text:
    A15A0615.
    In the Interest of S. M., a child.
    (775 S.E.2d 782)
   PHIPPS, Presiding Judge.

Acting pro se, John Mulkey, the father of 17-year-old S. M., appeals from an order of the Juvenile Court of Bartow County dismissing his petition for termination of guardianship on the basis that he failed to comply with an order of the court. Mulkey also appeals the judgment entered on the legal guardian’s counterclaim for contempt, wherein the guardian alleged Mulkey wilfully failed to pay child support. For the following reasons, we affirm the judgment of the court to the extent that it ordered Mulkey to pay child support arrearage; we vacate the judgment to the extent that it dismissed Mulkey’s petition for termination of guardianship; and we remand the case to the trial court for further proceedings.

On September 13, 2013, Mulkey, through counsel, filed a “Petition to Vacate Permanent Guardianship Pursuant to OCGA § 15-11-30.1 [(a)] (2) (D).” Mulkey sought to be reunited with his child on the basis that the circumstances upon which he had consented to the appointment of a permanent legal guardian for his child no longer existed, and that he had complied with and completed the requirements of a court-ordered reunification case plan created by the Department of Family and Children Services. Mulkey attached as an exhibit to his petition a copy of the Order of Permanent Guardianship entered by the court on January 14, 2011. The juvenile court issued an order approving the filing of the petition, and directing the matter to be scheduled for a hearing.

S. M.’s legal guardian filed an answer and counterclaim for contempt. The guardian sought, pertinently, dismissal of Mulkey’s petition and that Mulkey “be held in wilful contempt for his failure to pay child support pursuant to the Order of Permanent Guardianship.” Thereafter, Mulkey filed an Amended Petition, requesting therein that the court modify the guardianship order to “provide for visitation between [him] and the child.” On December 5, 2013, the juvenile court issued a continuance order on the basis that Mulkey had recently filed the amended petition, and his attorney had requested an opportunity to depose S. M.’s therapist prior to moving forward with the case. The court specifically ordered therein: “[Mulkey’s attorney] shall notify the Court if this matter needs to be rescheduled or if this matter needs to be dismissed no later than March 1, 2014.”

On June 19, 2014, the juvenile court issued a Final Order. In issuing its dismissal, the court stated:

This Court entered a continuance order on December 5, 2013 to allow the Petitioner an opportunity to depose the child’s therapist, [therapist’s name]. The order further stated that if the Petitioner failed to reschedule this matter after said deposition no later than March 1,2014 this matter shall be dismissed. The Petitioner did not comply with the order of the Court and did not depose [the child’s therapist] nor request this matter be rescheduled in the time frame allowed by the Court. As such, the Petition to Vacate the Permanent Guardianship is hereby dismissed.

Concerning the guardian’s counterclaim for “wilful contempt” for failure to pay child support pursuant to the guardianship order, the court, in ordering Mulkey to pay arrearage at a specified weekly rate, found as follows:

The Court finds by stipulation that the issue of willfulness cannot be proven by sufficient evidence, as the underlying language of the court [guardianship] order was not clear enough to establish the responsibility to respective parties regarding the notification of the child being on Medicaid.

1. Mulkey challenges the juvenile court’s judgment on the guardian’s counterclaim ordering him to pay child support arrearage. He disputes the basis for the court’s judgment, that basis being: “The Court finds by stipulation that the... language of the court order was not clear enough to establish the responsibility to respective parties regarding the notification of the child being on Medicaid.”

The guardianship order pertinently provided the following:

IT IS FURTHER ORDERED that the father is in arrearage in the total amount of $2,350.00 for child support. He shall purge himself of this arrearage amount at such time that the child is eligible for Medicaid insurance. Once the child is covered by Medicaid insurance, then the insurance premiums that the father currently pays in the amount of $70.00 a week shall then be paid towards the child support arrearage [at] the rate of $70.00 per week. DFACS shall notify Mr. Mulkey once [S. M.] has been re-accepted under Medicaid.

Mulkey contends that the guardianship order was, in fact, “very clear” as to the entity responsible for notifying him that S. M. had been re-accepted under Medicaid; that “no one bothered to inform him” that he no longer needed to pay for medical insurance for S. M. because she had been re-accepted into a Medicaid program; and that consequently, he had “continued to pay medical benefits all the way till January 2014,” and “paid out over $5000 in insurance premiums that wasn’t used even though the Guardian and DFACS had a copy of the insurance cards.” Accordingly, Mulkey argues, “he shouldn’t have to pay [the child support arrearage].”

The Final Order was signed by Mulkey and by his then-attorney of record. Above the attorney’s signature line, the typewritten notation “Consented to by:” was crossed out, and the notation “Acknowledge Receipt By:” was handwritten above the crossed-out words. The appellate record does not contain any (written or oral) stipulation that the language of the guardianship order was not sufficiently clear to establish the responsibility of the respective parties regarding the notification of the child’s Medicaid status. However, “[w]here there is no transcript, an appellate court is bound to assume that the trial court’s findings are supported by sufficient competent evidence.”

Notwithstanding, Mulkey argues that he “never stipulated to anything,” and that when his attorney “came out of chambers with [the] [Final] order [the attorney] stated again we are being denied a hearing on the record and the Court would not listen to nothing he had to say.” Mulkey’s argument is unavailing. “[W]here the proof necessary for determination of the issues on appeal is omitted from the record, the appellate court must assume that the judgment below was correct and affirm.”

Where, as Mulkey asserts on appeal, a fact material to his position (i.e., whether he or his attorney stipulated that the language of the guardianship order was not sufficiently clear to establish the responsibility of respective parties regarding the notification of the child being on Medicaid) was misstated in the record on appeal, OCGA § 5-6-41 (f) provides a procedure “to make the record conform to the truth.” But Mulkey failed to utilize that procedure.

The burden is on him who asserts error to show it affirmatively by the record and this cannot be done by evidentiary assertions in enumerations and briefs. The brief cannot serve in the place of the record or the transcript for the purpose of demonstrating error or for supporting a claim of error.

Accordingly, we cannot consider the unsupported factual assertions Mulkey makes in his appellate brief, and we must presume that the trial court’s findings as to the parties’ stipulation was supported by the evidence. Therefore, the juvenile court’s judgment ordering Mulkey to pay the child support arrearage is affirmed.

2. Mulkey challenges the juvenile court’s dismissal of his petition to vacate the guardianship on several grounds.

(a) Mulkey contends that he was denied “his due process right to a hearing to present his case,” when, contrary to the findings the court made in the Final Order, the continuance order issued on December 5,2013 did not provide that “if the Petitioner failed to reschedule this matter after said deposition no later than March 1, 2014 this matter shall be dismissed.” We conclude that the juvenile court’s dismissal of Mulkey’s petition for termination of guardianship on the basis that he failed to comply with the court’s order was improper.

First, we agree with Mulkey that the juvenile court incorrectly summarized its continuance order, and that properly construed, the continuance order did not provide that the failure of Mulkey’s attorney to depose S. M.’s therapist and to reschedule the matter thereafter would result in dismissal of the termination petition. The pertinent requirement of the continuance order was that Mulkey’s attorney notify the court no later than March 1, 2014, if the matter needed to be rescheduled or dismissed. The continuance order did not require Mulkey to depose the therapist or to reschedule the matter; nor did it set forth that the occurrence of any specified event would result in dismissal of the petition.

Second, the court, in its Final Order, made no finding that Mulkey’s failure to comply with the continuance order was wilful, and “we cannot say that such a determination could be made from the record before us .” Mulkey asserts that the trial court did not hold any recorded hearings on the petition to vacate the guardianship or on the amended petition, and the appellate record does not reflect that any recorded hearing(s) were held on these matters.

The dismissal of a complaint for failure to comply with a court order is the most severe sanction available and one that is generally warranted where the plaintiff has engaged in contumacious conduct or has wilfully disregarded a court order. While a court enjoys broad discretion in determining whether dismissal is warranted, such discretion is not limitless. ... [Dismissal is reserved for the most flagrant cases —where the failure to comply with the court’s order is wilful, in bad faith, or in conscious disregard of an order.

This court has generally held that before imposing the ultimate sanction of dismissal, “the court must first make a determination, after notice and an opportunity for hearing, that the failure to comply with the order was wilful. But a hearing has not been required where the wilfulness of the recalcitrant party is obvious and undeniable from the record.”

