basis of an informant’s disclosures).

2. Merritt also argues that the trial court erred when it admitted two 1988 felony convictions, one for possession of cocaine with intent to distribute and one for simple possession, for purposes of impeachment. We disagree.

Former OCGA § 24-9-84.1 (a) (2), which was in effect at the time of Merritt’s March 2010 trial, provided:

Evidence that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant^]

See also Quiroz v. State, 291 Ga. App. 423, 427-428 (4) (662 SE2d 235) (2008) (requiring trial courts to make express findings that a prior conviction’s probative value outweighs its prejudicial effect). “Factors to be considered [as to probative value] include the kind of felony involved, the date of the conviction, and the importance of the witness’s credibility.” Id. at 428 (4).

Here, the State timely served Merritt with notice of its intent to use the 1988 convictions for cocaine possession in the event that Merritt chose to testify at trial. Before these prior convictions were offered at trial, the court held that their probative value substantially outweighed their prejudicial effect. When Merritt chose, against his own counsel’s advice, to testify in his own defense, counsel made a strategic decision to elicit testimony as to these prior convictions from Merritt in order to “lessen the blow” of this evidence on the jury, which might look more favorably on a defendant willing to admit past mistakes.

As this Court has repeatedly noted, a defendant who testifies “on direct examination about his prior convictions ... may not on appeal challenge the trial court’s ruling and claim that the admission of such evidence was error.” Moseley v. State, 324 Ga. App. 449, 451 (751 SE2d 108) (2013), citing Ohler v. United States, 529 U. S. 753, 760 (120 SCt 1851, 146 LE2d 826) (2000) (“[A] defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error”); see also Contreras v. State, 314 Ga. App. 825, 828 (3), n. 4 (726 SE2d 107) (2012). It follows that this assertion presents nothing for this Court to review. See Moseley, 324 Ga. App. at 451.

3. Merritt also argues that the trial court erred when it considered his 1988 conviction for possession of cocaine with intent to distribute, as well as a 1986 conviction for possession of marijuana with intent to distribute, because these convictions were based on invalid pleas, with the result that he was not properly sentenced as a recidivist under OCGA § 17-10-7 (c). We disagree.

As a preliminary matter, we note that Merritt challenges only two of the four prior felony convictions introduced by the State for sentencing purposes. OCGA §§ 16-13-30, which outlaws the possession “with intent to distribute [of] any controlled substance,” and 17-10-7 (c), the recidivist statute, require that a defendant convicted of only a second offense of drug possession with intent to distribute must serve at least ten years in prison without parole:

OCGA § 16-13-30 (d) provides that upon a second or subsequent conviction of possession of a controlled substance with the intent to distribute, the trial court has the discretion to impose a sentence of “not less than ten years nor more than 40 years or life imprisonment. The provisions of subsection (a) of Code Section 17-10-7 shall not apply to a sentence imposed for a second such offense; provided, however, that the remaining provisions of Code Section 17-10-7 shall apply for any subsequent offense.”

Mann v. State, 273 Ga. 366, 368 (541 SE2d 645) (2001), quoting OCGA § 16-13-30 (d); see also Johnson v. State, 259 Ga. App. 452, 457 (4) (576 SE2d 911) (2003); State v. Jones, 265 Ga. App. 493, 494 (2) (594 SE2d 706) (2004) (OCGA § 17-10-7 (c) applies to a second offense under OCGA § 16-13-30 (b), and the time imposed must be served without parole).

Merritt introduced a transcript of the plea colloquy from the second 1988 conviction to support his argument that this conviction was for simple possession of cocaine rather than possession of that drug with intent to distribute. The record shows, however, that this conviction was entered on the count “as charged,” that is, possession of cocaine “with intent to distribute” the drug. As Merritt himself conceded at trial, moreover, this 1988 conviction was for possession of cocaine with intent to distribute. Merritt’s assertion that he was not advised of his right against self-incrimination before pleading guilty in 1986 to possession of marijuana with intent to distribute also lacks merit in light of the plea transcript he himself introduced, which shows that he was advised of his “right to remain silent” at that time. See Campos v. State, 292 Ga. 83, 85 (734 SE2d 359) (2012) (the terms “right to remain silent” and “right against self-incrimination” are synonymous for the purpose of showing the voluntariness of a plea “if it is plain, as here, that the plea court is referring to the right to remain silent at trial”) (citation and punctuation omitted).

