text:
    A11A2147.
    COOK v. THE STATE.
    (723 SE2d 709)
   MlKELL, Presiding Judge.

After a bench trial, James Cook was found guilty of hijacking a motor vehicle, armed robbery, aggravated assault, and possession of a firearm during the commission of a felony. He appeals from the denial of his motion for a new trial, asserting on general grounds that the “verdict was contrary to the evidence and without evidence to support it.” For the following reasons, we affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the verdict, and the presumption of innocence no longer applies; further, an appellate court does not weigh the evidence or judge witness credibility, but rather determines whether the adjudication of guilt is supported by sufficient competent evidence. “When the sufficiency of the evidence is challenged, we use the test established by Jackson v. Virginia to determine whether the evidence was sufficient for any rational trier of fact to find the defendant guilty of the crimes charged.” “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s verdict will be upheld.” “In bench trials, the findings of the trial court will not be set aside unless clearly erroneous.”

So viewed, the evidence shows that on July 17, 2002, Cook called his father, James Smith, and asked him to come to his house and for help in obtaining marijuana for his companions. Smith, who has a history of possessing and selling marijuana, said he did not have any, so Cook then asked Smith to drive him and two companions to get their car. Smith drove the car, with Cook and one man in the back seat, and the other man in the front passenger seat. As Smith began to drive, the front-seat passenger pulled out a gun and said, “You know what it is.” Smith believed he was being robbed, but refused to pull over. The front-seat passenger then shot Smith in the leg. Smith steered into the right emergency lane, and the front-seat passenger pushed Smith out of the car and onto the highway near oncoming traffic. During the incident, Cook did not say or do anything to intervene. The front-seat passenger got in the driver’s seat and drove up the road a short distance. Cook then got out of the car, walked back and looked at Smith lying on the ground, but returned to the car without rendering aid.

The trial court found Cook guilty of the crimes of armed robbery, possession of a firearm during the commission of a felony, hijacking a motor vehicle, and aggravated assault.

Cook appeals, enumerating as his sole error that the verdict is contrary to the evidence and without evidence to support it. Cook first argues that the evidence does not establish that he was a party to the crime or a conspirator, and shows only that he was “merely present” during the commission of the crimes. We disagree.

OCGA § 16-2-20 (a), (b) (3), (4) provides:

Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. ... A person is concerned in the commission of a crime only if he . . . [intentionally aids or abets in the commission of the crime; or . . . [intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

To the extent that Cook argues that he was not a conspirator, we note that this court has held that “[w]hile this Code section does not use the word ‘conspiracy’ it is plain that it embodies the theory of conspiracy insofar as it renders one not directly involved in the commission of a crime responsible as a party thereto.”

A person who did not directly commit a crime may be convicted on proof that a crime was committed and that he was a party to that crime. Whether a defendant was a party to the crime and aided and abetted in the commission of a crime is a matter for the trier of fact. “While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” Criminal intent also may be inferred from a person’s conduct during the commission of a crime, and from a person’s words, conduct, demeanor, motive, and all connected circumstances.

Cook testified that when he contacted his father about purchasing marijuana, his father said he did not have any, but drove his car over to pick up Cook and his companions. Cook also admitted that he neither said nor did anything to protest or stop the shooting; to prevent his father from being pushed out of the car; or to assist his father while his father was lying, injured, on the highway. Cook further testified that he never visited his father during the two to three weeks his father was in the hospital.

Further, Smith and one witness testified that while Smith was lying injured in the roadway, Cook got out of the car and walked back to look at him, then left without rendering aid. However, Cook denies walking back to look at his father, and other witnesses testified that they did not see Cook approach his father on foot. “It is of no consequence that [the defendant’s] version of events . . . was in stark contrast to the victim’s. The [trier of fact] apparently chose to believe [the victim].” As we have held,

[t]he weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness for it is the function of the triers of fact to determine to what evidence it gives credence. It is not for us to determine or question how the [trier of fact] resolved any apparent conflicts or uncertainties in the evidence. Rather, on appeal, we indulge every contingency in favor of the verdict.

In this case, there was ample evidence, based upon Cook’s actions, and his presence, companionship, conduct, and demeanor before, during, and after the commission of the crime, for the trial court to conclude that Cook was more than “merely present” during the commission of the crimes at issue.

Further, pretermitting whether Cook’s statement during the sentencing phase of his trial that he made arrangements with others in the vehicle regarding an attack on his father may be considered in assessing the sufficiency of the evidence, we find that the evidence and testimony presented at the trial-in-chief alone were sufficient to authorize the trial court to convict Cook.

In a case similar to the instant case, we found sufficient evidence to uphold the conviction of a defendant as a party to hijacking a motor vehicle where another person held a gun on the victim, and the defendant “made no attempt to distance himself from the hijacking while it was occurring, nor did he offer [the victim] any help whatsoever even after [the other person held] a gun on him.” Even though Cook testified that he did not try to help his father because the back-seat passenger was aiming a gun at Cook and because the others in the vehicle said they knew where he lived and he wanted to protect family members with whom he lives, it is for the trier of fact to determine the believability of such claims. At trial, Cook testified that after the shooting, he did not report the crime to police, and when contacted by them, did not reveal the names or descriptions of the shooter or the other passenger. He testified that he did not report this information because “I really didn’t even want to incriminate myself,” and also because he was scared and wanted to protect his family. However, at trial, he named the shooter and described the appearance and clothing of both individuals in detail, and described the car they were driving. Cook testified that he still lives in the same place, with the same family members, but there is no indication that he ever sought protection for his family. Even though Cook offered an innocent explanation for his conduct, the trier of fact was not required to believe it, nor does Cook’s contention on this point undermine the trial court’s authorization to find that the evidence was sufficient to support Cook’s conviction.

Cook, arguing that value is an element of the offense of armed robbery, also urges that the evidence was insufficient to convict him of this particular crime because the state failed to show the value of the currency taken from Smith. Smith testified that the front-seat passenger pulled a gun on him and took some money from his pocket, in an unspecified amount in excess of $5. This testimony is uncon-tradicted, as Cook’s testimony affirms that the front-seat passenger pulled a gun on Smith, but never addresses whether or not money was taken. OCGA § 16-8-41 (a) defines armed robbery, in pertinent part, as follows: “A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon . . . .” The statute presents no requirement of proof of value. Further, we have held that “[t]he crime of robbery, OCGA § 16-8-41, requires only that property, regardless of value, be taken from the person of another.” The case Cook cites on this point, Stephens v. State, is unpersuasive. Stephens finds that despite a variance between allegations in an indictment and proof presented at trial, the indictment was nonetheless sufficient because the state presented “ample” proof of the amount of money at issue. This does not indicate that a specific value must be proven; it merely invokes the well-trodden principle that a determination of the sufficiency or amplitude of evidence is one which each appellate court must make based on the record presented in the specific case before it, as appellate courts do not weigh evidence or judge witness credibility. On appeal, as long as there is some competent evidence, even if contradicted, the verdict will be upheld. We find no error.

Further, we have affirmed a conviction for armed robbery and aggravated assault where the defendant, while present during the crime, did not verbally threaten the victim; did not hold, shoot, or supply the gun used; and claimed no advance knowledge of the crime. We also have found the evidence sufficient to uphold a conviction for possession of a firearm during the commission of a felony if the defendant, as here, was a party to the crime, but did not possess the weapon.

Decided February 22, 2012.

Thomas S. Robinson III, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

For the foregoing reasons, we find that a rational trier of fact could have found beyond a reasonable doubt that the evidence was sufficient to establish that Cook was guilty of aggravated assault, possession of a firearm during the commission of a felony, hijacking a motor vehicle, and armed robbery. The trial court was authorized to deny Cook’s motion for a new trial.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

       Cook’s motion for a new trial was untimely filed; however, because the trial judge considered and decided this motion on the merits, constituting an implicit grant of permission to file an out-of-time motion for a new trial, we have jurisdiction. See Washington v. State, 276 Ga. 655, 656 (1) (581 SE2d 518) (2003).

        Stone v. State, 257 Ga. App. 492 (571 SE2d 488) (2002).

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

        Craft v. State, 252 Ga. App. 834, 839 (1) (558 SE2d 18) (2001).

       (Citation omitted.) Jackson v. State, 281 Ga. App. 506, 507 (636 SE2d 694) (2006).

       (Citation and punctuation omitted.) Stone, supra.

       (Citation and punctuation omitted.) Osborn v. State, 161 Ga. App. 132, 133 (1) (291 SE2d 22) (1982).

       OCGA § 16-2-21.

        Burks v. State, 268 Ga. 504, 505 (491 SE2d 368) (1997).

       (Citations and punctuation omitted.) Stoe v. State, 187 Ga. App. 171, 173 (3) (369 SE2d 793) (1988).

        Millender v. State, 286 Ga. App. 331, 332 (1) (648 SE2d 777) (2007); OCGA § 16-2-6.

        Williams v. State, 236 Ga. App. 790, 792 (513 SE2d 757) (1999).

       (Citations and punctuation omitted.) Norris v. State, 220 Ga. App. 87, 88-89 (1) (469 SE2d 214) (1996).

        Williams, supra.

        Spradley v. State, 276 Ga. App. 842 (625 SE2d 106) (2005) (jury was free to disbelieve defendant’s claim that he participated in crime under duress because another person was holding him at gunpoint).

       See Engrisch v. State, 293 Ga. App. 810, 811-812 (668 SE2d 319) (2008) (trial court authorized to find sufficient evidence to support armed robbery conviction, and failure of affirmative defense of coercion, where defendant claimed he participated in crime because other participants threatened his children, but where defendant, when apprehended, neither sought protection for his children nor asked about their safety).

        Bonds v. State, 203 Ga. App. 51, 53 (4) (416 SE2d 329) (1992).