Here, the juvenile court dismissed Mulkey’s petition, apparently without holding a recorded hearing in court, based on Mulkey’s purported failure to comply with the continuance order in that he “failed to reschedule this matter after [deposing the child’s therapist] no later than March 1, 2014.” But as previously addressed, the continuance order did not require Mulkey to either depose the therapist or to reschedule the matter within any time frame, such that the failure to do either amounted to wilful or conscious disregard of the continuance order. Notably, Mulkey states in his appellate brief that his attorney’s office had contacted S. M.’s therapist in February 2014 and March 2014 to attempt to schedule a deposition, but that after the therapist “stated she had no helpful knowledge as to what was going on with [S. M.] because she hadn’t seen her in almost two years [,] [Mulkey] decided it would be a waste of money to depose her.” If true, this would negate any bad faith by Mulkey.

Because the record does not establish without dispute that [Mulkey’s] failure to comply with the court order was wilful, we reverse the order of the [juvenile] court [dismissing the complaint] and remand for a hearing on the issue of wilfulness. This case is thus remanded for a hearing and further proceedings consistent with this opinion.*

The hearing shall be recorded and shall be conducted in court, not in the judge’s chambers. On remand, the court is also ordered to address the merits of Mulkey’s amended petition, wherein he sought visitation with S. M.

Decided July 16, 2015.

John L. Mulkey, pro se.

A. Christina Stahl, for appellee.

(b) To the extent Mulkey challenges judgments the juvenile court entered in February 2010 and in January 2011, we have no jurisdiction to consider his claims. Those judgments were entered in cases separate from the underlying case on appeal, Mulkey’s notice of appeal did not include an appeal from those orders, and Mulkey’s opportunity to appeal those orders has expired. Accordingly, there is nothing for our review in that regard.

(c) Mulkey’s challenge to the constitutionality of former OCGA § 15-11-30.1 is unavailing, as Mulkey did not raise that challenge below and the trial court made no ruling as to that issue.

Judgment affirmed in part and vacated in part, and case remanded.

Doyle, C. J., and Boggs, J., concur.

       S. M. was born June 4, 1998.

       See OCGA § 15-11-30.1 (a) (2) (A), (D) (2013) (provided that “the juvenile court shall be vested with jurisdiction to appoint a permanent guardian for a child whose custody is a subject of controversy before the court as a result of an adjudication that the child is deprived,” and that “[t]he guardianship shall be modified, vacated, or revoked based upon a finding, by clear and convincing evidence, that there has been a material change in the circumstances of the child or the guardian and that such modification, vacation, or revocation of the guardianship order and the appointment of a new guardian is in the best interest of the child.”). See In the Interest of C. A J., 331 Ga. App. 788, 790, n. 2 (771 SE2d 457) (2015).

        Freeman v. State, 215 Ga. App. 341, 341-342 (450 SE2d 346) (1994).

        Transport Indem. Co. v. Hartford Ins. Co., 198 Ga. App. 265, 266 (401 SE2d 294) (1990).

       OCGA § 5-6-41 (f). See generally Hixson v. Hickson, 236 Ga. App. 894, 895 (1) (512 SE2d 648) (1999).

        Holzmeister v. State, 156 Ga. App. 94 (1) (274 SE2d 109) (1980) (citations and punctuation omitted).

       See generally Laviano v. Travelers Ins. Co., 276 Ga. App. 611, 612-613 (624 SE2d 189) (2005); Hickson, supra; Jahncke Service v. Dept. of Transp., 134 Ga. App. 106, 107 (1) (213 SE2d 150) (1975); see also Stephens v. Alan V. Mock Construction Co., 302 Ga. App. 280, 284 (1) (b) (690 SE2d 225) (2010) (holding hearing in chambers was not, per se, a violation of due process).

        Rouse v. Arrington, 283 Ga. App. 204, 207 (2) (641 SE2d 214) (2007).

        Wilson v. Home Depot USA, 288 Ga. App. 582, 585-586 (1) (654 SE2d 408) (2007) (punctuation and footnotes omitted); see Gropper v. STO Corp., 276 Ga. App. 272, 275 (1) (623 SE2d 175) (2005) (“Under OCGA § 9-11-37 (b) (2) (C), one sanction available to a trial court is that of dismissal of an action for failure to comply with a discovery order. Before exercising its discretion to impose this harsh sanction, a trial court must find that the offending party acted wilfully. The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires ... a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance. A conscious or intentional failure to act is in fact wilful. And a party who intentionally fails to comply fully with a court order may be subject to the harshest of sanctions.”) (citations and punctuation omitted).

        Rouse, supra at 206 (2) (citation omitted).

       Id. at 207 (citation and punctuation omitted).

       In the order on appeal, although captioned “Final Order,” the court ruled that “the Petition to Vacate the Permanent Guardianship is hereby dismissed.” The court did not adjudicate therein the amended petition wherein Mulkey sought visitation with S. M.

       See OCGA § 5-6-38 (a) (“Anotice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of [.]”).

       See In the Interest of J. R. R., 281 Ga. 662, 662-663 (641 SE2d 526) (2007) (“It is well established that [the Supreme Court of Georgia] does not ever pass upon the constitutionality of an Act of the General Assembly unless it clearly appears in the record that the point was directly and properly made in the court below and distinctly passed on by the trial judge.”) (citations omitted); Rooney v. State, 287 Ga. 1, 2 (1) (690 SE2d 804) (2010) (the Supreme Court of Georgia has “exclusive appellate jurisdiction pursuant to Art. VI, Sec. VI, Par. II (1) of the Georgia Constitution of 1983 over cases in which the constitutionality of a law has been drawn into question”) (citation omitted).


source: Caselaw Access Project

author: PHIPPS, Presiding Judge. BOGGS, Judge,

license: Public Domain

text:
    A15A0751.
    LONDON v. THE STATE.
    (775 S.E.2d 787)
   PHIPPS, Presiding Judge.

Bartholomew London was convicted of child molestation and two counts of aggravated child molestation involving his then-15-year-old stepdaughter, C. S. He appeals from the denial of his motion for new trial, contending, among other things, that the trial court erred when it denied his motion to suppress a recording of a telephone conversation between him and the child. Because the state failed, pursuant to OCGA § 16-11-66 (b), to obtain consent for the recording by order of a judge of a superior court upon written application, we reverse.

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

On March 16, 2010, an indictment was returned filed against London. Counts 1 and 2 of the indictment alleged that London committed the crime of aggravated child molestation “by placing his mouth on [C. S.’s] vagina”; Count 3 alleged that London committed the crime of child molestation “by placing his finger into [C. S.’s] vagina[.]” The offenses were alleged to have been committed “on or between” August 1, 2009 and October 1, 2009.

At trial, C. S. testified that London was married to her mother and that they all lived together on the dates at issue. C. S. testified that sometime in late August 2009, London went into her bedroom and put his mouth on her “privates.” London also inserted his finger in C. S.’s “private part.” C. S. told London that “it hurt,” and London stopped. C. S. testified that on another occasion in early September 2009, London entered her bedroom and put his mouth on her “private.” Around October 1, 2009, C. S. disclosed the incidents to her mother, who took C. S. to the police station the following day.

A detective interviewed C. S. and videotaped the interview. C. S. testified that the detective asked her to call London “[t]o get him to admit what he did,” but C. S. could not reach London at that time. C. S. went back to the police station two days later; her mother was with her initially, but she had to leave and was not present when C. S. called London from the police station that day. The detective recalled specifically that police had “decided for C. S. to come back in and [C. S.] agreed to . . . come back in . . . October the 4th, and [C. S.] attempted to make another call to [London].” This time, London answered the phone; police conducted what the detective referred to as a “reverse phone call,” recorded the conversation with a video device, and reduced the recording to a DVD format.

The court allowed the state to introduce into evidence the DVD, which was played for the jury. The court also allowed the state to introduce a transcript of the conversation that had been recorded and preserved on the DVD. C. S. testified that the transcript was made as she watched the video and that the transcript was true and accurate to the best of her knowledge. Therein, at one point C. S. informed London that she had an impending doctor’s appointment, and she wanted to ask London whether he thought the doctor would “find anything.” Particularly incriminating to London was the following excerpt.

[C. S.]: I was just thinking with the fingering and stuff like that they —
LONDON: No.
[C. S.]: — may find something.
LONDON: No.
[C. S.]: Or in the —
LONDON: No. Whenever I did stick my finger inside you, it hurt. You understand me?
[C. S.]: Or with the saliva or whatever.
LONDON: There ain’t gonna be nothing, [C. S.]. You wash. Excuse me. You wash every day. Every day. So, it won’t wash with soap every day, and your finger, finger went inside of your coochie, too, when you wash sometimes. So, don’t worry about none of that. You good. Excuse me. I miss you. I know it, I miss you.