Because the felony convictions not challenged by Merritt would have sufficed to render him a recidivist under these circumstances, and because both of Merritt’s attacks on his prior convictions for drug possession with intent to distribute lack merit, the trial court did not err when it considered these prior convictions and sentenced Merritt to serve 30 years without parole under OCGA §§ 16-13-30 (b) and 17-10-7 (c). Johnson, 259 Ga. App. at 456 (3) (b) (because defendant’s conviction “was his second ... for violating OCGA § 16-13-30 (b), the trial court was not prohibited from sentencing him under both OCGA §§ 16-13-30 (d) and 17-10-7 (c)”) (punctuation and footnote omitted).

4. Merritt also argues that the trial court erred in failing to grant him a new trial in light of the March 2013 “Use of Force” report, which contradicted Gonzales’s testimony at trial that Yount did not use his taser on Merritt at the time of his arrest and thus deprived him of a fair trial. We disagree.

Due process guarantees that a criminal defendant will be treated with that fundamental fairness essential to the very concept of justice. In order to declare a denial of it a court must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.

Davis v. State, 292 Ga. 90, 92 (2) (734 SE2d 401) (2012) (punctuation omitted), quoting United States v. Valenzuela-Bernal, 458 U. S. 858, 872 (III) (B) (102 SCt 3440, 73 LE2d 1193) (1982).

The record shows that the March 2013 report was completed by Yount and signed by a supervising officer who had not been present at Merritt’s 2009 arrest. Yount did not appear at trial, and there is no evidence that Gonzales knew when he testified that Yount had in fact discharged his taser on Merritt. Further, Merritt himself testified that he was tasered on his back “for a couple of minutes,” and the jury acquitted Merritt of obstruction. Given that Merritt “was not prevented in any way from challenging the State’s evidence that he now contends was incorrect,” and that he was acquitted of the charge involving the role of force and resistance in his arrest, we cannot conclude that the later emergence of evidence that Yount actually tasered Merritt rendered Merritt’s trial “fundamentally unfair.” Davis, 292 Ga. at 92 (2) (rejecting defendant’s due process attack on conviction when he “simply chose not to challenge the evidence [later disproved] in any way”).

5. Merritt argues that trial counsel was ineffective when he (a) failed to discredit Gonzales’s testimony as to the circumstances of Merritt’s arrest; (b) opened the door to the admission of Merritt’s prior convictions for voluntary manslaughter and possession of a firearm by a convicted felon; (c) failed to prepare sufficiently so as to avoid Merritt’s and Taylor’s admissions of drug use; (d) failed to emphasize a discrepancy in an officer’s determination of the cocaine’s street value; and (e) failed to object to the use of Merritt’s prior drug convictions to sentence him as a recidivist. These assertions lack merit.

To show ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985), citing Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). As to deficient performance, “every effort must be made to eliminate the distorting effects of hindsight,” and the trial court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” White v. State, 265 Ga. 22, 23 (2) (453 SE2d 6) (1995) (citation and punctuation omitted). As to prejudice, a defendant must show “a reasonable probability of a different outcome” due to trial counsel’s deficient performance. Cobb v. State, 283 Ga. 388, 391 (2) (658 SE2d 750) (2008) (punctuation and footnote omitted). The question of ineffectiveness is a mixed one of both law and fact: “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000) (footnote omitted).

(a) Merritt asserts that counsel failed to highlight discrepancies between (i) Gonzales’s testimony that no taser was used and later evidence showing that it was; (ii) Gonzales’s testimony that he saw the cocaine on the ground after Merritt had been handcuffed and another officer’s testimony that he noticed the cocaine “when we got [Merritt] up and started checking him”; and(iii) Gonzales’s testimony that Merritt began to run toward the front desk when police entered the hotel lobby and other testimony that Merritt was apprehended immediately upon entering the lobby.

(i) Although Merritt claims that counsel could have impeached Gonzales with the March 2013 Use of Force report, the Supreme Court of Georgia has noted that an attorney cannot properly “impeach” a witness with a document prepared by another witness, see Woods v. State, 269 Ga. 60, 63 (3) (495 SE2d 282) (1998), let alone one prepared years after the testimony at issue. Further, Merritt’s acquittal on the obstruction charge arising from his conduct in the few moments before the taser was applied “strongly supports the conclusion that the assistance rendered by the attorney fell within that broad range of reasonably effective assistance.” Moon v. State, 288 Ga. 508, 516 (9) (705 SE2d 649) (2011) (citations and punctuation omitted). Counsel did not perform deficiently when he left this discrepancy for the jury to resolve.