       239 Ga. 446 (238 SE2d 29) (1977).

       Id. at 447 (2).

        Stone, supra.

        Jackson v. State, supra.

        Lunz v. State, 174 Ga. App. 893, 894-895 (1) (332 SE2d 37) (1985).

        Howze v. State, 201 Ga. App. 96, 97 (410 SE2d 323) (1991); Brooks v. State, 208 Ga. App. 869 (432 SE2d 612) (1993); OCGA § 16-11-106 (b) (possession of a firearm during the commission of a crime includes situation where the firearm is within arm’s reach).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A11A2339.
    FUTCH v. THE STATE.
    (723 SE2d 714)
   Miller, Judge.

Following a jury trial, Jefferson Futch was convicted of cruelty to animals (OCGA § 16-12-4 (b)). Futch filed a motion for new trial, which the trial court denied. On appeal, Futch contends that (1) the evidence was insufficient to support his conviction; (2) the trial court erred by failing to charge the jury that no criminal liability would attach where a person killed an animal to protect his person, property, or livestock; (3) the trial court’s restitution award was erroneous because the trial court failed to follow certain procedural requirements, and because the State failed to establish the animal’s fair market value; and (4) the trial court erred by denying him a supersedeas bond. After a review of the applicable law and the record, we discern no error and affirm.

On appeal, this Court views the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt under the standard set forth in Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) [(99 SC 2781, 61 LE2d 560)] (1979).

(Citation and punctuation omitted.) Watson v. State, 308 Ga. App. 871 (708 SE2d 703) (2011).

So viewed, the evidence shows that a Labrador retriever, belonging to Futch’s neighbor, went missing one morning, and the neighbor was unable to find the dog. That evening, the neighbor spoke with Futch about an unrelated matter and asked Futch if he had seen the dog. Futch disclosed to the neighbor that he shot and killed the dog because he did not want the dog bothering his goats. Futch admitted to the neighbor, however, that the dog was not in the goats’ pen and was simply barking at the goats. Futch was subsequently arrested and charged with cruelty to animals.

At trial, the neighbor testified that Futch had a reputation in the community for shooting and killing dogs. Several witnesses testified that Futch had admitted that he shot their dogs, and killed a few, because the dogs were allegedly threatening his goats. One witness specifically stated that when he went to retrieve the body of his dead dog from Futch’s property, he saw the bodies of several other dogs in various stages of decay and was too overwhelmed by the stench of decay to even retrieve his dog.

In his defense, Futch and an eyewitness stated that Futch shot the dog that entered his property, which was allegedly not a Labrador retriever. Futch and the eyewitness also testified that Futch shot the dog when they were unable to scare it away and it tried to attack the goats in their pen. Following the presentation of the evidence, the jury found Futch guilty of cruelty to animals.

1. Futch contends that the evidence was insufficient to support his conviction, because the direct evidence in this case did not show that the dog he killed was the neighbor’s Labrador retriever, and the evidence established that he killed the dog to protect himself and his goats. He also argues that his conviction rested solely on circumstantial evidence, which did not exclude every reasonable hypothesis except that of guilt. We disagree.

Pursuant to OCGA § 16-12-4 (b), a person can be held criminally responsible for cruelty to animals if he “causes death or unjustifiable physical pain or suffering to any animal by an act[.]” According to OCGA § 16-12-4 (f), a person is not prohibited from “[djefending his or her person or property, or the person or property of another, from injury or damage being caused by an animal” or “[ijnjuring or killing an animal reasonably believed to constitute a threat for injury or damage to any property, livestock, or poultry,” so long as “[t]he method used to injure or kill such animal [was] designed to be as humane as is possible under the circumstances.”

The evidence in this case, as set forth above, was sufficient to establish that Futch had killed his neighbor’s dog without justification. Significantly, Futch had previously told the neighbor that he shot and killed his Labrador retriever because it had been barking at Futch’s goats. These prior admissions were direct evidence that Futch killed the dog. See OCGA § 24-1-1 (3) (“ ‘Direct evidence’ means evidence which immediately points to the question at issue.”); Avera v. State, 228 Ga. 571, 573 (186 SE2d 867) (1972) (defendant’s admission shortly after a shooting occurred “to the effect that he had shot the deceased was direct evidence of the fact, and thus the conviction does not rest wholly upon circumstantial evidence”); see also Teal v. State, 282 Ga. 319, 327 (3) (647 SE2d 15) (2007) (“A defendant’s incriminating statement is admissible when it constitutes an admission against the defendant’s penal interest because a defendant’s declaration against penal interest is the admission of a party-opponent.”) (citations, punctuation and emphasis omitted).

Moreover, contrary to Futch’s assertion otherwise, the circumstantial evidence was sufficient to support the verdict. To support a conviction based on circumstantial evidence, the proven facts must be consistent with the hypothesis of guilt and exclude every other reasonable hypothesis save that of guilt. Willis v. State, 201 Ga. App. 182 (410 SE2d 377) (1991). The jury decides questions concerning the reasonableness of hypotheses, and where the jury is authorized to find that the evidence was sufficient to exclude every reasonable hypothesis except that of guilt, we will not disturb that finding unless the verdict of guilty is insupportable as a matter of law. Smith v. State, 309 Ga. App. 466, 468 (710 SE2d 654) (2011).

Notably, there was evidence that Futch had a proclivity to kill dogs on his property, Futch killed a dog around the time frame that the neighbor’s Labrador retriever went missing, and the neighbor’s Labrador retriever never expressed any aggressive behavior toward other animals. Notwithstanding the testimony of Futch and an eyewitness that the dog Futch killed was not a Labrador retriever and was threatening Futch’s goats, the jury was entitled to reject this testimony, because it contradicted Futch’s prior admissions to the neighbor. See Alvin v. State, 287 Ga. App. 350, 351 (651 SE2d 489) (2007) (providing that the jury is free to reject the testimony of the defendant where his testimony is inconsistent with other direct or circumstantial evidence). Further, given the above direct and circumstantial evidence, the jury was free to reject Futch’s version of events and was authorized to find that it was not reasonable for Futch to believe that the dog constituted a threat for injury or damage to the goats. Willis, supra, 201 Ga. App. at 183 (“As to conflicting evidence and testimony, the weight of the evidence and credibility of witnesses are questions for the jury.”) (citations and punctuation omitted).

Consequently, the evidence was sufficient to sustain Futch’s conviction for cruelty to animals.

2. Futch also contends that the trial court erred in charging the jury that no criminal liability would attach if he killed the dog in order to protect his livestock. Contrary to his contention, no error has been shown.

Here, the trial court charged the jury that “a person may defend his person or property or the person or property of another from injury or damage being caused by a dog or kill any dog causing injury or damage to any livestock or poultry.” After the trial court charged the jury, Futch specifically stated that he had no objections. Since Futch failed to object to the relevant charge at trial, he has waived his right to appellate review unless he can establish plain error. See OCGA § 17-8-58 (a), (b); Collier v. State, 288 Ga. 756, 758-759 (4) (707 SE2d 102) (2011); Fairwell v. State, 311 Ga. App. 834, 838 (2) (717 SE2d 332) (2011). Plain error is that “which is obvious and affects the appellant’s substantial rights and where exceptional circumstances make it necessary to avoid a clear miscarriage of justice.” (Citations and punctuation omitted.) Rogers v. State, 247 Ga. App. 219, 227 (9) (543 SE2d 81) (2000).

We find no plain error here, because the trial court’s charge on cruelty to animals, as a whole, was consistent with the language of OCGA § 16-12-4, and it adequately explained to the jury that a person was not prohibited from killing an animal if necessary to protect his person or property or that of another. Cf. Corbin v. State, 305 Ga. App. 768, 771 (2) (700 SE2d 868) (2010) (“The only requirement regarding jury charges is that the charges, as given, were correct statements of the law and, as a whole, would not mislead a jury of ordinary intelligence.”) (citation and punctuation omitted).

3. Futch contends that the court erred with respect to its restitution order. Specifically, he argues that the trial court failed to hold a restitution hearing and enter written findings to justify the award, and that the State failed to prove the amount of damages awarded as restitution. We disagree.

(a) Futch’s claims of procedural error are without merit. First, Futch waived any error with respect to the statutory requirements of a restitution hearing under OCGA § 17-14-7 (b). Significantly, at the sentencing hearing,

[Futch] was allowed to offer argument on the issue of restitution, and [he] did not object to the trial court proceeding to decide the issue of restitution at that time. Nor did [he] ask for a continuance, ask that a restitution hearing be set for a later date, or state that [he] had evidence to present on the question of restitution. For these reasons, [he] has waived any error in the decision of the trial court to decide the question of restitution as a part of the sentencing hearing, rather than in a separate and distinct hearing.

(Citations omitted.) Ezebuiro v. State, 308 Ga. App. 282, 285 (2) (a) (707 SE2d 182) (2011).

Second, based on an amendment to the restitution statutes in 2005, a trial court is no longer required to make written findings of fact concerning the factors to be considered in determining the restitution amount, as set forth in OCGA § 17-14-10. Ezebuiro, supra, 308 Ga. App. at 285 (2), 286 (2) (b). Consequently, the trial court’s failure to enter written findings with respect to a restitution award is not reversible error. Id.

(b) Futch further argues that the State failed to establish that the fair market value of the dog was $3,000, which was the amount assessed as restitution by the trial court. When reviewing a restitution award, we must ascertain whether the restitution award was supported by the preponderance of the evidence. McClure v. State, 295 Ga. App. 465, 466 (673 SE2d 856) (2009). The State has the burden of demonstrating the amount of loss sustained by the victim as a result of the offense. OCGA § 17-14-7 (b). The restitution award shall not exceed the victim’s damages, OCGA § 17-14-9; it must also be based upon fair market value, which must be determined exactly. Hawthorne v. State, 285 Ga. App. 196, 197 (1) (648 SE2d 387) (2007).