Throughout the conversation, London attempted to assure C. S. that a medical examination would not reveal evidence of “fingering” or of his saliva.

London took the stand, testifying in his own defense. He denied having committed the charged offenses. He also disputed the accuracy of the state’s transcript of the reverse phone call recording.

“OCGA § 16-11-62 (4) prohibits any person from intentionally and secretly intercepting a telephone call by use of any device, instrument or apparatus.”* * However, a party to the conversation is not prohibited from recording it. “OCGA § 16-11-66 (a) provides [another] exception to OCGA § 16-11-62 that allows such an interception where one of the parties to the communication has given prior consent.”* ** “OCGA § 16-11-66 (b) requires that consent for the recording or divulging of the conversations of a child under the age of 18 years conducted by telephone or electronic communication shall be given only by order of a judge of a superior court upon written application.” More specifically,

OCGA § 16-11-66 (b) provides that the telephone conversations of a child under 18 years of age may be recorded and divulged if, upon written application by a private citizen, law enforcement agency, or prosecutor’s office, a judge of a superior court and the child consent to such taping.

OCGA § 16-11-66 (b) pertinently provides as follows:

After obtaining the consent required by this subsection, the telephonic conversations or electronic communications to which a child under the age of 18 years is a party may be recorded and divulged, and such recording and dissemination may be done by a private citizen, law enforcement agency, or prosecutor’s office. Nothing in this subsection shall be construed to require that the recording device be activated by the child. Consent for the recording or divulging of the conversations of a child under the age of 18 years conducted by telephone or electronic communication shall be given only by order of a judge of a superior court upon written application, as provided in subsection (c) of this Code section, or by a parent or guardian of said child as provided in subsection (d) of this Code section. . . .

London contends that there was no evidence that C. S. had consented to the conversation being recorded; that the recording clearly had been obtained at the behest of law enforcement and not C. S.; and that because the state had failed to follow the procedure outlined in OCGA § 16-11-66 (b) (which required police to obtain the consent for the recording by order of a judge of a superior court upon written application), the trial court erred in denying his motion to suppress the recording. Analogizing this case to Malone v. State, upon which the trial court in the instant case based its ruling denying London’s motion for new trial, the state replies that because the telephone conversation was recorded with C. S.’s full knowledge and participation, there was no violation of OCGA § 16-11-66 (b).

But Malone is distinguishable. In that case, several persons were involved in the recording of a minor’s phone conversation — the alleged child molestation victim (a minor), her mother, and her mother’s friend. Thereafter, criminal charges were brought against the defendant, who moved to suppress the audiotape recording. Citing Fetty v. State, this court in Malone affirmed the trial court’s denial of the motion, and held that the recording was admissible because the child “was fully aware that the conversation was being taped[ and] . . . she voluntarily participated in the recording of her conversation; in fact, she encouraged it.”* This court in Malone clearly did not construe the circumstances of that case — namely, that the idea to record the conversation had originated with the child, the child had consented to the taping, the mother and a friend had participated in the recording, the child knew that her telephone conversation would be recorded and voluntarily participated in its recording, and the recording was conducted in a home setting — as amounting to “a third party’s interception” of the telephone conversation, which type of interception the Supreme Court of Georgia in Fetty held was prohibited by OCGA § 16-11-66. And contrary to the state’s assertion, in Malone, this court stated that “their conversation was recorded,” without stating that the recording had been done by any particular individual — the child, her mother, or her mother’s friend. Legg v. State, upon which the trial court in the instant case relied, is also inapposite, as that case was decided in 1993, before the legislature had amended OCGA § 16-11-66 to include subsections (b) and (c), requiring court approval for recording the private conversations of a minor.

In this case, unlike in Malone, there was undeniably third-party interception of the conversation by law enforcement. The idea to record the conversation originated with the police, C. S. went to the police station twice at the behest of the police to make the reverse phone call, and police recorded the conversation on their equipment. Moreover, there is no evidence that police had informed C. S. of their intent to record the conversation, let alone evidence that they had obtained C. S.’s consent to record it. In either event, police would still have been required to obtain consent for the recording by a court order pursuant to OCGA § 16-11-66 (b). Notably, the judge would have been authorized to issue such an order only upon finding probable cause that a crime had been committed, determining that the child’s participation in the recording would not be harmful to the child, and finding that the child understood that the conversation was to be recorded and that the child agreed to participate.

The DVD recording contained incriminating statements by London, and its admission into evidence was not harmless. London took the stand and denied having committed the indicted offenses, and there was no evidence that he had given police any confession or other incriminating statement(s). Nor was there any physical evidence connecting London to the crimes. A sample of carpet from C. S.’s bedroom was tested for the presence of seminal fluid and the results were negative; a sexual assault examination that was performed on C. S. on October 6, 2009, revealed no evidence of injury or of penetration; and the nurse who had conducted the examination made no “assault-related findings.” Moreover, during deliberations, the jury asked to view the DVD of the telephone conversation with the transcript. Therefore, we cannot conclude the admission of the DVD was harmless beyond a reasonable doubt.

Because the state failed, pursuant to OCGA § 16-11-66 (b), to obtain a court order giving consent for the recording, and there is a reasonable probability that the improperly admitted evidence contributed to the jury’s verdict, we reverse. We note, however, that because the evidence was sufficient to sustain his convictions, London may be retried.

Judgment reversed.

Doyle, C. J., concurs. Boggs, J., concurs specially.

BOGGS, Judge,

concurring specially.

I agree with the majority that the State failed to obtain consent for the recording and for the divulging of the recorded conversation “by order of a judge of a superior court upon written application” as required by OCGA § 16-11-66 (b). But I write separately to note that the interception of the conversation by the police may have been permissible pursuant to OCGA § 16-11-66 (a). This subsection provides: “Nothing in Code Section 16-11-62 shall prohibit a person from intercepting a wire, oral, or electronic communication where ... one of the parties to the communication has given prior consent to such interception.” The record contains some evidence that C. S. and her mother did, in fact, consent to police listening in on C. S.’s conversation with London, which took place while her phone was placed in speaker phone mode. Had the officers desired to provide testimony regarding what they overheard, they would not have been prohibited from doing so by OCGA § 16-11-66 (b). The court order requirement applies only to the recording and the divulging of the recording itself (or “recording and dissemination”) as is made evident by OCGA § 16-11-66 (c) (judge must make findings regarding the child’s understanding that the conversation is to be recorded and a true and correct copy of the recording shall be returned to the superior court judge to keep under seal). Here, the State opted to play the DVD recording of the call and provide the jury with a transcribed version of the call, rather than elicit the investigator’s testimony as to what he overheard London say during the call. The investigator explained only that the DVD truly and accurately depicted the conversation.

Decided July 16, 2015.

Bentley C. Adams III, for appellant.

Julia F. Slater, District Attorney, Robert B. Bicker staff II, Michael E. Craig, Assistant District Attorneys, for appellee.

While I agree that a court order was required for the playing of the recording, I believe it is important to note that a court order would not be required had the State chosen instead to elicit testimony about what the investigator overheard during the interception. Because it chose to play the recording, we are constrained to reverse the conviction.

        Vansant u. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994) (citations omitted).

       In arguing against the admissibility of the DVD of the “reverse phone call,” London’s counsel explained, without objection, the process by which C. S.’s telephone conversation with London had been recorded: “[C. S.] was at the police department in the presence of [the detective]. Now, the recording that I’ve been served notice with, is not a recording from her phone, but it’s actually a video recording in which [the detective] was recording the phone call made by [C. S.] to Mr. London.” The prosecutor did not dispute defense counsel’s statements, and pertinently responded that “[C. S.] transmitted [the conversation] over her speakerphone device and it was subsequently recorded,” and that C. S. had consented to the recording, which consent OCGA § 16-11-66 (a) permitted as an exception to obtaining a warrant. Again, without objection, defense counsel later reiterated that “the conversation took place ... on [C. S.’s] cell phone, which was put on speaker phone and then recorded by a video device by the police department.”

        Smith v. State, 254 Ga. App. 107, 108 (2) (a) (561 SE2d 232) (2002).

       See Fetty v. State, 268 Ga. 365, 367 (3) (489 SE2d 813) (1997); Malone v. State, 246 Ga. App. 882, 883 (541 SE2d 431) (2000); Bishop v. State, 241 Ga. App. 517, 519 (1) (526 SE2d 917) (1999) (acknowledging that “OCGA § 16-11-66 provides two specific exceptions [to OCGA § Í6-11-62] which allow such interception,” the first exception being that a person who is a party to the communication may intercept it); OCGA § 16-11-66 (a).

        Smith, supra; see Hill v. State, 306 Ga. App. 663, 665 (1) (703 SE2d 98) (2010); Bishop, supra.