(ii) At the hearing on Merritt’s motion for new trial, counsel testified that the two officers’ statements concerning the location of the cocaine were not contradictory “to the point where [counsel] wanted... to keep on talking about the cocaine.” Further, the fact that the officers described the cocaine as located at slightly different locations on the floor did not render their testimony contradictory. For both of these reasons, the trial court did not clearly err when it determined that counsel’s strategic decision not to draw more attention to the topic of the cocaine’s location was a reasonable one. Barber v. State, 317 Ga. App. 600, 604 (2) (c) (732 SE2d 125) (2012) (counsel was not ineffective in choosing not to object to question as to whether defendant had previously possessed cocaine because counsel’s strategy was for the defendant to acknowledge past drug involvement but dispute ownership of the cocaine at issue).

(iii) Merritt argues that counsel should have highlighted a discrepancy between Gonzales’s testimony at the hearing on Merritt’s motion to suppress that Merritt ran a few steps from police on their arrival and later testimony that he was apprehended immediately. Whether the trial court would have found this discrepancy sufficiently significant to justify further exploration was a strategic decision for trial counsel, and not this Court, to make. See Leopold v. State, 324 Ga. App. 550, 557 (1) (d) (751 SE2d 184) (2013) (counsel’s strategic decision not to inquire into circumstances under which a co-participant fled the state to avoid prosecution was not unreasonable). As the trial court noted in its order denying the motion for new trial, moreover, it denied Merritt’s motion to suppress because the information provided by Taylor had proved accurate, and not because Merritt ran from officers attempting to arrest him. Given Merritt’s acquittal on the obstruction charge and the trial court’s express finding that the issue of Merritt’s flight had no bearing on the admissibility of the cocaine seized at the scene, Merritt cannot show that he was prejudiced by counsel’s failure to highlight this discrepancy. See Crenshaw v. State, 248 Ga. App. 505, 510 (4) (546 SE2d 890) (2001) (counsel was not ineffective in failing to preserve a claim of error as to the trial court’s denial of a motion to suppress drugs found by drug dog who alerted on the exterior of defendant’s car when that fact provided the court with grounds for denial of the motion).

(b) As to Merritt’s assertion that counsel was ineffective in allowing his prior convictions for voluntary manslaughter and firearm possession into evidence, the record shows that in the course of a discussion outside the presence of the jury as to the admissibility of Merritt’s prior drug convictions, the State and counsel showed that both sides were aware of Merritt’s 1989 conviction for voluntary manslaughter in connection with a 1988 robbery. The State also represented that it would not seek to introduce a 1989 conviction for firearm possession as not probative as to the drug possession charge at issue. When defense counsel stated his position that admission of the voluntary manslaughter conviction would be more prejudicial than probative, the State noted that the copy of the conviction was incomplete in that it did not include the sentence imposed. Defense counsel then agreed to the admission of Merritt’s prior drug convictions, but not the voluntary manslaughter or firearm convictions, for purposes of impeachment.

Immediately afterward, and against counsel’s advice, Merritt decided to testify on his own behalf. Counsel began direct examination with the statement of his understanding that Merritt “had a little bit of criminal record in the past.” Merritt agreed, and counsel proceeded to examine him on the subject of his drug convictions so as to “lessen the blow” of the admission of these convictions in accordance with a strategy of presenting Merritt as a drug user but not a drug dealer. Although counsel conducted his direct examination of Merritt under the assumption that the parties and the trial court had agreed to admit only Merritt’s prior drug convictions for purpose of impeachment, the State nonetheless prefaced its cross-examination with a motion, made outside the presence of the jury, to introduce any and all of Merritt’s prior convictions, including the voluntary manslaughter conviction, because counsel had “opened the door” to the issue of his general character by stating that Merritt had only a “little bit” of a criminal record. When the trial court granted the State’s motion, the State proceeded, over Merritt’s objection, to cross-examine him as to his convictions for voluntary manslaughter and possession of a firearm by a convicted felon.