“Direct testimony as to market value is in the nature of opinion evidence.” OCGA § 24-9-66.

Opinion evidence as to the value of an item, in order to have probative value, must be based upon a foundation that the witness has some knowledge, experience or familiarity with the value of the property in question or similar property and he must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion.

(Citation and punctuation omitted.) Mayfield v. State, 307 Ga. App. 630, 633 (2) (c) (705 SE2d 717) (2011).

Futch contends that, under OCGA § 17-14-9, the neighbor’s damages were limited to what the neighbor paid to obtain and train the dog, which, according to the neighbor’s testimony, totaled $750. The neighbor’s expenses, however, were not necessarily indicative of the dog’s fair market value in this case. Significantly, the neighbor further developed the dog’s hunting skills over the course of the dog’s one-year life span; the neighbor regularly took the dog bird hunting, where the dog would retrieve birds upon command. Moreover, the chairman of the Georgia Hunting and Fishing Federation opined that the fair market value of a one-year-old Labrador retriever that had been trained to hunt and retrieve would be between $3,000 and $5,000. The chairman explained that this figure was based upon having sold, purchased, owned, trained, and hunted with numerous Labrador retrievers for over 30 years, and having access to several magazines and catalogs that listed prices for trained Labrador retrievers. While Futch attempted to discredit the witness’s valuation, “the weight to be given opinion evidence of market value is a matter for the factfinder.” (Punctuation and footnote omitted.) Rushing v. State, 305 Ga. App. 629, 632 (2)-(3) (700 SE2d 620) (2010). Evidence of the witness’s knowledge, experience, and familiarity with the value of Labrador retrievers trained to hunt created a basis for the value stated. See id. Consequently, the trial court did not err in assessing the value of the neighbor’s Labrador retriever at $3,000.

Decided February 22, 2012.

Aleta D. Larger, William W. Turner III, for appellant.

Catherine H. Helms, District Attorney, Jennifer D. Hart, Assistant District Attorney, for appellee.

4. Given our affirmance of Futch’s conviction, his contention regarding the trial court’s denial of his motion for a supersedeas bond is rendered moot. See Davis v. State, 164 Ga. App. 633, 636 (7) (298 SE2d 615) (1982); Reid v. State, 129 Ga. App. 367 (199 SE2d 674) (1973).

Judgment affirmed.

Ellington, C. J., and Doyle, P. J., concur.

       We note that Futch’s first enumeration of error sets forth more than one error, in violation of OCGA § 5-6-40. In our discretion, however, we elect to address all of his arguments. See Thomas v. State, 291 Ga. App. 795, 801 (4) (662 SE2d 849) (2008).


author: MlKELL, Presiding Judge.

text:
    A11A2395.
    CAMPBELL v. THE STATE.
    (724 SE2d 24)
   MlKELL, Presiding Judge.

After a jury trial, Robert Campbell was found guilty of hijacking a motor vehicle (Count 1), aggravated assault (Count 3), possession of a firearm during the commission of these crimes (Counts 2 and 4), armed robbery (Counts 5, 7, 9, and 10), possession of a firearm during the commission of one of the armed robberies (Count 8), and criminal attempt to commit the offense of armed robbery (Count 6). Campbell appeals his convictions on all counts, challenging the sufficiency of the evidence in his sole enumeration of error. We affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’s case, we must uphold the jury’s verdict.

So viewed, the evidence shows that Campbell and, variously, three companions went on a four-day crime spree, from September 4 to 7, 2006, stopping at various locations in and around Valdosta and Lowndes County to commit crimes against six victims. Campbell and his companions carried three weapons, including a 9 millimeter handgun and a BB gun, both belonging to Campbell. The group, often with Campbell at the wheel, drove from one crime scene to another in cars owned by Campbell’s grandmother: a Chrysler New Yorker and a red Pontiac Grand Prix. Upon reviewing security footage from a Video Warehouse, where the first incidents occurred, and a Wal-Mart, where some of the subsequent crimes occurred, police identified the Grand Prix and the Chrysler, respectively, as being present at or near times when crimes were committed at those locations; police also saw on the security videos men wearing clothing identified by victims and witnesses as being worn by Campbell and his companions during the commission of the crimes. Two of Campbell’s companions, Antonio and Shamon Denson, pled guilty to robberies connected with this case and testified at Campbell’s trial; and Campbell also testified in his own behalf. Campbell’s third companion, Jermaine Demps, did not testify.

As to the events which occurred outside the Video Warehouse, Campbell asserts insufficient evidence underlying his convictions for hijacking a motor vehicle, aggravated assault, and possession of a deadly weapon during the commission of those crimes. The evidence shows that the victim, Rick Carter, left the Video Warehouse and saw Campbell, whom he identified at trial, standing beside his car. When Carter got into the car, Campbell insisted that the vehicle belonged to him and had been stolen, and demanded paperwork showing ownership. Carter testified that he thought Campbell “just wanted to take my car” and that when he resisted, Campbell rested a gun on the sill of the open driver’s side window. Carter grabbed the gun, was pulled out of his car window, and tussled with Campbell on the ground. The gun discharged, shooting Carter in the leg. Campbell fled without taking the car. Campbell argues he did not draw the gun, but rather that it fell from his waistband and discharged accidentally, and points to his own and the victim’s trial testimony that the shot could have been accidental. However, the victim, another witness, and even Campbell in an interview with police, said Campbell pulled out the gun. Campbell’s companion, Shamon, testified that Campbell told him after the incident that he “pulled back and shot [Rick Carter].”

As to Campbell’s conviction for hijacking a motor vehicle, “[a] person commits the offense of hijacking a motor vehicle when such person while in possession of a firearm . . . obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so.” Thus, the statute specifically includes attempt as a method of committing the crime of hijacking a motor vehicle; and in order to commit attempt, the defendant must be found to have taken a “substantial step” toward the commission of the hijacking. Campbell’s assertion of ownership and the fact that Carter was pulled out of the vehicle constitute substantial steps toward the commission of a hijacking. As to Campbell’s conviction for aggravated assault, a person commits an assault when he either “[ajttempts to commit a violent injury to the person of another; or . . . [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury”; and “[a] person commits the offense of aggravated assault when he . . . assaults [another] . . . with a deadly weapon.” Campbell asserted ownership of the car and displayed a deadly weapon when Carter resisted. Carter’s act in grabbing the gun and in tussling with the man who held it indicates a reasonable apprehension of harm, and Carter suffered serious injury from the shot. As to Campbell’s convictions for possession of a firearm, it is undisputed that Campbell was in possession of a 9 millimeter handgun during the commission of these crimes, and that he fled the scene.

While the jury heard conflicting testimony as to whether Campbell drew his weapon and whether the shot was accidental, the issue of intent is for the jury:

The jury ... is solely responsible for determining the accused’s intent in committing an act. . . . Criminal intent may be inferred from the circumstances, and the jury was not required to accept [Campbell’s] trial testimony as true, but could judge his credibility and weigh his testimony against other evidence.

The evidence in the case at bar authorized the jury to find Campbell guilty beyond a reasonable doubt of hijacking, aggravated assault, and possession of a firearm during the commission of both crimes (Counts 1, 2, 3, and 4).

As to the subsequent incidents, Campbell contends that the evidence was insufficient to support his convictions for the armed robberies of Brian Titus, Michael Branham, Sean McClune, and Martha Luna, and of the attempted armed robbery of Lena Sanders. This argument fails.

Campbell argues that the state failed to prove beyond a reasonable doubt that Campbell, “while brandishing a firearm, took the property of another,” and because “[n]o alleged victim/witness . . . identified Mr. Campbell as the perpetrator of an offense against them.” However, one need not be identified as the “perpetrator” of a crime to be found guilty of it. A person who did not directly commit a crime may be convicted on proof that a crime was committed and that he was a party to that crime; his status as a party or aider and abettor of a crime is a matter for the trier of fact.

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

OCGA § 16-8-41 (a) does not mandate that a defendant “brandish” a firearm in order to be convicted of armed robbery. Instead, the statute provides that “[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon.” A defendant may be convicted of armed robbery and of possession of a firearm during the commission of a crime even if an accomplice carried the weapon, under the principle that the defendant was a party to the crime.

As to Campbell’s conviction for the armed robbery of Titus, the record shows that Titus was delivering food for a restaurant when, upon returning to his vehicle, he saw Antonio taking a food bag from his car. When Titus yelled, Antonio put the bag down, pointed a gun at him, and took $37 from him. Titus identified the gun, State’s Exhibit 2. Antonio admitted to using a BB gun to rob Titus; identified State’s Exhibit 2 as that gun; and said it belonged to Campbell. Police found this gun when they searched the Chrysler parked at Campbell’s residence. Antonio and Campbell both testified that Campbell alerted Antonio when the victim started walking back to his car. Antonio testified that he divided Titus’s money with Shamon and Campbell, and that both men knew where the money came from. Campbell denied receiving the money.

Under Georgia law, a defendant may not be convicted solely upon the uncorroborated testimony of an accomplice. However,

it is well established that slight evidence of corroboration connecting the defendant to the crime satisfies the corroboration requirement, and that evidence may be entirely circumstantial. . . . The amount of corroborative extraneous evidence necessary to connect the accused with the commission of the offense lies peculiarly within the province of the factfinder.

Whether Campbell was a party to the crime against Titus was a question for the jury, which it chose to resolve against Campbell. We have affirmed a conviction for armed robbery where the defendant, while present during the crime, did not verbally threaten the victim; did not hold or shoot the gun used; and claimed no advance knowledge of the crime. The fact that Campbell accompanied Antonio to the intended crime scene, served as Antonio’s lookout, and shared in the proceeds, all indicate that Campbell was a party to the crime. Thus, the evidence in the case at bar authorized the jury to find Campbell guilty of the armed robbery of Titus (Count 5) beyond a reasonable doubt.