        Hill, supra. The exception provided in OCGA § 16-11-66 (b) authorizing a parent or guardian to give consent does not apply here, where the recording did not take place in the family home. See OCGA § 16-11-66 (d).

        Bishop, supra (emphasis omitted); see Gavin v. State, 292 Ga. App. 402, 405 (664 SE2d 797) (2008) (“the legislature outlined in OCGA § 16-11-66 (b) circumstances under which a child’s telephone conversation or electronic communications may he recorded”).

       Supra.

       Id. at 883.

       Supra.

        Malone, supra at 884.

       Id.; Fetty, supra at 367 (3).

        Malone, supra at 883.

       Id.

       207 Ga. App. 399 (428 SE2d 87) (1993).

       See Bishop, supra at 523 (1) (iii), n. 4.

       See OCGA § 16-11-66 (c).

       See Dailey v. State, 313 Ga. App. 809, 816 (1) (723 SE2d 43) (2012) (“to be successful, a claim of error requires a showing of both harm and error”) (footnote omitted).

       See generally Chapman v. California, 386 U. S. 18,24 (III), 25 (IV) (87 SCt 824, 17 LE2d 705) (1967) (error of even constitutional magnitude may be harmless if, considering the entire record on appeal, the reviewing court finds beyond a reasonable doubt that the error did not contribute to the verdict). And see Vaughn v. State, 248 Ga. 127, 131-132 (2) (281 SE2d 594) (1981) (holding that improper admission of defendant’s confession was not harmless and, accordingly, reversing); Crowder v. State, 237 Ga. 141, 155 (227 SE2d 230) (1976); Thompson v. State, 313 Ga. App. 844, 848-849 (1) (723 SE2d 85) (2012). Compare Dailey, supra (“even assuming that the trial court erred by admitting the challenged police statements..., the error was harmless in light of the fact that the cited police statements were cumulative of other unchallenged confessions by [the defendant]”); Linto v. State, 292 Ga. App. 482, 483 (1) (664 SE2d 856) (2008) (“even if the admission of [defendant’s pre-Miranda\ statement could somehow he interpreted as error, such admission was harmless because [defendant’s] statement ... was merely cumulative of the admissible statement he provided police the day before”) (citations omitted); Baez v. State, 297 Ga. App. 893, 895-896 (1) (678 SE2d 583) (2009) (“[a]ssuming arguendo that [the defendant’s] statement to [a police officer] should have been excluded because [the defendant] was not re-Mirandized, we find that the admission of the statement was harmless [because] ... [the defendant’s] statement to [that officer] was merely cumulative of his oral statement to [another police officer]”).

       See Hutchinson v. State, 287 Ga. App. 415, 417-418 (651 SE2d 523) (2007) (physical evidence of the molestation was not required to support convictions for child molestation, aggravated sexual battery, and aggravated child molestation); Fiek v. State, 266 Ga. App. 523, 527 (4) (597 SE2d 585) (2004) (“The victims’ testimony, standing alone, was sufficient to authorize [the defendant’s] convictions on the eighteen counts of child molestation and three counts of aggravated child molestation beyond a reasonable doubt.”) (citations omitted); Spradlin v. State, 262 Ga. App. 897, 898 (1) (587 SE2d 155) (2003).

       See Thompson, supra at 849 (permitting retrial when sufficient evidence existed, despite reversing conviction on other grounds).


author: PHIPPS, Presiding Judge.

text:
    A15A0765.
    JERNIGAN v. THE STATE.
    (775 S.E.2d 791)
   PHIPPS, Presiding Judge.

Demetrius Jernigan was found guilty of kidnapping, hijacking a motor vehicle, armed robbery (two counts), aggravated assault with a deadly weapon, and aggravated assault with intent to rape. He appeals from the convictions, contending that the evidence was insufficient to support the verdict for aggravated assault with intent to rape, and that the court erred by sentencing him on convictions that should have merged. For the reasons that follow, we hold that the evidence was sufficient and that the two armed robbery convictions did not merge. However, the court erred in not merging the aggravated assault (with a deadly weapon) conviction into one of the armed robbery convictions. Thus, we affirm in part, vacate in part, and remand for resentencing.

1. Jernigan contends that the evidence was insufficient to prove aggravated assault with intent to rape. 3*We disagree.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and [the appellant] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

So viewed, the evidence showed the following. On September 8, 2011, C. B. went alone to a Citgo gas station in Clayton County and was preparing to pump gasoline into her vehicle’s gas tank when a man approached her. He lifted his shirt, displayed a gun, and told C. B., “[D]on’t scream, don’t make a scene, and I won’t hurt you.” He told C. B. to finish “pump[ing] the gas,” then demanded her keys and ordered her to get in the passenger seat of her vehicle. C. B. complied, and the man drove the vehicle to a BP gas station. The man put the gun in his waistband and ordered C. B. to go inside the store with him to withdraw money from an automated teller machine (ATM) using her ATM card. With the gun still tucked in his pants, he again warned C. B. not to “make a scene.” C. B. complied, and when the ATM dispensed money, the man grabbed it. The man then drove C. B. in her vehicle to another gas station (this time in DeKalb County); he attempted to add more gasoline to the vehicle’s tank using her ATM card, but the transaction was declined.

With C. B. still in the vehicle, the man drove to a school in DeKalb County, where he forced C. B. to perform oral sex on him. He then forced her to have sexual intercourse with him.

The man then drove C. B. to another gas station, where he unsuccessfully attempted to use her ATM card to withdraw money from an ATM. He next drove C. B. to another street and forced her to get out of the vehicle. A passerby came to C. B.’s aid and phoned police. C. B. gave police a description of her assailant, and she later identified Jernigan in a photographic array and at trial as her assailant.

Jernigan asserts that the evidence was insufficient to support his conviction for aggravated assault with intent to rape because “there was no evidence that when he came in contact with [the victim] in Clayton County and brandished his firearm that he had any intent to commit rape.”

Whether the defendant entertained an intent to commit a felony [rape] ... is a matter for the jury to say, under the facts and circumstances proved. As a general rule the state must, of necessity, rely on circumstantial evidence in proving intent.

“[0]n review, this court will not disturb the factual determination [of criminal intention] unless it is contrary to the evidence and clearly erroneous.”

Construed in the light most favorable to support the verdict, the evidence included testimony that Jernigan had approached C. B. when she was alone and, brandishing a gun, forced her to go with him in a vehicle; he had the gun throughout the ordeal, showing it to C. B. and threatening her; and he had a condom, which he wore while forcing sexual intercourse on her. Thus, “[t]here was evidence, although circumstantial insofar as intent is concerned, sufficient to establish that the defendant assaulted the victim with intent to commit rape; a rational trier of fact was authorized to find the defendant guilty of the crime charged beyond a reasonable doubt.”

2. Jernigan contends that the trial court erred by sentencing him on two armed robbery counts when the taking of the motor vehicle at the Citgo gas station (Count 4) and the taking of the currency from the ATM at the BP gas station (Count 5) were parts of a single, continuous transaction. We disagree.

“The doctrine of merger precludes the imposition of multiple punishments when the same conduct establishes the commission of more than one crime.” “Whether offenses merge is a legal question, which we review de novo.”

“Where a single victim is robbed of multiple items in a single transaction, there is only one robbery.” “A defendant who takes multiple items from a victim in one transaction cannot be convicted of multiple robberies.. . . The question is whether the thefts involve a single transaction or sequential crimes.”

In this case, the theft of the vehicle and the theft of the currency were sequential crimes. Jernigan had taken C. B.’s vehicle at gunpoint at the first gas station, thus committing the armed robbery alleged in Count 4.* He had next driven to a second gas station, where, with a gun in his waistband, he had ordered C. B. to exit the vehicle, enter the store with him, and withdraw money from an ATM, which money he then took, thereby committing the armed robbery alleged in Count 5. The taking of the money from the ATM was not part of Jernigan’s initial act of taking the vehicle. The two offenses were committed at different times and in different locations, and thus did not merge.

Decided July 16, 2015.

S. Cindy Wang, Long D. Vo, for appellant.

3. Jernigan contends that his conviction on Count 6 (aggravated assault on C. B., by assaulting her with a deadly weapon) should have merged into the conviction on Count 4 (armed robbery, by taking a motor vehicle from C. B. by use of a firearm), Count 5 (armed robbery, by taking currency from C. B. by use of a firearm), or Count 7 (aggravated assault, by assaulting C. B. with the intent to rape). The state concedes that Count 6 should have merged with Count 5.