We note that although appellate counsel asserted at the hearing on Merritt’s motion for new trial that the trial court had erred when it allowed the State to cross-examine Merritt as to the voluntary manslaughter and firearm convictions, Merritt has not asserted any such error on appeal. Instead, he has chosen to blame counsel for pursuing what the Supreme Court of Georgia has termed the “reasonable strategy, however mistaken it may appear with hindsight,” of placing the “damaging information” of Merritt’s prior drug convictions before the jury through his direct testimony, “rather than risk having the information extracted from him on cross-examination.” Collier v. State, 288 Ga. 756, 758 (3) (707 SE2d 102) (2011) (citation and punctuation omitted); see also Marshall v. State, 275 Ga. 740, 745 (10) (571 SE2d 761) (2002) (even where counsel’s questions about whether his client had previously “owned a gun” led to the introduction of a prior conviction for stealing one, the questions “were the result of sound trial strategy”; “[w]hether, in hindsight, this tactical decision appears to have been wise or unwise is not determinative of whether it constituted the ineffective assistance of trial counsel”) (footnotes omitted). As we have noted above, moreover, Merritt’s acquittal on one of the two charges against him also supports the conclusion that counsel’s performance was not deficient in this respect.

But even assuming that counsel performed deficiently when he characterized Merritt as having only a “little bit” of criminal history, thus opening the door to the admission of Merritt’s voluntary manslaughter and firearm convictions, Merritt has not established that he suffered prejudice as a result. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U. S. at 686 (II). Here, the evidence against Merritt consisted of not only the accurate information Taylor provided to police of the most relevant circumstances at the controlled buy, including Merritt’s appearance, his car, and the timing of his arrival, but also Merritt’s own admissions at trial as to his drug use with Taylor, his decades-old drug habit, and his ownership of all of the items found on the floor at his arrest (except for the cocaine). In light of this overwhelming evidence, we cannot say that Merritt has shown a reasonable probability that had his voluntary manslaughter and firearm convictions not been introduced, the result of his trial would have been different. See Massey v. State, 306 Ga. App. 180, 184 (4) (a) (702 SE2d 34) (2010) (given overwhelming evidence of defendant’s guilt, it was highly probable that counsel’s failure to request an instruction confining consideration of prior convictions to purposes of impeachment did not contribute to the guilty verdict); Moore v. State, 242 Ga. App. 249, 250 (1) (a) (529 SE2d 381) (2000) (even where counsel was deficient in not objecting to admission of a copy of a prior armed robbery conviction, defendant convicted of armed robbery could not show prejudice in light of the overwhelming evidence of his guilt).

(c) As to Merritt’s claim that counsel failed to prepare him adequately so as to avoid the topic of his longtime drug use, the record shows that counsel advised Merritt not to testify because “he was not going to be a good witness” and he “had a [much] better chance of winning the case” by attacking the credibility of Taylor and the police. The record also shows that counsel never asked Merritt whether he used drugs, but that Merritt volunteered that he had been using crack “for a long time,” and that it was “his pleasure ... to take and smoke a little bit of crack from time to time.” Further, counsel testified that Merritt informed him of his decision to testify only moments before taking the stand, and that counsel advised Merritt at that time “to keep his answers short so that he didn’t open the door to extraneous facts that could hurt him.” In light of this evidence that Merritt ignored counsel’s advice not only not to testify but also, once Merritt decided to testify, for Merritt to keep his answers limited to the topic asked, we cannot say that the trial court clearly erred when it concluded that counsel’s performance was not deficient in this respect. See Stevens v. State, 329 Ga. App. 91, 93 (b) (762 SE2d 833) (2014) (defendant could not show that counsel’s performance was deficient when counsel discouraged him from testifying and when defendant was “adamant” about doing so).

(d) Merritt claims that counsel failed to emphasize a discrepancy between testimony at the hearing on Merritt’s motion to suppress that 3.5 grams of cocaine would have a street value of between $200 and $500 and the evidence that Taylor was willing to pay $300 for a little more than 1.59 grams. Counsel explained at the hearing on Merritt’s motion for new trial that he intentionally avoided any discussion of the amount and value of crack cocaine “because then it looks like we’re sitting there talking about crack because my client indeed had some crack.” Counsel’s strategy was “not to get into a great debate ... over the weights and prices of cocaine,” but rather to “focus on the lack of credibility of the witnesses and the lack of evidence that the State was presenting.”

There was no dispute that the cocaine found next to Merritt weighed 1.59 grams, and evidence as to the drug’s street value had no bearing on the question whether Merritt was guilty of possessing cocaine in an amount sufficient to infer an intent to distribute. See OCGA § 16-13-30 (c) (differentiating penalties for possession of a controlled substance by weight, not street value). It follows that the trial court did not clearly err when it concluded that counsel’s strategic decision not to discuss discrepancies in the value of the crack cocaine at issue was a reasonable one. See Barber, 317 Ga. App. at 604 (2) (c).