The day after the Titus robbery, the evidence shows that Campbell called Antonio and asked, “Do you want to go back to Valdosta and rob somebody?” Campbell, Antonio, Shamon, and Demps then drove to Wal-Mart together. Antonio testified that the group saw Sanders walking alone and “decided we were going to go rob her,” discussing the robbery both before and after it occurred. Antonio admitted pointing a gun at Sanders and telling her to “freeze,” but she had no money. Campbell was convicted of attempted armed robbery, and on appeal, asserts insufficiency of the evidence, pointing to conflicting testimony as to his role in this incident. This argument fails. Another participant, Shamon, testified that Campbell did not leave the vehicle during the attempted armed robbery. Campbell told police that he drove the car and waited in the car, knowing that Antonio and Demps had gone to rob Sanders. At trial, however, Campbell denied knowing about the attempted robbery beforehand, but admitted learning about it afterward. It is for the jury to resolve any conflicts in the evidence, and the evidence adduced at trial was sufficient for the jury to find Campbell guilty beyond a reasonable doubt of the attempted armed robbery of Sanders (Count 6).

Campbell also challenges the sufficiency of the evidence supporting his convictions in connection with the armed robbery of Bran-ham. Antonio testified that after attempting to rob Sanders, the group “rode around . . . looking for somebody else to rob.” They spotted Branham walking alone, and Shamon testified that Campbell, who was driving, said, “y’all think he got some money.” Campbell pulled the car in front of Branham and stopped. Antonio pointed a gun at Branham and told him to “freeze and get down on the ground,” while Demps went through the victim’s pocket, taking his phone, about $7 in cash, and a credit card. Shamon served as lookout; Campbell waited with the car and served as the getaway driver. Campbell testified that he knew his companions “was gone jump out and do something to [Branham], but I didn’t know what”; and that he “seen the dude on the ground, but I ain’t see no gun.”

Although the victim, Branham, did not testify, our Supreme Court has found evidence sufficient to show the elements of armed robbery even absent testimony by the victim. The evidence in this case was sufficient for any rational trier of fact to find Campbell guilty beyond a reasonable doubt of the armed robbery of Branham (Count 7). The evidence was likewise sufficient for the jury to find Campbell guilty of possession of a firearm during the commission of this crime (Count 8), under the principle of party to the crime, even though the weapon was brandished by his companion rather than by Campbell himself.

The group next encountered McClune, a pizza deliveryman. McClune testified that as he approached his car, two men “penned” him between parked cars; and that one pointed a gun at him and demanded money. The men took about $20, a check, McClune’s wallet, and his bank card. The men wore masks obscuring their faces, but one was wearing a black jersey with white numbers on it. Shamon and Antonio both testified that Campbell wore a black or gray jersey with the number 18 and was carrying the 9 millimeter handgun when he stopped the car and got out with Demps to follow McClune. When officers later searched Campbell’s house, they found there a black jersey with the number 18 on it, a loaded 9 millimeter handgun, and McClune’s bank card. The evidence was sufficient for any rational trier of fact to find Campbell guilty of the armed robbery of McClune (Count 9) beyond a reasonable doubt.

Decided February 22, 2012.

Phillips & Nemajovsky, Mark T. Phillips, for appellant.

J. David Miller, District Attorney, Bradfield M. Shealy, Jessica W. Clark, Assistant District Attorneys, for appellee.

Early the next day, the group returned to Wal-Mart, where Luna was standing outside talking on a payphone. She testified that a man walked past several times, then returned with two other men and, screaming and cursing, demanded her purse and showed her a gun. Campbell admitted speaking to Luna, but denied involvement in the crime. Luna testified that one of the men took her purse, which contained some cash and a gold butterfly necklace charm, and ran. Antonio testified that he robbed Luna at gunpoint while wearing the number 18 jersey, which Campbell had taken off. In an interview with law enforcement, Campbell told an officer that he waited in the car while Antonio robbed Luna, knowing Antonio was going to rob her but not wanting to participate, then left the scene. Upon a subsequent search of Campbell’s house, police found Luna’s gold butterfly necklace charm in the Chrysler parked in Campbell’s driveway. Another police officer testified that when he reviewed Wal-Mart’s security footage, he “could see Ms. Luna where she got robbed,” although not distinctly, and could see the Chrysler pass through the area. Contrary to Campbell’s contention, the evidence adduced at trial was sufficient for any rational trier of fact to find Campbell guilty beyond a reasonable doubt of the armed robbery of Luna (Count 10).

Judgment affirmed.

Dillard and Boggs, JJ., concur.

       443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       (Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004). See also Craft v. State, 252 Ga. App. 834, 839 (1) (558 SE2d 18) (2001) (appellate court determines whether evidence was sufficient for any rational trier of fact to find beyond a reasonable doubt that defendant was guilty of crimes charged).

       To avoid confusion, the Densons will be hereinafter identified by their first names.

       (Emphasis supplied.) OCGA § 16-5-44.1 (b).

        Daniels v. State, 306 Ga. App. 577, 583 (3) (703 SE2d 41) (2010).

       OCGA § 16-4-1 (“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime”).

       Cf. Brown v. State, 312 Ga. App. 489, 490-491 (1) (718 SE2d 847) (2011) (repeatedly pulling at a door handle constitutes a substantial step toward commission of offense of entering an automobile).

       OCGA § 16-5-20 (a) (1), (2).

       OCGA § 16-5-21 (a) (2).

       OCGA § 16-11-106 (b) (the offense of possession of a firearm during the commission of a crime occurs when “[a]ny person . . . shall have on or within arm’s reach of his . . . person a firearm . . . during the commission of. . . [a]ny crime against or involving the person of another”).

       See Brown, supra (fleeing the scene of the crime points to the question of guilt in a circumstantial manner).

       (Citations and punctuation omitted.) Gordon v. State, 294 Ga. App. 908, 910 (1) (670 SE2d 533) (2008) (evidence found sufficient even though defendant claimed he accidentally shot victim); accord Winfrey v. State, 286 Ga. App. 450, 452 (1) (b) (649 SE2d 561) (2007) (evidence sufficient where defendant claimed at trial that gun fired accidentally, but his earlier testimony indicated he fired the gun out the window before the victim jumped from the car). See also Adams v. State, 293 Ga. App. 377, 379 (1) (667 SE2d 186) (2008) (intent to use object as deadly or offensive weapon may be inferred from circumstances); OCGA § 16-2-6 (criminal intent will not be presumed, but trier of fact may find such intent upon consideration of words, conduct, demeanor, motive, and all other connected circumstances).

       OCGA § 16-2-21.

        Burks v. State, 268 Ga. 504, 505 (491 SE2d 368) (1997).

       (Citations and punctuation omitted.) Stoe v. State, 187 Ga. App. 171, 173 (3) (369 SE2d 793) (1988). Accord Millender v. State, 286 Ga. App. 331, 332 (1) (648 SE2d 777) (2007) (criminal intent inferred from defendant’s conduct in acting as lookout and additional show of force during robbery).

       (Emphasis supplied.) OCGA § 16-8-41 (a).

        Howze v. State, 201 Ga. App. 96, 97 (410 SE2d 323) (1991). See also OCGA § 16-2-20 (defining elements of party to a crime).

       OCGA § 24-4-8; Daniels, supra at 581 (1).

       (Citations and punctuation omitted.) Daniels, supra, citing Emory v. State, 301 Ga. App. 771, 774 (2) (688 SE2d 682) (2009).

        Lunz v. State, 174 Ga. App. 893, 894-895 (1) (332 SE2d 37) (1985).

       See id. at 895 (1).

        Rankin, supra, 278 Ga. at 705.

       See Freeman v. State, 284 Ga. 830, 832 (1) (672 SE2d 644) (2009) (evidence sufficient to uphold conviction for attempted armed robbery where defendant discussed robbery with perpetrator beforehand, drove perpetrator to scene, but did not actively participate in robbery). See also Daniels, supra.

        McKisic v. State, 238 Ga. 644, 645-646 (2) (234 SE2d 908) (1977).

       See Lunz, supra.

       See Howze, supra.

       See Rankin v. State, 309 Ga. App. 817, 818 (1) (711 SE2d 377) (2011) (sufficient circumstantial evidence supported defendant’s armed robbery conviction where he was found in possession of clothes similar to those worn by the robber, a gun similar to that used in the crime, and cash in similar denominations as that taken by the robber).

        Lunz, supra; Rankin, supra, 309 Ga. App. at 818-819 (1).


text:
    A11A1665.
    MELESA v. THE STATE.
    (724 SE2d 30)
   Miller, Judge.

Following a jury trial, Evan Melesa was convicted of conspiracy to traffic in methamphetamine over 400 grams (OCGA §§ 16-4-8, 16-13-31 (e) (3)). Melesa filed a motion for new trial, which the trial court denied. On appeal, Melesa contends that the evidence was insufficient to support his conviction. For the reasons set forth below, we affirm.

On appeal from a criminal conviction, this court views the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. This court neither weighs the evidence nor judges the credibility of witnesses, but only determines whether the evidence presented at trial was sufficient for a rational trier of fact to find the defendant guilty of the crime beyond a reasonable doubt.

(Citation omitted.) Cochran v. State, 300 Ga. App. 92 (684 SE2d 136) (2009).

So viewed, the evidence shows that Melesa met Anthony Cebada in the fall of 2004 and sold Cebada one pound, or approximately 450 grams, of methamphetamine for approximately $14,000. Thereafter, Cebada made monthly purchases of methamphetamine from Melesa, buying one or more pounds each time. Cebada coordinated the transactions with Melesa or his translator, who was always present with Melesa during the transactions.