To determine whether the aggravated assault (with a deadly weapon) was a lesser included offense of the armed robbery counts or the aggravated assault (with intent to rape) count, we apply the “required evidence” test set forth in Drinkard v. Walker. Under that test, we examine “whether each offense requires proof of a fact which the other does not.” “Because aggravated assault does not require proof of any element that armed robbery does not, convictions for both offenses will merge — but only if the crimes are part of the same act or transaction.” Jernigan’s convictions for aggravated assault (with a deadly weapon) and armed robbery (taking currency by use of a firearm) arose from the same act or transaction. Therefore, the conviction and sentence for aggravated assault (with a deadly weapon) must be vacated and the case remanded to the trial court for resentencing.

Judgment affirmed in part and vacated in part, and case remanded.

Doyle, C. J., and Boggs, J., concur.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

       The indictment pertinently charged Jernigan with the following offenses: Count 1 - kidnapping of C. B.; Count 3 - hijacking a motor vehicle, by obtaining a motor vehicle from C. B. by force or violence while in possession of a firearm; Count 4 - armed robbery, by taking a motor vehicle from C. B. by use of an article having the appearance of a firearm; Count 5 - armed robbery, by taking currency from C. B. by use of an article having the appearance of a firearm; Count 6 - aggravated assault, by assaulting C. B. with a deadly weapon (handgun); Count 7 - aggravated assault, by making an assault upon C. B. with the intent to rape. The indictment alleged that each offense was committed in Clayton County.

       Former OCGA § 16-5-21 (2011) pertinently provided: “(a) A person commits the offense of aggravated assault when he or she assaults another: (1) With intent to . . . rape.” OCGA § 16-5-20 (a) pertinently provides that a person commits the offense of simple assault when he either: (1) attempts to commit a violent injury to the person of another or (2) commits an act which places another in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-6-1 (a) pertinently provides that “[a] person commits the offense of rape when he has carnal knowledge of: (l) a female forcibly and against her will. . . . Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ[.]”

        Jackson v. State, 252 Ga. App. 268 (1) (555 SE2d 908) (2001) (citations, punctuation and footnotes omitted).

        Kinney v. State, 155 Ga. App. 95 (1) (270 SE2d 209) (1980) (citation and punctuation omitted); see Mobley v. State, 279 Ga. App. 476, 478 (1) (631 SE2d 491) (2006); Butler v. State, 194 Ga. App. 895, 897 (2) (392 SE2d 324) (1990); see generally Goodall v. State, 277 Ga. App. 600, 602-603 (1) (a) (627 SE2d 183) (2006).

        Hardy v. State, 159 Ga. App. 854, 860 (285 SE2d 547) (1981) (citation and punctuation omitted).

       See Butler, supra (citation and punctuation omitted).

        Louisyr v. State, 307 Ga. App. 724, 730 (2) (706 SE2d 114) (2011) (citations and punctuation omitted).

        McGlasker v. State, 321 Ga. App. 614, 616 (2) (741 SE2d 303) (2013) (citation omitted).

        Davis v. State, 281 Ga. 871,874 (4) (644 SE2d 113) (2007); Wells v. State, 294 Ga. App. 277, 280 (1) (b) (668 SE2d 881) (2008). Note that the “required evidence” test set forth in Drinkard v. Walker, infra, applies where the same act or transaction constitutes a violation of two distinct statutory provisions. Wells, supra. The required evidence test does not apply where (as here) the question presented is whether a course of conduct can result in multiple violations of the same statute. State v. Marlowe, 277 Ga. 383, 384 (1) (589 SE2d 69) (2003).

        Holloway v. State, 269 Ga. App. 500, 504 (3) (604 SE2d 844) (2004) (footnotes omitted) (stating that the analysis regarding whether one robbery count is included in another robbery count differs from the analysis employed in the context of other types of crimes; holding that the armed robbery and attempted armed robbery counts merged because only one robbery could be charged when one victim was robbed of more than one item in a single transaction); see Lewis v. State, 261 Ga. App. 273, 275 (1) (582 SE2d 222) (2003) (noting the “unique” merger analysis in robbery cases, and holding that the taking of property in a single transaction from a single victim - money, phone, and wallet - constituted a single robbery).

       See OCGA § 16-8-41 (a).

       See Andrews v. State, 328 Ga. App. 344, 349 (2) (c) (764 SE2d 553) (2014) (physical precedent only) (no merger of robbery counts where defendant had taken the victim’s cash and check card, and then assaulted and raped her, before taking her car keys; the robbery offenses were based on the defendant having committed two distinct acts of taking at two different times); Denson v. State, 212 Ga. App. 883, 884 (3) (443 SE2d 300) (1994) (two robbery convictions did not merge because, although the robberies were committed in close temporal proximity, the offenses were committed sequentially; the defendant had committed the initial theft by taking the victim’s gun, and the second theft by then using that gun to strike the victim and take her purse). Compare Tesfaye v. State, 275 Ga. 439, 442 (4) (569 SE2d 849) (2002) (two armed robberies merged where defendants had taken cash from the victim and vehicle keys from the victim at two sites under the same roof); Randolph v. State, 246 Ga. App. 141, 144 (l) (538 SE2d 139) (2000) (two armed robbery counts merged where defendant had robbed victim of store’s money at one end of a store, and then robbed him of his wallet at the other end of the store); Creecy v. State, 235 Ga. 542, 544 (5) (221 SE2d 17) (1975) (only one armed robbery where rohber had taken, in a single transaction, a wallet from a store employee and money from the store’s cash drawer).

       281 Ga. 211 (636 SE2d 530) (2006).

        Long v. State, 287 Ga. 886, 888 (2) (700 SE2d 399) (2010) (citations and punctuation omitted).

        Thomas v. State, 289 Ga. 877, 880 (3) (717 SE2d 187) (2011) (punctuation omitted), citing Long, supra, and Drinkard, supra.

       See Thomas, supra.

       See id.; Long, supra.


author: Boggs, Judge.

text:
    A15A0279.
    THE STATE v. ZILKE.
    (773 S.E.2d 489)
   Boggs, Judge.

The State appeals from the trial court’s order granting Bajrodin Zilke’s motion to suppress. Because the trial court erred in finding that Zilke was arrested without authority, we reverse.

“[Wjhere the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Citation, punctuation and footnote omitted.) Sullivan v. State, 308 Ga. App. 114 (706 SE2d 618) (2011). The relevant facts are not in dispute here. The evidence shows that Decari Mason is a POST-certified police officer employed at Kennesaw State University (“KSU”). At approximately 1:42 a.m. on May 5, 2013, Mason was returning to KSU after delivering an arrestee to the Cobb County Adult Detention Center. It was dark and raining heavily at'the time.

While traveling down Powder Springs Road in Cobb County, Mason observed Zilke driving without activated headlights or taillights and “severely failing to maintain lane.” Mason initiated a traffic stop and approached Zilke, who smelled of alcohol, had bloodshot, watery eyes, was unsteady on his feet, and admitted to consuming two beers. At Mason’s request, Zilke blew into an alco-sensor, which registered positive for alcohol. Concluding that Zilke was under the influence of alcohol to the extent he was less safe to drive, Mason arrested him. Zilke submitted to a state-administered chemical breath test on the Intoxilyzer 5000 at 3:16 a.m. which revealed a blood alcohol level of 0.08.

Zilke was charged with two counts of driving under the influence, failing to maintain lane, and operating a vehicle without headlights. He subsequently moved to suppress evidence of the breath test, arguing that Mason lacked jurisdiction to arrest him because, without dispute, the traffic stop did not occur on or near KSU property. The trial court granted the motion, and this appeal followed.

On appeal, the State argues that Mason was authorized to arrest Zilke based on the traffic offenses committed in his presence. We agree.

Generally, a police officer has the power to arrest “only in the territory of the governmental unit by which [the officer] was appointed.” (Punctuation omitted.) Sullivan, supra, 308 Ga. App. at 115-116 (1). An exception arises, however, when the officer witnesses a moving traffic violation. Id. Under OCGA § 17-4-23 (a), “[a] law enforcement officer may arrest a person accused of violating any law or ordinance governing the operation ... of motor vehicles ... by the issuance of a citation, provided that the offense is committed in his presence.” As we have explained in cases not involving campus police officers, this exception authorizes an arrest “regardless of territorial limitations.” (Punctuation omitted.) State v. Gehris, 242 Ga. App. 384, 386 (528 SE2d 300) (2000). See also State v. Heredia, 252 Ga. App. 89, 90 (1) (555 SE2d 91) (2001) (Cobb County police officer authorized to arrest defendant for DUI and failure to maintain lane within Kennesaw city limits).