Decided November 20, 2014.

Mark R. Jeffrey, for appellant.

Brian K. Fortner, District Attorney, Emily K. Richardson, Assistant District Attorney, for appellee.

(e) As to Merritt’s claim that counsel failed to object to the introduction of his prior drug offenses in support of the imposition of a recidivist sentence, counsel testified that he had received and examined certified convictions for each of those introduced and that no viable objections could be made to any of them. He also noted that Merritt had been represented by counsel in each of the guilty pleas producing convictions, that he and Merritt discussed each of them, and that Merritt never raised any objections to any of the convictions. As we have held in Division 3 above, moreover, Merritt’s 1988 conviction for possession of cocaine with intent to distribute as well as his 1986 conviction for possession of marijuana with intent to distribute were properly introduced in aggravation of punishment. Because any objections to the introduction of these convictions would have lacked merit, trial counsel was not ineffective for failing to make such objections. See Phillips v. State, 329 Ga. App. 279, 281 (2) (a) (764 SE2d 879) (2014) (defendant had not shown that counsel performed deficiently when he failed to obj ect to introduction of prior convictions properly admitted for purposes of the recidivism statute).

For all these reasons, the trial court did not err when it denied Merritt’s motion for new trial.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       OCGA § 17-10-7 (c) provides in relevant part:
      [A]ny person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

       During its deliberations, the jury sent out a question as to the street value of a gram of cocaine.


text:
    A14A1449.
    HOUSTON et al. v. FLORY et al.
    (766 SE2d 227)
   Branch, Judge.

In 1998, a father divided approximately ten acres of land into two parcels and conveyed one each to his son, Earnest Smith, and daughter, Rebecka Flory. The two conveyances included mutual easements over three gravel drives located on the properties, two of which were clearly marked on plats referenced in each deed; the deeds provided only a description of the third gravel drive. Years later, after Michael and Kylie Houston acquired the son’s parcel in a foreclosure sale, a dispute arose as to the location and enforceability of the third easement. Smith and Flory therefore filed suit seeking a declaration of their rights. Upon cross-motions for summary judgment by the Houstons and Smith, the trial court ruled in favor of Smith and Flory; the Houstons appeal. For the reasons that follow, we affirm.

On appeal from the grant of summary judgment, appellate courts “conduct [ ] a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Shekhawat v. Jones, 293 Ga. 468, 469 (746 SE2d 89) (2013) (citation and punctuation omitted); Ga. Dept. of Corrections v. Developers Sur. & Indent. Co., 324 Ga. App. 371, 372 (750 SE2d 697) (2013).

Construed in favor of the Houstons, the record shows that on October 23,1998, James Earl Smith divided his 10.2 acre tract of land by conveying a 7.64 acre tract to Smith (“Tract 2”); the conveyed tract’s northern boundary is both the boundary line with the remaining parcel (“Tract 1”) and a land lot line separating Land Lots 7 on the north, and 8 on the south, of the 5th Land District in Rabun County. The Smith deed references a survey plat dated August 31, 1996. The plat shows the 7.64 acre tract (a/k/a “Tract 2”) as a roughly square parcel below the land lot line immediately south of a rectangular portion of the smaller tract (a/k/a “Tract 1”); on the western end of the rectangular part of Tract 1 is an additional triangular-shaped area of Tract 1 through whose northernmost tip a gravel road enters the property with the same road also providing access to Tract 1 at its western end. The deed to Smith describes this gravel “road” as Gipson Road, a county road, and describes the three gravel “drives” as follows:

Also, as shown on said plat, two (2) gravel drives extend in a Southerly direction from said gravel road and into that portion of said 10.20 acre tract of land that lies in Land Lot 8 of the Fifth land District of Rabun County, Georgia. Also there is a gravel drive that is not depicted on said plat that extends in an Easterly direction along the land lot line from the Easternmost gravel drive that is depicted on said plat. Said gravel drive terminates within the boundaries of said 10.20 acre tract of land.

(Emphasis supplied.)

On December 4, 1998, James Earl Smith conveyed Tract 1 to Flory. The deed references a survey plat dated November 12,1998. The Flory deed contains essentially the same description of the three gravel drives as the Smith deed:

Also, as shown on said plat, two (2) gravel drives extend in a Southerly direction from said gravel road and into said Tract 2. Also there is a gravel drive that is not depicted on said plat that extends in an Easterly direction along the Northerly line of said Tract 2 and Southerly line of Tract 1 from the Easternmost gravel drive that is depicted on said plat. Said drive terminates within the boundaries of said Tract 1 and Tract 2.