In February 2005, Melesa and his translator delivered three pounds of methamphetamine to Cebada at his house. Cebada could only pay for half of the methamphetamine at the time, but agreed to pay Melesa back an additional $15,000 for the rest of the methamphetamine. About a week later, Cebada called to inform Melesa that he had the $15,000. Melesa sent his translator, who traveled in Melesa’s vehicle, to retrieve the $15,000 from Cebada.

Around this time, police officers instituted surveillance on Cebada and began wiretapping his cell phones based on the suspicion that Cebada was distributing methamphetamine. Police officers observed the translator leave Cebada’s residence, initiated a traffic stop, and recovered $15,000 in cash from the translator.

Officers later arrested Cebada after observing an apparent drug transaction and seized a bag containing approximately 401.5 grams, slightly less than a pound, of methamphetamine along with approximately $16,000 in cash during the search of Cebada’s vehicle. When Cebada implicated Melesa as one of his drug suppliers, officers arrested Melesa and charged him with conspiracy to traffic in methamphetamine.

At trial, the State presented the testimony of several witnesses, including Cebada and Melesa’s translator, and played the intercepted phone calls between Cebada, Melesa, and Melesa’s translator in which they discussed the methamphetamine transactions. Following the presentation of evidence, the jury found Melesa guilty of conspiracy to traffic in methamphetamine over 400 grams.

On appeal, Melesa contends that the evidence was insufficient to sustain his conviction. We disagree.

Pursuant to OCGA § 16-13-31 (e), trafficking in methamphetamine is committed when “[a]ny person who knowingly sells, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine[.]” Additionally, “[a] person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy.” OCGA § 16-4-8.

To prove conspiracy, two elements must be shown: an agreement and an act in furtherance of it. The [Sjtate need not prove an express agreement between the co-conspirators; it only must show that two or more persons tacitly came to a mutual understanding to accomplish or to pursue a criminal objective. Conspiracy may be shown through circumstantial evidence. The conspiracy may be inferred from the nature of the acts done, the relation of the parties, the interest of the alleged conspirators and other circumstances, such as presence, companionship and conduct before and after the commission of the alleged offense.

(Punctuation and footnotes omitted.) Williamson v. State, 300 Ga. App. 538, 547-548 (5) (685 SE2d 784) (2009).

It has been held that the mere agreement of one person to buy contraband which another agrees to sell does not establish that the two acted in concert so as to support a finding of conspiracy. However, where the supplier “fronts” contraband to a recipient with the expectation that the latter will sell it and pay him from the proceeds, it has been held that he retains a sufficient interest in the subsequent sale to establish that he acted in concert with the recipient to distribute the contraband.

(Citations and punctuation omitted.) Osborn v. State, 161 Ga. App. 132, 133-134 (1) (291 SE2d 22) (1982).

Decided February 23, 2012.

David G. Daniell, for appellant.

T. Rabb Wilkerson III, District Attorney, Daryl E. Manns, Assistant District Attorney, for appellee.

Here, Cebada’s testimony established that Melesa supplied him with several pounds of methamphetamine, and that in February 2005, Melesa fronted him at least one pound, which was approximately 450 grams, of methamphetamine with the expectation of being paid back. Cebada’s testimony was amply corroborated by other evidence in the record. Notably, Melesa’s translator testified that he retrieved $15,000 from Cebada as payment for the fronted methamphetamine, police officers recovered $15,000 in cash from the translator upon leaving Cebada’s residence, and there were recorded conversations between Cebada, Melesa, and his translator in which they discussed methamphetamine transactions. See Burton v. State, 293 Ga. App. 822, 825 (1) (668 SE2d 306) (2008) (holding that an accomplice’s testimony must be corroborated by other evidence, even slight evidence, that connects the accused to the crime, and that it is for the jury to determine whether the corroborating evidence is sufficient). Based on this evidence, the jury was authorized to conclude that Melesa and Cebada jointly participated in a conspiracy to traffic approximately 450 grams of methamphetamine. See Peacock v. State, 301 Ga. App. 873, 875 (2) (689 SE2d 853) (2010) (evidence that a large scale drug dealer fronted defendant methamphetamine with the expectation that defendant would sell the drugs and pay dealer from the proceeds was sufficient to establish a conspiracy to distribute methamphetamine); Hernandez v. State, 182 Ga. App. 797, 800 (1) (357 SE2d 131) (1987) (evidence showing that defendant did not give three kilograms of cocaine to a distributor, but expected to be paid back, was sufficient evidence to convict the defendant of conspiracy to traffic cocaine). Accordingly, the evidence was sufficient to sustain Melesa’s conviction on the charge of conspiracy to traffic in methamphetamine over 400 grams. Hernandez, supra, 182 Ga. App. at 800 (1).

Judgment affirmed.

Ellington, C. J., and Doyle, P. J., concur.

       If the quantity of methamphetamine is 400 grams or more, the penalty is a mandatory minimum term of imprisonment of 25 years and a fine of $1 million. OCGA § 16-13-31 (e) (3). The penalties for conspiracy may not exceed the maximum punishment prescribed for the offense that was the object of the conspiracy. OCGA § 16-13-33.


text:
    A11A1770, A11A1795.
    A11A1771, A11A1796, A11A2005, A11A2006.
    A11A1772, A11A1797.
    SHROPSHIRE v. ALOSTAR BANK OF COMMERCE (two cases). MILTON ORGANIZERS, LLC et al. v. ALOSTAR BANK OF COMMERCE (four cases). KLESKO et al. v. ALOSTAR BANK OF COMMERCE (two cases).
    (724 SE2d 33)
   MlKELL, Presiding Judge.

In these related cases, the maker and certain individual guarantors of two promissory notes appeal the trial court’s orders granting summary judgment and final judgment in favor of lender Nexity Bank (the “Bank”). The two loans at issue were made in connection with appellants’ efforts, ultimately unsuccessful, to form a new bank in Georgia. Because the underlying documents in these cases are the same, and because the appellants have raised some identical arguments, we have consolidated these cases for disposition. In Case Nos. A11A1770, A11A1771, A11A1795, and A11A1796, we affirm the trial court’s grant of summary judgment to the Bank; in Case Nos. A11A2005 and A11A2006, we vacate the final judgment orders; and we remand these cases for further proceedings consistent with this opinion. In Case Nos. A11A1772 and A11A1797, we reverse the trial court’s grant of summary judgment in favor of the Bank and against appellant Ryan Klesko, and remand for consideration of the pending jurisdictional issues; and we affirm the grant of summary judgment in favor of the Bank against appellant Richard Spear and remand for further proceedings consistent with this opinion.

On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. On summary judgment, after the movant makes a prima facie showing of its entitlement to judgment as a matter of law, the burden then shifts to the respondent to come forward with rebuttal evidence. To do so, the respondent must set forth specific facts showing the existence of a genuine issue of disputed fact.

Viewing the evidence in the light most favorable to the non-moving party, as we must, the record reflects that the Bank made two loans to the borrower, Milton Organizers, LLC (“Milton LLC”): one was evidenced by a Commercial Promissory Note (the “Note”), executed by Milton LLC on October 19, 2007; the other was evidenced by a Commercial Line of Credit Agreement and Note (the “LOC”), executed by Milton LLC on December 29, 2006. Payment of both loans was guaranteed by appellants George Shropshire, Joseph Lockwood, John Howell, Brent Baker, Orlando Wilson, Charles Shultz, Klesko, and Spear.

The Note, in the principal amount of $2,100,000, contemplated payments of interest only until the maturity date, at which time the principal and any accrued and unpaid interest became due. Until the maturity date, the Note provided for a variable interest rate based on “Wall Street Journal Prime.” After default, however, the Note provided for interest on the unpaid balance at 18% per annum. The maturity date, originally October 19, 2008, was eventually extended to December 31, 2009. On that date, appellants defaulted and failed to pay off the principal due under the Note ($2,099,996.20).

The LOC had an initial credit limit of $750,000; an interest rate of 6.750% per annum, to be adjusted daily based on “Wall Street Journal Prime”; and a maturity date of December 29, 2007. Like the Note, the LOC contemplated payments of interest only until the maturity date, when principal and any accrued and unpaid interest became due; and the interest rate after default was a flat 18% per annum. The Bank and Milton LLC later modified the LOC on several occasions, to increase the credit limit to $1,500,000; to adjust the pre-maturity interest rate; and to extend the maturity date, eventually, to December 31, 2009. On that date, the outstanding principal under the LOC was $1,480,000. Milton LLC and the guarantors failed to make this payment and defaulted on the LOC.

On April 15, 2010, the Bank filed two separate actions against appellants: one seeking recovery under the Note, and the other seeking recovery under the LOC. The Bank subsequently moved for summary judgment in both actions, first against Milton LLC and guarantors Shropshire, Lockwood, Howell, Baker, Wilson, and Shultz; and later against guarantors Klesko and Spear. In neither lawsuit did the defendants request a hearing on the Bank’s summary judgment motions, and no hearing was held.

On March 17, 2011, in the Bank’s action on the Note, the trial court granted summary judgment in favor of the Bank and against defendants Milton LLC, Shropshire, Lockwood, Howell, Baker, Wilson, and Shultz. On the same day, in the Bank’s action on the LOC, the trial court entered an identical order granting summary judgment to the Bank against the same defendants (these orders hereinafter sometimes collectively referred to as the “Milton Orders”). In a separate order entered in each lawsuit, the court granted summary judgment against defendants Klesko and Spear on the Note and on the LOC. In none of these orders, however, did the court set forth the dollar amounts owing and awarded to the Bank under the Note or the LOC. From these orders the defendants appeal.

After appellants filed notices of appeal as to the Milton Orders, the trial court entered a final judgment order in each action, in which the court set forth the amounts awarded to the Bank under the Note and the LOC, respectively. Appellants appeal from these orders as well.