Likewise, we have determined that a POST-certified campus police officer has authority to arrest, outside of the territorial limits for campus officers, for traffic violations committed in his presence on campus. Sullivan, supra, 308 Ga. App. at 115-116 (1). In so holding, we stated that POST-certified campus police officers fall within the ambit of OCGA § 17-4-23. Id.

Here, we must determine for the first time whether OCGA § 17-4-23 also authorizes a POST-certified campus police officer to arrest for a traffic offense committed in his presence beyond the territorial limits prescribed for campus police officers. In its suppression ruling, the trial court concluded that OCGA § 20-3-72 precludes a POST-certified campus police officer from making an arrest for offenses committed more than 500 yards from campus. That Code section provides:

The campus policemen and other security personnel of the university system who are regular employees of the system shall have the power to make arrests for offenses committed upon any property under the jurisdiction of the board of regents and for offenses committed upon any public or private property within 500 yards of any property under the jurisdiction of the board.

Abasic rule of statutory construction requires that “statutes relating to the same subject matter [be] construed together and harmonized wherever possible. [Cit.]” Gibson v. Casto, 271 Ga. 667, 668 (523 SE2d 564) (1999). Based upon this principle, we conclude that POST-certified campus police officers fall within the scope of OCGA § 17-4-23 and may arrest for moving traffic offenses committed in their presence more than 500 yards from campus. See Sullivan, supra, 308 Ga. App. at 116; State v. Durr, 274 Ga. App. 438, 442 (2) (618 SE2d 117) (2005) (physical precedent only). Accordingly, the trial court erred in granting Zilke’s motion to suppress.

Decided July 8, 2015 —

Reconsideration denied July 21, 2015

Barry E. Morgan, Solicitor-General, MimiA. Scaljon, Assistant Solicitor-General, for appellant.

Bimal Chopra, Jr., for appellee.

Judgment reversed.

Doyle, C. J., and Phipps, P. J., concur in judgment only.

       Our decision in Hill v. State, 193 Ga. App. 280 (387 SE2d 582) (1989), overruled in part by State v. Harder, 198 Ga. App. 170 (401 SE2d 57) (1990), does not require a different result. In Hill, we addressed only whether campus police officers have authority to obtain and execute search warrants more than 500 yards off campus. In Harder, we overruled the portion of Hill concluding that campus police officers lacked the authority to obtain an extra-territorial search warrant. We also noted that “campus police officers are essentially no different from county and municipal police officers whose authority to make an arrest may otherwise be subject to similar territorial restrictions.” (Emphasis omitted.) 198 Ga. App. at 171 (1).


author: Ray, Judge.

text:
    A15A0582.
    DICKEY v. FULTON COUNTY BOARD OF ASSESSORS.
    (776 S.E.2d 480)
   Ray, Judge.

Patricia Dickey (“taxpayer”) appeals from the superior court’s order finding that it was without jurisdiction to consider her untimely appeal from the Fulton County Board of Equalization’s decision regarding her ad valorem tax appeal. For the following reasons, we affirm.

This is a residential property tax appeal for tax year 2011 for property located at Tuxedo Road in Atlanta. The taxpayer appealed the 2011 tax assessment for the property to the Fulton County Board of Assessors. The Board of Equalization heard the tax appeal on March 5,2012. The Board of Equalization then sent its decision letter to the taxpayer via certified mail on March 14, 2012. Instructions for how to appeal to the superior court were included with the Board of Equalization’s decision letter, which informed the taxpayer that “a written Notice of Appeal must be filed within thirty (30) days of the date of this notice[.]” The taxpayer’s appeal was not filed until April 16, 2012, which was 33 days after the notice of the Board’s decision had been mailed to her. The superior court granted the Fulton County Board of Assessors’ motion for summary judgment on the grounds that it lacked jurisdiction to hear the matter because the appeal was not timely filed.

1. The taxpayer contends that the “time period for filing a notice of appeal is merely directory.” This argument is without merit. The “statutory limitation on the period of time in which an appeal from a judicial decision may be taken is jurisdictional.” (Citation omitted.) Webb v. Bd. of Tax Assessors of Madison County, 142 Ga. App. 784, 784 (236 SE2d 925) (1977). The version of OCGA § 48-5-311 (g) (2) in effect at the time of the trial court’s decision provides that the taxpayer’s notice of appeal “shall be mailed or filed within thirty (30) days from the date on which the decision of the county board of equalization or hearing officer is mailed [to the taxpayer].” Failure to file an appeal within the statutory 30 days bars any further right of appeal. See Hall County Bd. of Tax Assessors v. Avalon Hills Partners, 307 Ga. App. 520, 522, n. 7 (705 SE2d 674) (2010). Accord Webb, supra (right of appeal barred when notice of appeal filed one day late); Camden County Bd. of Tax Assessors v. Proctor, 155 Ga. App. 650, 650 (271 SE2d 902) (1980) (taxpayer lost the right to appeal when the taxpayer’s notice of appeal was mailed on the last day for filing an appeal under the statutory provision, but was not received until two days after expiration of appeal period). The taxpayer’s appeal, filed three days late, bars her right to appeal from the Board of Equalization’s decision.

2. Further, contrary to the taxpayer’s contention, the evidence shows that the Board of Equalization sent notice according to the statutory requirements. OCGA § 48-5-311 (e) (6) (D) (i) provides that “[n]otice of the [Board of Equalization] decision shall be given to each party by sending a copy of the decision by registered or certified mail or statutory overnight delivery to the appellant and by filing the original copy of the decision with the county board of tax assessors.” However, “[w]hen a taxpayer authorizes an attorney in writing to act on the taxpayer’s behalf, all notices required to be provided to the taxpayer regarding hearing times, dates, certifications, or official actions shall instead be provided to such attorney.” (Emphasis supplied.) OCGA § 48-5-311 (o).

The taxpayer argues throughout her brief that Property Tax Advisers, LLC (“PTA”) should have been served notice of the Board’s decision under OCGA § 48-5-311 (o) because it was her “attorney-in-fact,” despite the fact that it is not a law firm and there is no evidence that any of its members are licensed attorneys. This argument is without merit. Here, the taxpayer hired PTA, a business that assists taxpayers in appealing their county tax valuations and assessments, to assist in her appeal. Peter Curnin, the managing member of PTA, filed a notice of appeal to the Board on that taxpayer’s behalf, and such notice stated that PTA had “been retained and authorized to act on behalf of” the taxpayer and requested that “[a]ll correspondence, notices or other writings related to this appeal should be addressed to [PTA].” However, PTAis not a law firm, and Curnin is not an attorney.

When applying the rules of statutory construction to OCGA § 48-5-311 (o), it is important to note that OCGA § 48-5-311 distinguishes between a taxpayer’s employee (such as an agent or representative) and a taxpayer’s attorney, providing that “[p]roof of service [of a notice of appeal to the Board of Assessors] may be made ... by certificate of the taxpayer, the taxpayer’s attorney, or the taxpayer’s employee by written admission or by affidavit.” (Emphasis supplied.) OCGA § 48-5-311 (n). This distinction is also made in the statute in the context of arbitration: “At the time of certification of the appeal [to arbitration], the county board of tax assessors shall serve the taxpayer and the taxpayer’s attorney of record, if any, or employee with a copy of the certification[.]” (Emphasis supplied.) OCGA § 48-5-311 (f) (3) (A). The statute also specifically provides that a non-attorney can appear on the taxpayer’s behalf during a hearing on the notice of appeal: “A taxpayer may appear before the board concerning any appeal in person, by his or her authorized agent or representative, or both. The taxpayer shall specify in writing to the board the name of any such agent or representative prior to any appearance .. . before the board.” OCGA § 48-5-311 (e) (6) (A). Applying the rules of construction to the statute, and giving the “plain and ordinary meaning” to the word “attorney” in OCGA § 48-5-311 (o), it is clear that the legislature intended there to be a distinction between a taxpayer’s employee (such as PTA) and a taxpayer’s attorney. Accord Grand Partners Joint Venture I v. RealtaxResource, 225 Ga. App. 409, 411 (1) (a) (483 SE2d 922) (1997) (finding that the word “representative” does not mean “attorney” for the purpose of harmonizing OCGA § 48-5-311 (e) (6) (A) with the statutory prohibition against the unauthorized practice of law because representation does not necessarily involve the practice of law).

Decided May 27, 2015 —

Reconsideration denied July 21, 2015.

Hillis, Robison & Coffelt, Lindsey W. Hillis, Eric A. Coffelt, for appellant.

Cheryl M. Ringer, Frank M. Gaither, Jr., for appellee.