(Emphasis supplied.)

Each deed also describes the conveyance of the easements in similar, but not identical, language. The Smith deed first grants to Tract 2 easements for access to Gipson Road; it then subjects Tract 2 to an easement along the third gravel drive thereby giving “additional road access” to Tract 1:

ALSO CONVEYED is a perpetual, non-exclusive road right of way easement over and across said gravel road and the three (3) above described gravel drives for the purpose of providing road access to and from [Tract 2] with Gipson Road, a public road. [Tract 2] is conveyed SUBJECT TO those portions of the same lying within the bounds of said gravel drive that runs along said land lot line. That said gravel drive will also be used to provide additional road access to [Tract 1].

(Emphasis supplied.) In the easement-conveyance language of the Flory deed, there appears to be a typographical error, as indicated in the following quotation, that is not relevant to the issue presented in this appeal. Reading out the typographical error, the Flory deed first subjects Tract 1 to the easements previously granted to Tract 2; it then grants to Tract 1 an easement over the third gravel drive, thereby providing access to Gipson Road:

The above described Tract 2 [sic] is conveyed SUBJECT TO the three (3) above described drives in that said drives provide road access to Tract 2 from Gipson Road, a public road. ALSO CONVEYED is a perpetual, non-exclusive road right of way easement over and across said gravel road that lies along the property line that divides Tract 1 from Tract 2 for the purpose of providing road access to and from [Tract 1] with Gipson Road, a public road.

(Emphasis supplied.)

As can be seen, the two significant asymmetries in the language of the deeds are that the Smith deed specifically subjects those portions of Tract 2 “lying within the bounds of said [third] gravel drive” to the disputed easement in favor of Tract 1; there is no corresponding language in the Flory deed. The Smith deed also states that the third gravel drive provides “additional road access” to Tract 1.

Both deeds also grant the respective owners rights to water from a spring located to the east of both parcels and running across Tract 1 to Tract 2 near the end of the disputed easement; the spring supplies water for Tract 1. Finally, Smith, who lived on the greater tract since the late 1970s, no longer has any ownership interest in Tract 2; his only interest in Tract 1 is that he leases, apparently with an option to purchase, the triangular portion of Tract 1 from his sister, where he lives with his family and helps maintain Tract 1 and the water system. Smith and Flory’s parents reserved a life estate in Tract 1 and they lived on the property until their deaths in 2011.

In 2007, Smith lost title to Tract 2 in foreclosure. On July 30, 2009, the Houstons purchased Tract 2 from CitiMortgage, Inc. The Houstons’ deed provides for the same easements as the Smith deed and it references the same plat referenced in the Flory deed. The Houstons’ deed includes essentially the same language found in the Smith deed that established the easement for the third gravel drive, including part of the asymmetrical language noted above:

Also there is a gravel drive that is not depicted on said plat that extends in an easterly direction along the northerly line of the above conveyed tract 2 from the easternmost gravel drive that is depicted on said plat. Said drive terminates within the boundaries of said tract 1 and tract 2. . . . [Tract 2] is conveyed subject to those portions of the same lying within the bounds of said gravel drive that runs along said northerly line of tract 2 in that tract 1 is also served by said road.

Just prior to closing on the purchase, the Houstons commissioned a survey of Tract 2. Neither the survey nor the Houstons’ own inspection revealed a gravel drive running exactly along the northern property line to Tract 2.

Flory and Smith, however, presented evidence that the third gravel drive lies mostly south of the property line between Tract 1 and Tract 2 and protrudes some twenty to twenty-five feet onto Tract 2 in order to go around an embankment that extends onto Tract 2 and descends approximately ten feet from Tract 1 to the third gravel drive; a septic tank was placed in the embankment in the late 1970s by their father. Smith averred that “[t]he curvature in the easement road around the embankment runs for a distance of approximately 150 feet before turning back toward the land lot line.” Flory added, “that’s where it’s always been.” In their depositions, both Flory and Smith drew indications on the relevant plats to show where they contend the third gravel drive has been located since their father owned both tracts. Smith also averred that he, his sister, and other members of their family, as well as Georgia Power, have used the easement road at issue for many years and that without access to the easement road, large portions of Tract 1 wouldbe inaccessible, in part because of hilly terrain. The easement road provides access to the water system on the eastern portion of Tract 1, which Smith maintains, as well as a barn built on Tract 1 prior to 1998. Smith averred that the easement was graveled when it was originally cut but that, although the gravel has not been refreshed since the late 1980s, years of frequent use have “worn a clear path in the road and packed the red clay down so that it can now be driven on without gravel.”