Case Nos. Al 1A2005 and Al 1A2006

1. In Case Nos. A11A2005 and A11A2006, appellants Milton LLC, Lockwood, Howell, Wilson, Shropshire, and Shultz appeal from the final judgment orders entered by the trial court. Appellants contend, and appellee Bank concedes, that the trial court was without jurisdiction to enter these orders, because they were entered after notices of appeal as to the summary judgment orders had already been filed. We agree. “OCGA § 5-6-46 (a) provides that the filing of a notice of appeal serves as supersedeas when all costs in the trial court are paid. This automatic supersedeas deprives the trial court of jurisdiction to modify or alter the judgment in the case pending the appeal.” Accordingly, we vacate both final judgment orders entered by the trial court and remand for further proceedings consistent with this opinion.

Case Nos. A11A1770, A11A1771, A11A1795, and A11A1796

2. In Case Nos. A11A1770, A11A1771, A11A1795, and A11A1796, borrower Milton LLC and guarantors Shropshire, Lockwood, Howell, Baker, Wilson, and Shultz appeal the Milton Orders, in which the trial court granted summary judgment to the Bank on the Note and the LOC. We first address appellants’ contention that the trial court erred in considering the amended affidavits filed by the Bank in support of its motion for summary judgment. We find no error.

In support of its motions for summary judgment, the Bank submitted the affidavits of its employee Joseph Sugg. The affidavits were filed on July 26, 2010, contemporaneously with the filing of the Bank’s summary judgment motions; and in each affidavit, Sugg referred to an attached Exhibit A, a ledger recording the payment history of the loan at issue. Subsequently, on September 3, 2010, the Bank filed summary judgment reply briefs in each lawsuit, attaching to each an amended Sugg affidavit. In the action on the Note, the Bank explained that the wrong Exhibit A had been attached to Sugg’s original affidavit; and that, in order to correct this clerical error, Sugg’s amended affidavit had been filed with the correct exhibit attached. In the action on the LOC, the Bank explained that the amended Sugg affidavit was filed in answer to appellants’ response to the Bank’s summary judgment motion; and that the amended affidavit contained updated information as to principal payments on the Note made by other guarantors (who are not parties to these appeals).

Defendants moved to strike the amended affidavits in both lawsuits on September 16, 2010; and on September 21, 2010, the Bank moved for leave of court to consider the amended affidavit in both lawsuits. The trial court did not rule on any of these motions.

(a) Appellants assert that the trial court erred in not granting their motions to strike Sugg’s amended affidavits from the record, on the ground that these amended affidavits were not filed contemporaneously with the Bank’s motions for summary judgment in each action. However, the trial court failed to rule on appellants’ motions to strike, nor did appellants seek a ruling in either lawsuit. “It is the duty of a litigant to obtain a ruling on his motions or objections.” Appellants’ failure to obtain rulings on their motions to strike Sugg’s amended affidavits resulted in a waiver of appellate review of that issue.

Even had this issue not been waived, however, it is without merit. Appellants cite OCGA § 9-11-56 (c), which provides that motions for summary judgment “shall be served at least 30 days before the time fixed for the hearing.” We note that in both the underlying lawsuits, no hearing was requested or held. Thus, the 30-day period never applied in these cases. Appellants also rely on OCGA § 9-11-6 (d), which provides that “[w]hen a motion is supported by affidavit, the affidavit shall be served with the motion.” As this Court has explained, the purpose of this contemporaneous filing requirement “is to ensure that the other side has adequate notice of and opportunity to respond to such evidence.” The Bank submitted Sugg’s amended affidavits more than six months before the entry of the orders granting summary judgment, thus obviating any surprise to appellants. “Moreover, the requirement of simultaneous filing [found] in OCGA § 9-11-6 (d) is not absolute, and the trial court is authorized to extend the period for filing the movant’s affidavits.” In this case, it is apparent that the trial court so extended the time for filing the amended affidavits, as both Milton Orders recite that the court considered the pleadings, evidence, and all other materials in the record in each case. Because the amended affidavits were filed far in advance of the trial court’s summary judgment rulings, and because the Bank explained its reasons for filing the amended affidavits, and “because, in the absence of evidence in the record to the contrary, we must presume the trial court acted correctly,” we decline to find that the trial court acted improperly in considering the amended affidavits.

(b) Appellants contend that Sugg’s amended affidavits fail to show any basis for the loan instruments’ variable interest based on Wall Street Prime Rate. Contrary to appellants’ contention, however, the amended Sugg affidavits are sufficient to support the Bank’s allegations as to the interest charges on the loans.

It is true that, absent evidence to establish the variable interest rate, defined in the debt instrument as a fixed percentage above a particular prime rate, summary judgment for the lender would be improper in the face of the debtor’s denial of the interest amount sought. As to the Note, however, the Note loan payment history attached to Sugg’s amended affidavit showed that the interest on that loan was paid through the date of default; and the Bank did not seek to recover any pre-default interest, but only post-default interest at the flat 18% default interest rate. As to the LOC, to the extent the Bank sought pre-default interest, the LOC loan payment history attached to Sugg’s amended affidavit set forth the specific variable interest rates charged over time, from the LOC’s inception through its maturity date. As this Court has held, “a bank employee’s uncontested affidavit setting forth the amount of interest that had accrued authorized an award of interest as a matter of law, where, as here, the defendant never came forward with contrary evidence.” Appellants have not come forward with contrary evidence in this case. Further, Sugg’s amended affidavits in both lawsuits, attesting to a post-default interest rate of 18% per annum, provided a sufficient basis for computing the interest rate from the date through which interest is calculated in the affidavit (August 31, 2010) to the date that judgment is entered.

3. Appellants contend that the trial court erred in granting summary judgment to the Bank because the evidence submitted by the Bank was insufficient to prove the amounts owed under the Note or under the LOC. However, the trial court ruled for the Bank in each of the challenged summary judgment orders on the issue of liability only. As to liability, “[a] plaintiff seeking to enforce a promissory note establishes a prima facie case by producing the note and showing that it was executed. Once that prima facie case has been made, the plaintiff is entitled to judgment as a matter of law unless the defendant can establish a defense.” It is undisputed that Milton LLC executed the Note and the LOC; that the appellant guarantors executed the guaranty agreements as to both the Note and the LOC; and that Milton LLC defaulted under the Note and the LOC. Thus, the Bank established a prima facie right to recover against appellants on both of the loan instruments at issue. Moreover, appellants have failed to raise a defense. Their argument goes to the issue of the amount of money owed, not to liability vel non.

Therefore, we affirm the trial court’s orders granting summary judgment in favor of the Bank and against appellants Milton LLC, Shropshire, Lockwood, Howell, Baker, Wilson, and Shultz; and we remand for further proceedings proving the damages to be awarded to the Bank and entering judgment in a sum certain.

Case Nos. A11A1772 and A11A1797

4. In Case Nos. A11A1772 and A11A1797, appellant Klesko raised the affirmative defense of lack of personal jurisdiction, both in his answer and again in his response to the Bank’s motion for summary judgment; thus, Klesko has preserved this issue for adjudication. But the trial court did not address Klesko’s defense of lack of personal jurisdiction, either in its orders granting summary judgment to the Bank or otherwise. The trial court’s ruling granting summary judgment on the merits of the Bank’s claim against Klesko was therefore premature. Because “OCGA § 9-11-56 contemplates a judgment on the merits, and a motion for summary judgment is designed to test the merits of a claim[,] ... a defense such as lack of personal jurisdiction is generally not a proper subject for summary judgment.”

Klesko’s liability under his guaranties of the Note and the LOC, as well as his defense of failure of consideration, are matters to be considered by a court having proper jurisdiction of the merits. Thus, the trial court in this case was first required to rule on whether the Bank’s complaints against Klesko should be dismissed for lack of personal jurisdiction under OCGA § 9-11-12 (b) (2). Accordingly, we reverse the grant of summary judgment against Klesko in Case Nos. A11A1772 and A11A1797, and remand these cases for consideration of the pending jurisdictional issue. In light of the foregoing, we do not address Klesko’s remaining enumerations of error.

5. In Case No. A11A1772, appellant Spear contends that the Bank failed to mitigate its damages, as required by OCGA § 13-6-5, by electing to sue on the LOC and the guaranties instead of pursuing a nonjudicial foreclosure on the real property given as security for the LOC. This issue was addressed in our recent decision of REL Dev. v. Branch Banking &c. Co., which is on all fours with the case before us and which is controlling as to this issue. We decline to revisit this issue.

Appellant further invites us to overturn our Supreme Court’s 1926 decision in Reid v. Whisenant. This we are powerless to do. This enumeration fails.

6. In Case No. A11A1797, Spear contends that an issue of fact exists as to whether his guaranty of the LOC was supported only by past consideration, because the guaranty in question was not dated. It is true that

[a] promise to pay the pre-existing debt of another, without any detriment or inconvenience to the creditor or any benefit secured to the debtor in consequence of the undertaking, is a mere nudum pactum. . . . Past consideration — one which has already served its purpose in a former transaction [ — ] will not support a contract of guaranty.

But Spear has not raised a genuine issue of fact as to the consideration for this guaranty. Spear has admitted that he executed the guaranty of the LOC, but he has submitted no evidence that the consideration given for the LOC was only “past” consideration. In particular, he has submitted no evidence, by affidavit or otherwise, that his guaranty of the LOC was executed after the LOC had already been executed. The cases cited by Spear are distinguishable from the case at bar on this ground. This enumeration fails.

7. In Case No. A11A1797, Spear contends that his guaranty of the LOC was limited to the principal amount of $750,000. This contention is without merit.