The legislature elected to permit non-lawyer representation before the county boards of equalization, but it did not elect to require the Board of Equalization to send notice of its decision to such non-lawyer representatives. The taxpayer “would have us add [an alternate] phrase into a subsection when the legislature, faced with a choice, did not do so. A statute shall be construed so as to give full force and effect to all its provisions and so as to reconcile any apparent conflicts.” (Citation and punctuation omitted.) Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 72 (1) (456 SE2d 642) (1995).

Here, the notice of the Board of Equalization’s findings was sent to the taxpayer as statutorily required via certified mail on March 14, 2012. The taxpayer admitted that she received a copy of this notice in her responsive pleading before the trial court. The taxpayer asserts that the trial court erred in relying upon an inadmissible and uncertified copy of the Board’s decision letter. However, the trial court expressly states that it relied upon the taxpayer’s admission in judicio that she did, in fact, receive the certified letter. See Wahnschaff v. Erdman, 232 Ga. App. 77, 78 (1) (502 SE2d 246) (1998).

Because the trial court correctly concluded that it was without jurisdiction to consider the taxpayer’s untimely appeal from the Board of Equalization’s decision, we affirm.

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.

       OCGA§ 48-5-311 was recently amended, effective July 1,2014. See Ga.L. 2014, p.672, § 4.

       The fundamental rules of statutory construction “require us to construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. While doing so, we must seek to effectuate the intent of the legislature.” (Punctuation and footnote omitted.) Ga. Transmission Corp. v. Worley, 312 Ga. App. 855, 856 (720 SE2d 305) (2011).

       This finding is further bolstered by the fact that there is an unrelated chapter of the Georgia Code governing “Attorneys” which sets forth rules governing those admitted to practice law in this state. See OCGA § 15-19-1 et seq. OCGA § 15-19-30 recognizes that “attorneys are officers of the courts of this state; that they have the exclusive right to practice law and represent members of the public in connection with their legal affairs. . . .” Although the legislature has specifically defined the word “Attorney” to include the phrase “attorney-in-fact” elsewhere in the Georgia Code, it declined to do so here. See OCGA § 33-17-1 (1) (governing insurance law) (“As used in this chapter, the term . . . Attorney’ means the attorney in fact of a reciprocal insurer. The attorney may be an individual, firm, or corporation”).


author: Miller, Judge.

text:
    A14A1770.
    REGENT v. THE STATE.
    (774 S.E.2d 213)
   Miller, Judge.

Steven Regent entered into a nonnegotiated guilty plea to one count of aggravated assault (OCGA § 16-5-21 (a) (2)) and one count of aggravated battery (OCGA § 16-5-24 (a)). The trial court sentenced Regent to twenty years with twelve years to serve on the aggravated assault charge and a consecutive sentence of ten years on the aggravated battery charge. The trial court also banished Regent from all of Georgia, except for Toombs County, as a special condition of probation. Following the grant of his petition for habeas relief, Regent appeals, contending that (1) the trial court erred in denying his motion to merge his convictions, and (2) the trial court violated OCGA § 42-8-35 (a) (6) (A) by banishing him from the entire state, except for Toombs County. For the reasons that follow, we affirm Regent’s convictions and his separate sentences for aggravated assault and aggravated battery. We vacate the banishment provision in his sentencing order, however, and we remand this case to the trial court solely for the purpose of resentencing on that provision.

Where, as here, the merger issue arises in a guilty plea case, this Court is

limited to finding error, as in all cases, based on the record____ While a defendant does not waive consideration of merger issues by pleading guilty, his guilty plea does waive the expansion of the factual record that occurs with a trial. The practical effect of that waiver will usually mean that he cannot establish (and the court cannot discern) that any of his convictions merged, particularly as a matter of fact, based on the limited record.

Nazario v. State, 293 Ga. 480, 488 (2) (d) (746 SE2d 109) (2013).

So viewed, the limited record from Regent’s guilty plea hearing shows that on January 27,2008, Regent and his girlfriend, the victim, went to a birthday party. When they returned to the victim’s house, Regent suddenly punched her in the face. Regent then grabbed the victim and hit her again. The victim fell to the floor, and Regent jumped on top of her and continued punching her in the face, until her eyes became swollen and she could not see. Regent became enraged and began to yell, “I’ll show you. I’ll get you.” The victim tried to get away from Regent and grab the phone, but he continued to beat her. When Regent stopped for a second, the victim heard him repeat, “I’ll show you. I’ll get you.”

When the victim was halfway unconscious, Regent dragged her into the dining room area, and went into the kitchen. The victim then heard Regent pull a knife out of the wooden butcher block on her kitchen counter. Regent came back to the dining room, straddled the victim, grabbed her hands, and pinned them down. Regent then took the knife and cut her throat from ear to ear, almost cutting her ear off. The victim felt her skin tearing, and she began to scream. Regent then took the knife and cut the victim’s neck again, this time below the area where he first slit her throat.

When she fought Regent and tried to get away from him, the victim also suffered several deep cuts to her hands. The victim’s ring finger was cut to the bone and a piece of her thumb was cut off, resulting in hypersensitivity in certain parts of her hand and no feeling in other parts of her hand.

The victim finally fainted and when she woke up, she saw that her blood was everywhere, including on her ceiling, walls and floor. The victim ran out of her front door and went to a neighbor’s house for help. When her neighbor failed to respond, the victim ran into the street and eventually found someone to call 911.

The victim was taken to the hospital where she remained in intensive care on a respirator for three days and underwent surgeries to reattach the glands and nerves in her neck. The main nerve going to the side of her face was completely severed and doctors could not reconnect that nerve without causing more damage to the victim’s face. As a result of her injuries, the victim has difficulty speaking, eating and swallowing. The victim also lost her sense of taste, and she has no feeling on the side of her face.

1. Regent argues that the trial court erred in failing to merge his convictions because the same facts were required to prove both the aggravated assault and aggravated battery charges. We disagree.

In determining whether one crime merges with another, we apply the required evidence test set forth in Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006).

Under the required evidence test, . . . the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

(Punctuation and footnote omitted.) Drinkard, supra, 281 Ga. at 215; see also Thomas v. State, 292 Ga. 429, 433 (4) (738 SE2d 571) (2013).

“A person commits the offense of aggravated assault when he or she assaults ... [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]” OCGA § 16-5-21 (а) (2). Regent was charged with and pled guilty to this offense because he cut the victim’s throat with a knife. The evidence presented at the plea hearing supported Regent’s conviction and separate sentence for this offense.

Aperson commits aggravatedbattery whenhe maliciously causes bodily harm to the victim by rendering a member of her body useless. OCGA § 16-5-24 (a). Regent was charged with and pled guilty to aggravated battery because he seriously disfigured the victim’s body by slashing her throat. As a result of her injuries, the victim has difficulty speaking, eating and swallowing, she lost her sense of taste, and she has no feeling on the side of her face. The evidence presented at the plea hearing also supported Regent’s conviction and separate sentence for this offense.

Since aggravated assault and aggravated battery are two separate offenses with different elements of proof, the charges do not merge, and it is irrelevant that both crimes stemmed from a single act or series of continuous acts. See Works v. State, 301 Ga. App. 108, 114 (б) (686 SE2d 863) (2009); Robbins v. State, 293 Ga. App. 584, 585-586 (667 SE2d 684) (2008). Accordingly, the trial court did not err in failing to merge Regent’s convictions for sentencing purposes.

2. Regent contends that the trial court violated OCGA § 42-8-35 (a) (6) (A) by banishing him from the entire state, except for Toombs County.

The legislature has expressly provided that banishment is a valid term and condition of probation. See OCGA § 42-8-35 (a) (6) (A). The trial court, however, cannot banish a probationer to any area within the state that does not consist of at least one entire judicial circuit. See id. Since Toombs County is part of the five-county Middle Judicial Circuit, which also includes Emanuel, Jefferson, Washington, and Candler Counties, the trial court was not statutorily authorized to banish Regent from the entire state, except for Toombs County. See OCGA §§ 15-6-1 (24) and 42-8-35 (a) (6) (A).

Decided July 9, 2015 —

Reconsideration denied July 22, 2015

Kenneth D. Kondritzer, for appellant.

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

Banishment from the entire state, except for the five-county Middle Judicial Circuit, was presumably an appropriate special probation condition. Nevertheless, because Regent’s sentencing order does not provide for banishment to the entire Middle Judicial Circuit, we are constrained to vacate the banishment provision in Regent’s sentencing order and remand this case to the trial court solely for the purpose of resentencing Regent on this provision. In doing so we emphasize that Regent’s sentence of twenty years with twelve years to serve on the aggravated assault charge and a consecutive sentence of ten years on the aggravated battery charge stands affirmed.