After the Houstons purchased Tract 2, they attempted to prevent Flory and Smith from using the path that Flory and Smith contend is the easement. Flory and Smith therefore filed suit seeking a declaration of their rights. The Houstons answered and argued that the relevant easement was not enforceable and had been abandoned. They also counterclaimed for a declaration of their rights and alleged that Smith and his sons had damaged Tract 2 and that Smith had blocked the Houstons’ access to Gipson Road. The Houstons sought damages, demanded that any obstruction be removed, and requested attorney fees and punitive damages. Following discovery, the Houstons moved for partial summary judgment seeking to establish that the easement for the third gravel drive is not valid and enforceable; Smith filed a cross-motion on the same issue. Following a hearing, the trial court issued a thorough order and found that the description of the easement in the relevant deeds was sufficient to establish the location of the easement with reasonable certainty, that the Houstons had constructive notice of the easement through the chain of title, and that there was no evidence that Smith and Flory had abandoned the easement. The trial court therefore denied the Houstons’ motion for partial summary judgment and granted Smith’s opposing motion. The Houstons’ counterclaims remain pending below. The Houstons contend the trial court erred by denying their motion and granting Smith’s motion.

1. There is no dispute that the deeds, including the Houstons’ deed, establish an express easement over a third gravel drive and that the Houstons had actual and constructive knowledge of the language in the deeds. The question before us is whether the description of the easement is too vague and indefinite to be enforced.

A description of land in a deed need not be perfect to be valid. CDM Custom Homes v. Windham, 280 Ga. App. 728, 733 (3) (634 SE2d 780) (2006). “A deed is sufficient to pass title, and will not be declared void for uncertainty of description, if the descriptive averments are certain, or if they afford a key by which the land can be definitely located by the aid of extrinsic evidence.” Deaton v. Swanson, 196 Ga. 833, 835 (1) (28 SE2d 126) (1943) (citations omitted). See also Glass v. Carnes, 260 Ga. 627, 632 (4) (398 SE2d 7) (1990) (“the description of the easement in the deed is sufficient if it provides a key so that the land whereon the easement is located can be identified”), citing Champion v. Neason, 220 Ga. 15 (136 SE2d 718) (1964). Without a sufficient key in the deed, extrinsic evidence cannot be added to complete the description. Hedden v. Hilton, 236 Ga. 641-642 (225 SE2d 39) (1976). Whether a description in a deed is sufficient to convey property is a question of law for the court. Murdock v. Ward, 267 Ga. 303, 304 (1) (477 SE2d 835) (1996).

In Champion, a grantor conveyed title to certain property and reserved for herself “the right to use the private driveway as presently located for ingress and egress to her property located immediately to the rear of the above described property.” Champion, 220 Ga. at 15 (punctuation omitted). When successors-in-interest to the servient estate brought suit against the successor-in-interest of the dominant estate, the trial court refused to enjoin the dominant estate holder from using the easement. Id. On appeal, the Supreme Court affirmed and held that the words “the private driveway as presently located” furnished a key to the identification of the easement. Id. at 16. In Turner v. City of Tallapoosa, 289 Ga. 138, 141 (1) (709 SE2d 211) (2011), the Supreme Court affirmed summary judgment against landowners who claimed an easement over adjoining land by looking to “plentiful” extrinsic evidence showing that the city intended to grant the landowners title only to the unused roadbeds located on their property and not the extension of the roadbed across the adjoining land.

Here, the deeds provide a sufficient key to the location of the easement at issue such that extrinsic evidence may be added to determine its precise location. The deeds specify the general location and direction of the easement as running along the property line between Tract 1 and Tract 2 in an easterly direction. And the term “along” can mean something less than precisely tracking another thing. The deeds also specify the starting point as the easternmost gravel drive depicted on the relevant plats. And the deeds specify the end point as terminating within the boundaries of the two tracts. The one asymmetry in the language of the Houstons’ deed mentioned above suggests that the gravel drive falls mainly or entirely on Tract 2. These details in the deeds therefore present a sufficient key to allow introduction of extrinsic evidence. Compare Smith v. Tolar, 281 Ga. App. 406, 408 (636 SE2d 112) (2006) (description of easement insufficient where it did not “clearly identify the dimensions of the easement or where it begins, leads, or ends”).