The guaranty defined the term “Debt” to include: “debts, liabilities, and obligations of the Borrower [Milton LLC] . . . and all extensions, renewals, refinancings and modifications of these debts whether now existing or created or incurred in the future.” Under the guaranty, Spear specifically agreed to guaranty the $750,000 loan set forth in the original LOC executed on December 29, 2006, as well as those amounts incurred from all future extensions, modifications, and renewals of the loan:

Decided February 23, 2012.

Schreeder, Wheeler & Flint, David H. Flint, John A. Christy, Jared W. Heald, Philip R. Green, Kalka & Baer, A. Bryan Baer, Mitchell T. Bagwell, for Shropshire and Milton Organizers, LLC.

Stone & Baxter, Ward Stone, Jr., Christopher W. Terry, Matthew S. Cathey, for Klesko and Spear.

Arnall, Golden & Gregory, Matthew T. Coveil, for Alostar Bank of Commerce.

I absolutely and unconditionally agree to all terms of and guaranty to you the payment and performance of each and every Debt. . . that the Borrower . . . may now or at any time in the future owe you, including, but not limited to the following described Debt(s): Promissory Note in the amount of $750,000.00 dated December 29, 2006. I guaranty the Debt up to the principal amount of $750,000.00 plus accrued interest, attorney’s fees and collection costs, when allowed by law, and all other amounts agreed to be paid under all agreements evidencing the Debt and securing the payment of the Debt. You may, without notice, apply this Guaranty to such Debt of the Borrower as you may select from time to time.

(Emphasis supplied.) Thus, the plain language of the guaranty includes amounts beyond the initial $750,000 loan. As the trial court has ruled only on the issue of liability, as discussed in Division 3 above, we affirm the grant of summary judgment in favor of the Bank and against Spear, and we remand for further proceedings proving the damages to be awarded to the Bank and entering judgment in a sum certain.

Judgment affirmed in Case Nos. A11A1770, A11A1771, A11A1795, and A11A1796, and cases remanded with direction. Judgment affirmed in part and reversed in part in Case Nos. A11A1772 and A11A1797, and cases remanded with direction. Judgment vacated in Case Nos. A11A2005 and A11A2006, and cases remanded with direction. Dillard and Boggs, JJ., concur.

       Nexity Bank was the predecessor in interest to appellee Alostar Bank of Commerce.

       (Citations omitted.) Oasis Goodtime Emporium I v. Crossroads Consulting Group, 255 Ga. App. 375, 376 (565 SE2d 573) (2002). See OCGA § 9-11-56 (e).

        Lawyers Title Ins. Corp. v. Griffin, 302 Ga. App. 726, 727 (691 SE2d 633) (2010).

       The other individuals who executed guaranties of the Note are not parties to the appeals in these cases.

       In Case Nos. A11A1770, A11A1771, A11A1795, and A11A1796, appellants challenge the entry of the final judgment orders in their third enumeration of error, on the same grounds.

       (Citations and punctuation omitted.) In re Estate of Zeigler, 259 Ga. App. 807, 808 (1) (578 SE2d 519) (2003). Accord Lawyers Title Ins. Corp., supra at 729 (1).

       See OCGA §§ 9-11-6 (b), (d); 9-11-56 (c).

       (Punctuation and footnote omitted.) Leone v. Green Tree Servicing, 311 Ga. App. 702, 705 (3) (716 SE2d 720) (2011).

       See id. (no ruling on motion to strike affidavit waived appellate review).

       (Citation and punctuation omitted.) Alcatraz Media v. Yahoo! Inc., 290 Ga. App. 882, 884-885 (1) (b) (660 SE2d 797) (2008).

       See id. at 885 (1) (b); Riberglass, Inc. v. ECO Chemical Specialties, 194 Ga. App. 417, 419 (1) (a) (390 SE2d 616) (1990).

       (Citation omitted.) Riberglass, supra. Accord Alcatraz, supra. See OCGA § 9-11-6 (b) (providing for an extension of time for filing by order of court).

       (Citation omitted.) Riberglass, supra.

       See Garrett v. Atlantic Bank &c. Co., 157 Ga. App. 103-104 (1) (276 SE2d 152) (1981) (fact issue remained where bank failed to introduce any evidence to establish interest rate based on bank’s prime rate, and debtor denied liability), citing Moore v. Wachovia Mtg. Co., 138 Ga. App. 646, 647 (1) (226 SE2d 812) (1976) (where bank offered no evidence by way of stipulation, deposition, or admission to establish variable interest rate based on bank’s prime rate during life of note, summary judgment was improper in the face of debtor’s denial of interest due).

       See Dawson Pointe, LLC v. SunTrust Bank, 312 Ga. App. 338, 339 (718 SE2d 570) (2011), distinguishing on this ground Garrett and Moore, supra.

       (Citation omitted.) Id.

       Id.

       (Punctuation and footnote omitted.) Core LaVista, LLC v. Gumming, 308 Ga. App. 791, 795 (1) (b) (709 SE2d 336) (2011).

       See OCGA § 9-11-12 (b) (2), (h) (1) (B).

       See Hight v. Blankenship, 199 Ga. App. 744, 745 (406 SE2d 241) (1991) (“Since the ... jurisdictional issues have not been waived, nor have they been addressed in the lower court, the trial court’s ruling on the merits of the case was premature”). Accord Baiye v. Gober, 254 Ga. App. 288, 290 (2) (562 SE2d 249) (2002).

       (Punctuation and footnotes omitted.) Scanlan v. Tate Supply Co., 303 Ga. App. 9, 10 (a) (692 SE2d 684) (2010), citing Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615 (208 SE2d 459) (1974).

       See Hight, supra (defendant’s statute of limitation defense was matter for consideration by court with proper jurisdiction of merits of case).

       See id. Accord Smith v. Atlantic Mutual Companies, 283 Ga. App. 349, 351-352 (2) (641 SE2d 586) (2007).

       See Hight, supra.

       OCGA § 13-6-5 (“Where by a breach of contract a party is injured, he is bound to lessen the damages as far as is practicable by the use of ordinary care and diligence”).

       305 Ga. App. 429, 431-432 (1) (699 SE2d 779) (2010).

       161 Ga. 603, 510 (131 SE 904) (1926) (rule requiring plaintiff to mitigate damages “is not applicable where there is an absolute promise to pay”) (citation omitted).

       See Sumitomo Corp. v. Deal, 256 Ga. App. 703, 705 (1) (569 SE2d 608) (2002) (“Even if we were convinced that a more enlightened rule should replace the current ancient law, this [C]ourt has no authority to overrule or modify a decision of the Supreme Court of Georgia as the decisions of the Supreme Court of Georgia shall bind all other courts as precedents”) (citation and punctuation omitted).

       (Citations and punctuation omitted.) Gwinnett Commercial Bank v. Flake, 151 Ga. App. 578, 582-583 (8) (260 SE2d 523) (1979).

       See, e.g., Helton v. Jasper Banking Co., 311 Ga. App. 363, 365-366 (715 SE2d 765) (2011) (guarantor’s affidavit that wrong date had been typed on guaranty and that it had in fact been executed after the note had already been renewed raised fact issue as to whether guaranty was supported by consideration); Foreman v. Chattooga Intl. Technologies, 289 Ga. App. 894, 896 (658 SE2d 470) (2008) (conflicting affidavits between debtor and creditor as to failure of consideration precluded grant of summary judgment to either party); Jackson v. First Bank of Clayton County, 150 Ga. App. 182, 184 (256 SE2d 923) (1979) (fact that guaranty was executed one day after making and funding of loan was immaterial where loan and guaranty were one transaction).


author: PHIPPS, Presiding Judge.

text:
    A11A1980.
    HOWARD v. PEACHBELT HEALTH & REHABILITATION CENTER, LLC et al.
    (723 SE2d 718)
   PHIPPS, Presiding Judge.

We granted Angela Howard’s application for discretionary appeal in this workers’ compensation case. Howard appeals a superior court order affirming the decision of the appellate division of the State Board of Workers’ Compensation (“Board”) to adopt the award of the administrative law judge (“ALJ”), denying her claim for disability income benefits arising from an accident that occurred during her employment with Peachbelt Health & Rehabilitation Center (“Peachbelt”). Key Risk Insurance Company, as the insurer for Peachbelt, was also a party to this suit.

Howard sought benefits with respect to two accident dates: June 12, 2009 and July 16, 2009. Benefits were denied with respect to both dates. On appeal, Howard contends the superior court erred in affirming the Board’s award concerning the July 16, 2009 accident because: (1) in reaching a decision, the ALJ failed to accept a stipulation by the parties; and (2) Peachbelt’s asserted defense was precluded because at the time of the accident, Peachbelt knew that Howard had a pre-existing medical condition. For the reasons that follow, we reverse the superior court’s judgment as to the July 16, 2009 accident, with direction that the case be remanded to the Board.

1. Howard argues that in reaching a decision, the ALJ erroneously failed to accept a stipulation made by the parties that she suffered an injury from the July 16, 2009 accident; and because she had no notice that the ALJ would not accept the stipulation, she was denied the opportunity to introduce evidence showing injury from the July 16, 2009 accident. Peachbelt denies stipulating that Howard “suffered a compensable accident or injury arising out of and in the course and scope of her employment on July 16, 2009.”

As a factfinder, the Appellate Division [of the State Board of Workers’ Compensation] is authorized to assess witness credibility, weigh conflicting evidence, and draw factual conclusions different from those reached by the ALJ who initially heard the dispute. So long as there is some evidence to support the State Board’s decision, findings of fact by the State Board are conclusive and binding on reviewing courts, and judges lack authority to set aside an award based on disagreement with the Board’s conclusions. However, erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, are subject to the de novo standard of review in superior court and on appeal to this court.

“A stipulation is any agreement made by attorneys respecting business before the court. . . ,” “A stipulation by the parties upon which a resolution of some issue is to be made is binding.” During the hearing, the ALJ stated the following:

The parties have entered into a number of facts as follows: . . . On [June 12, 2009] Ms. Howard had an accident arising out of and in the course of her employment when she was sitting on a stool which slid out from under her and threw her into a window seal striking her neck and upper back. . . . On July 16, 2009 [Howard] had another accident arising out of and in the course of her employment when the stool on which she was sitting slid out from under her and she sustained neck injuries. She continued to work through July 27, 2009. She has been temporarily totally disabled since that date as a result of her work injury. . . .
That concludes the stipulations of the parties. Counsel, any correction or additions to what I have summarized?

Neither party offered any corrections; Howard’s counsel only inquired about a stipulation concerning Howard’s last day of work. Thus, Peachbelt is correct that there was no stipulation of a compensable accident or injury; there was, however, a stipulation that Howard sustained neck injuries at work, as summarized above by the ALJ.

Despite the parties’ stipulation, however, the ALJ considered other evidence on whether Howard suffered an injury from the July 16, 2009 accident in addition to the injury suffered from the June accident, and concluded that “although the employer/ensurer stipulated that there was a second accident in July, there was no additional injury.” As a result, the ALJ entered an award denying Howard’s claim for disability arising from the July 16, 2009 accident, based on a finding that Howard “did not sustain another injury on that date, but rather only renewed symptoms from the June 12, 2009 accident.”

Decided February 23, 2012.

Carl A. Veline, Jr., for appellant.

Bovis, Kyle & Burch, Benjamin A. Leonard, Sarah E. Stottle-myer, for appellees.

“The stipulation was entered between the parties in open court. Accordingly, the stipulation was conclusive so as to preclude the introduction of contradictory evidence.” Consequently, the ALJ erred in considering evidence regarding whether Howard suffered an injury from the July 16, 2009 accident and in making factual findings that contradicted the stipulation by the parties. It follows that the superior court erred in affirming the award of the Board. To rule otherwise would be to work an injustice upon Howard who asserts that she prepared her case on the basis that the stipulation was binding. The judgment of the superior court affirming the decision of the Board is reversed with direction that the case be remanded to the Board for action in accordance with what is stated in this opinion.

2. Howard also contends the superior court erred in affirming the award concerning the July 16, 2009 accident because at the time of the accident, Peachbelt knew that Howard had a pre-existing medical condition and was therefore barred from asserting a particular defense. Because of our holding in Division l, we need not reach this issue.

Judgment reversed and case remanded with direction.

Andrews and McFadden, JJ., concur.

        Home Depot v. McCreary, 306 Ga. App. 805, 808-809 (2) (703 SE2d 392) (2010) (citations and punctuation omitted).

        Hodges v. Hodges, 261 Ga. 843, 844 (1) (413 SE2d 191) (1992) (citation omitted); Greeson v. State, 253 Ga. App. 161, 163 (1) (558 SE2d 749) (2002).

        Baars v. Freeman, 288 Ga. 835, 838 (2) (a) (708 SE2d 273) (2011) (citations and punctuation omitted).

       (Emphasis supplied.)

        Driver v. M & O, Inc., 189 Ga. App. 509 (376 SE2d 220) (1988) (citations and punctuation omitted); Food Giant v. Brown, 174 Ga. App. 485, 486 (330 SE2d 183) (1985).

        Driver, supra at 509-510.

       See id. at 510.

       See Hodges, supra at 844 (2); Food Giant, supra.

       See Driver, supra; Stokes v. Coweta County Bd. of Ed., 313 Ga. App. 505 (722 SE2d 118) (2012); see also Home Depot, supra at 810 (2).

       Supra.


text:
    A11A2286.
    GHODRATI v. STEARNES et al.
    (723 SE2d 721)
   MlKELL, Presiding Judge.

Vahid Ghodrati appeals the trial court’s grant of summary judgment to his former employer, Volvo Service Center, Inc. (“VSC”), and his former co-workers, Truman Stearnes and Jeremiah Stearnes, on his claim for intentional infliction of emotional distress. Because Ghodrati has failed to present evidence that he suffered “severe” emotional distress as a result of appellees’ conduct necessary to prevail on a claim of intentional infliction of emotional distress, we affirm.

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

So viewed, the record reflects that Ghodrati worked as an auto technician at VSC from November 2007 until January 2009. During his employment there, Ghodrati claims that he suffered verbal abuse of a sexual and discriminatory manner by other technicians, Jeremiah Stearnes and Truman Stearnes. Ghodrati deposed that Jeremiah and Truman addressed him with discriminatory and racist slurs and made lewd and inappropriate sexual comments about him. He further deposed that he “was made uncomfortable and embarrassed in front of customers. And it was a pretty uncomfortable and hostile work environment for me.” Ghodrati claims that these actions caused him to have trouble sleeping, have nightmares, get anxiety attacks and “when VSC comes to mind [he would] feel uncomfortable and get in the panic mode.” In January 2009, Ghodrati was fired from VSC.

Ghodrati then filed the present lawsuit alleging intentional infliction of emotional distress, slander, punitive damages, and costs against Jeremiah, Truman and VSC. Appellees counterclaimed for attorney fees and expenses of litigation. Appellees filed a motion for summary judgment on the intentional infliction of emotional distress claims. After oral argument, the trial court granted the motion for summary judgment in favor of appellees, holding that Ghodrati “did not produce evidence that the emotional harm he suffered was so severe that liability arose on the part of [defendants.”

Ghodrati contends that the trial court erred in granting summary judgment to appellees, arguing that he produced sufficient evidence that his emotional distress was severe enough to be actionable.

It is well settled that to recover on a claim of intentional infliction of emotional distress, “a plaintiff must show evidence that: (1) defendants’ conduct was intentional or reckless; (2) defendants’ conduct was extreme and outrageous; (3) a causal connection existed between the wrongful conduct and the emotional distress; and (4) the emotional harm was severe.”

The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The distress must be reasonable and justified under the circumstances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress.

Whether a claim of severe emotional distress is found is a question for the court.

“In determining the reasonableness of the distress, a court must consider whether the defendant’s conduct was outrageous or egregious.” Here, the record shows that Jeremiah and Truman repeatedly called Ghodrati racist and derogatory names, posted inappropriate signs about Ghodrati on the employee restroom door as well as in the middle of the shop. This conduct was not, as a matter of law, sufficiently extreme or outrageous to support a claim for the intentional infliction of emotional distress. This Court has held that outrageous conduct sufficient to justify a claim of intentional infliction of emotional distress “does not include mere insults, indignities, threats, annoyances, petty oppressions, or other vicissitudes of daily living. Plaintiffs are expected to be hardened to a certain amount of rough language and to occasional acts that are definitely inconsiderate and unkind.” “Liability for intentional infliction of emotional distress has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Accordingly, although Jeremiah and Truman’s conduct towards Ghodrati was rude and tasteless, it is not the type of behavior for which the law grants a remedy.

Decided February 23, 2012.

Kumar, Prabhu, Patel & Banerjee, Angelina M. Kim, for appellant.

Andersen, Tate & Carr, Thomas T. Tate, Jason W. Blanchard, for appellees.

Additionally, the trial court did not err in finding that Ghodrati did not meet his burden of proving that he suffered severe emotional distress as a result of the appellee’s conduct. The trial court acknowledged that while Ghodrati suffered unpleasant symptoms of distress, such as anxiety, sleeplessness, embarrassment and loss of confidence, “it was not stress so severe that a reasonable person could not endure it.” The trial court based this ruling upon its finding that Ghodrati was able to withstand the stress the entire time he worked at VSC, that he did not seek counseling until long after leaving VSC and after he filed this lawsuit, and that Ghodrati has not produced any record of a counselor’s diagnosis. Emotional distress can take the form of “highly unpleasant mental reactions such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. It is only where it is extreme that liability arises.” As the evidence in this case clearly fails to meet this standard, the trial court did not err in granting summary judgment to appellees on this issue.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

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

       Ghodrati voluntarily dismissed his slander cause of action prior to the summary judgment hearing.

       (Footnote omitted.) Abdul-Malik v. AirTran Airways, 297 Ga. App. 852, 856 (1) (678 SE2d 555) (2009); Hendrix v. Phillips, 207 Ga. App. 394, 395 (1) (428 SE2d 91) (1993) (all four of these factors must be present for a plaintiff to recover).

       (Citation and punctuation omitted.) Sevcech v. Ingles Markets, 222 Ga. App. 221, 223-224 (3) (474 SE2d 4) (1996).

        Clark v. Prison Health Svcs., 257 Ga. App. 787, 793 (3) (572 SE2d 342) (2002).

       (Citation omitted.) Sevcech, supra at 224 (3).

       Ghodrati additionally complains about sexually inappropriate comments made by Jeremiah and Truman to a female co-worker. However, these comments cannot be considered for this analysis because “[¡Implicit in the requirement that the conduct be intentional is the requirement that it be directed towards the complainant. Where the conduct is directed towards others, not the complainant, he or she cannot establish a necessary element of that claim.” (Citation omitted.) Sevech, supra at 224 (4).

       (Citation omitted.) Wilcher v. Confederate Packaging, 287 Ga. App. 451, 454 (2) (651 SE2d 790) (2007).

        Lockhart v. Marine Mfg. Corp., 281 Ga. App. 145, 147 (635 SE2d 405) (2006).

       See Witcher, supra (no liability where plaintiff subjected to rough and discourteous language in the workplace); Hendrix, supra at 394-395 (no liability where plaintiff was subject to tasteless and rude social conduct); and Cooler v. Baker, 204 Ga. App. 787, 788 (1) (420 SE2d 649) (1992) (no liability for use of the word “wench” to a secretary by a co-worker).

       (Footnote omitted; emphasis in original.) Southland Propane v. McWhorter, 312 Ga. App. 812, 819 (3) (720 SE2d 270) (2011).