In addition to the key to the location of the easement provided by the language of the deeds, the appellees presented ample and undisputed evidence that a drive in the approximate location of the third gravel drive described in the deeds has existed since 1978, that since that time it has always curved around an embankment as it runs in an easterly direction toward the back of Tract 1, and that it has never been located on the embankment itself running in a straight line precisely along the property line. For these reasons the trial court did not err in holding as a matter of law that the relevant deeds were sufficient to pass title to an easement located on the path described by Flory and Smith. Turner, 289 Ga. at 141 (1).

2. The Houstons argue that even if an easement was granted, there is an issue of fact as to whether it was abandoned. The trial court disagreed.

“An easement may be lost by abandonment or forfeited by nonuse if the abandonment or nonuse continues for a term sufficient to raise the presumption of release or abandonment.” OCGA § 44-9-6. But for easements acquired by grant, “mere nonuser[] without further evidence of an intent to abandon such easement will not constitute an abandonment.” Hardigree v. Hardigree, 244 Ga. 830, 831 (2) (262 SE2d 127) (1979) (citation omitted). As stated by the Supreme Court,

[t]he law does not favor the extinguishment of easements, and an easement acquired by grant is not extinguished merely by nonuse; there must be clear, unequivocal, and decisive evidence of an intent to abandon the easement.

Whipple v. Hatcher, 283 Ga. 309, 310 (658 SE2d 585) (2008) (citations omitted). No such evidence was presented here.

The Houstons averred that at the time they purchased the property, an electric fence was present on their property that ran along the easternmost gravel drive shown on the plats and that the fence blocked the roadway claimed by Smith and Flory. But Flory testified that the fence could be clipped and unclipped to travel on the easement. And Smith gave undisputed testimony that he, Flory, and his family had made use of the easement ever since his father conveyed the easements in 1998, including to maintain the water lines that come from the spring and which provide water to Tract 1, as well as to access the barn/shed on the eastern end of Tract 1. This evidence does not constitute clear, unequivocal, and decisive evidence of an intent to abandon the easement as required by law. Finally, the Houstons have not shown that failure to refresh the gravel on the disputed drive makes it impassible to travel. And Smith testified that the drive is functional without gravel. Thus, this evidence too is insufficient to show abandonment of the easement.

3. The Houstons also contend that Smith was not entitled to summary judgment in his favor because he is not an owner of any relevant land but rather only has a lease with option to purchase a portion of Tract 1; that any such lease must be in writing in accordance with the Statute of Frauds; and that the portion of Tract 1 that he leases is not connected to the easement at issue. These assertions, however, were not raised and ruled on by the court below. Accordingly, these issues present nothing for this Court to review. See Covington v. Johnson, 284 Ga. 426 (667 SE2d 618) (2008). Moreover, the case remains pending below on the Houstons’ counterclaims, and the trial court has yet to enter a final judgment declaring relief to the appropriate party.

Decided November 20, 2014.

Mitchell L. Baker, Jr., for appellants.

Jones Law, Bonnie L. Jones, for appellees.

For all of the above reasons, the trial court correctly granted summary judgment on the issue of the validity of the disputed easement.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       Although Flory did not file a motion for summary judgment, the trial court granted summary judgment in favor of both Smith and Flory. But, as the Houstons acknowledge, under Georgia law, a trial court may grant summary judgment sua sponte. Ga. Receivables v. Te, 240 Ga. App. 292 (523 SE2d 352) (1999). “In fact, the trial court can grant summary judgment to the ‘non-moving party provided that the grant is proper in all other respects.’ ” Id.

       Unless otherwise shown, “Smith” when used herein refers to Earnest Smith, the son.

       Flory never lived on Tract 1 after she became the owner.

       The plats referenced in the Smith and Flory deeds are almost identical in all relevant details.

       For example, “along” can mean “through, on, beside, over, or parallel to the length or direction of; from one end to the other of.” See www.Dictionary.com. Another definition provides “Extending in a more or less horizontal line on.” See www.oxforddictionaries.com. See also The American Heritage Dictionary of the English Language (1981) (“along” can mean “following the length or path of”).

       Black’s defines “nonuser” as “[t]he failure to exercise a right (such as a franchise or easement), as a result of which the person having the right might lose it.” Black’s Law Dictionary (9th ed. 2009).