Judgment affirmed in part and vacated in part, and case remanded.

Doyle, C. J., and Dillard, J., concur.

       Regent entered his guilty plea on December 18, 2008. On March 11, 2014, the United States District Court for the Northern District of Georgia granted Regent’s habeas petition on the grounds that he was denied his constitutional right to appellate counsel.

       In this case, Regent cut or slashed the victim’s throat twice in apparently quick succession. Nevertheless, aggravated assault and aggravatedbattery are two separate offenses, even if they stem from a single act. See Works, supra, 301 Ga. App. at 114 (6).


text:
    A15A0227.
    HORNE v. THE STATE.
    (773 S.E.2d 467)
   Miller, Judge.

Following a jury trial, Damion Horne was convicted of aggravatedbattery(OCGA § 16-5-24 (a)), aggravated assault (OCGA § 16-5-21 (a) (2) (2008)), false imprisonment (OCGA § 16-5-41 (a)), and battery (OCGA § 16-5-23.1 (a)). Horne appeals from the denial of his motion for new trial, contending that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation omitted.) Wilson v. State, 318 Ga. App. 37 (733 SE2d 345) (2012).

So viewed, the evidence shows that the victim and Horne were in a long-term relationship and shared a residence. On August 11,2008, prior to the incident at issue, the victim called 911 and reported that Horne had physically assaulted her after he saw text messages on her phone concerning a sexual relationship with another man. The responding officer observed that the left side of the victim’s face was very swollen and she was very upset. Horne, who had left the residence before police arrived, was not arrested.

On August 18, 2008, the day at issue, the victim called 911 and reported that Horne came to the house, beat her, raped her, stabbed her with scissors, and would not let her leave the house. When police officers responded to the scene, they caught Horne as he was attempting to flee. A police officer made contact with the victim and observed that she was crying, her face was swollen and bruised, one eye was swollen and bloodshot, and she had wounds on her legs.

The victim was transported to the hospital. At the hospital, and during a police interview that was recorded and played for the jury, the victim reported that, on the day in question, Horne accused her of seeing another guy, began hitting her when she denied it, and then grabbed her by her hair and dragged her upstairs, where he threw her onto the bed and resumed hitting her while threatening to kill her.

A few months before the trial, the victim married Horne. At Horne’s trial, the victim recanted her allegations of abuse. In particular, the victim testified that she lied about the August 11 and August 18 incidents; most of her injuries were the result of consensual rough sex with Horne, while other injuries were self-inflicted; and Horne did not become physically violent with her, never threatened to kill her, and never hit her on the head. The victim testified that she lied about Horne hurting her and threatening to kill her because she hoped to get Horne into trouble for wanting to leave her.

After the victim recanted, the State called an expert in the field of intimate partner violence. The expert testified about the behaviors of victims of such violence, including that some of these victims minimize the acts of violence because they want to stay with the abuser, they often return to their abuser after an incident of violence, victims often change their mind about participating in the prosecution of such offenses and victims sometimes recant their claims of abuse once they realize the ramifications of filing a police report.

1. In three related enumerations of error, Horne contends that trial counsel was ineffective in handling the testimony of the State’s expert witness. Horne has failed to establish that trial counsel was ineffective.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [See] Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citations and punctuation omitted.) Bridges v. State, 286 Ga. 535, 537 (1) (690 SE2d 136) (2010).

(a) At trial, trial counsel filed a motion in limine to exclude the expert’s testimony regarding the behaviors of victims of intimate partner violence because the expert’s testimony was not admissible and there was no evidence the victim was in a cycle of abuse. While Horne argues that trial counsel could have supported the motion in limine with better authority and with a better understanding of the factual circumstances involved in this case, trial counsel’s decision on how to argue the motion is considered strategic and rarely constitutes reversible error. See Pitts v. State, 272 Ga. App. 182, 188-189 (4) (a) (612 SE2d 1) (2005).

In any case, Horne cannot establish that the motion in limine would likely have been granted because the expert’s testimony was clearly relevant to explain why a victim of intimate partner violence might recant in order to protect the abuser from prosecution. See Parrish v. State, 237 Ga. App. 274, 277 (2) (i) (514 SE2d 458) (1999) (where victim’s credibility is at issue, expert testimony regarding abusive relationships is relevant to explain the victim’s behavior); see also Housing Auth. of the City of Macon v. Younis, 279 Ga. App. 599 (631 SE2d 802) (2006) (“A motion in limine should [only] be granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial.”) (citation and punctuation omitted). Indeed,

[t]he battered person syndrome is a complex area of human response and behavior. Therefore, expert testimony must be admitted because it supplies an interpretation of the facts which differs from the ordinary lay perception.

(Citations and punctuation omitted; emphasis supplied.) Watson v. State, 278 Ga. 763, 771-772 (11) (604 SE2d 804) (2004). Since the expert’s testimony was admissible, Horne cannot show that trial counsel rendered ineffective assistance in his handling of the motion in limine.

(b) Horne next argues that trial counsel was ineffective for failing to effectively challenge the expert witness’s testimony, because there was evidence that contradicted or did not support the three-phase “battering cycle” that develops in abusive relationships. Decisions regarding

how to deal with the presentation of an expert witness by the opposing side, including whether to present counter expert testimony,,to rely upon cross-examination, to forego cross-examination and/or to forego development of certain expert opinion, is a matter of trial strategy which, if reasonable, cannot be the basis for a successful ineffective assistance of counsel claim.

(Citation and punctuation omitted.) Brown v. State, 292 Ga. 454, 456-457 (2) (738 SE2d 591) (2013).

Here, trial counsel testified at the new trial hearing that the expert witness testified about basic principles that were widely accepted and that no expert in the field would refute. Trial counsel further testified that he did not seek an additional expert on the issue of battered person syndrome because the defense’s theory was that many of the victim’s injuries resulted from consensual rough sex and that she fabricated some of the allegations of abuse in order to retaliate against Horne for wanting to leave her. In light of these circumstances, Horne cannot overcome the strong presumption that trial counsel’s decisions regarding how to deal with the State’s expert fell within the range of sound trial strategy and reasonable professional judgment.

Moreover, Horne cannot establish prejudice from trial counsel’s failure to present evidence showing that the victim’s behaviors did not comport with battered person syndrome. The expert witness did not evaluate the victim, opine that the victim suffered from this syndrome, or specify that the victim recanted in this case because she was a battered person. While Horne argues that trial counsel should have challenged the expert’s testimony that false reporting occurs less than one percent of the time, the expert did not opine on the veracity of the victim’s report to police in this case.

The jury is the arbiter of credibility, and it was able to assess all of the evidence and determine whether the victim’s recantation was credible. See Lowery v. State, 264 Ga.App. 655, 657 (3) (592 SE2d 102) (2003) (it is for the jury to determine the credibility of witnesses, and the jury may reject a witness’s explanation where it is inconsistent with or does not explain other evidence). The jury was entitled to reject the victim’s trial testimony and rely upon her prior statements, which constituted substantive evidence. See Meeks v. State, 281 Ga. App. 334, 336 (636 SE2d 77) (2006) (“[E]ven though a witness may recant on the stand, her prior inconsistent statements constitute substantive evidence on which the factfinder may rely.”) (citation and punctuation omitted). Given the victim’s prior statements to police and hospital staff that Horne assaulted her, along with those witnesses’ observations corroborating the same, there is no reasonable likelihood that the outcome of the trial would have been different had trial counsel more thoroughly challenged the State’s expert to show that the victim did not suffer from battered person syndrome. Therefore, Horne has failed to establish that trial counsel was ineffective on this ground.

2. Horne next contends that trial counsel was ineffective for using the defense of consent for the charges of aggravated assault, aggravated battery, and battery. We discern no error.

“Trial tactics and strategy, however mistaken they may appear with hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation and footnote omitted.) Terrell v. State, 276 Ga. App. 102, 104 (2) (622 SE2d 434) (2005).

Regardless of whether consent is a valid defense to aggravated assault, aggravated battery, or battery, Horne has failed to establish that trial counsel was ineffective. Horne was charged with rape, two counts of aggravated assault, aggravated battery, two counts of aggravated sodomy, false imprisonment, and battery. Trial counsel testified that the general defense strategy was that the victim consented to sex; many of the victim’s injuries were the result of consensual rough sex; the injury to the victim’s eye was self-inflicted during the August 11 argument; and the victim fabricated other allegations of abuse in order to retaliate against Horne. Home concedes that the defense was reasonable as to some of his charged offenses, in particular the rape and aggravated sodomy counts that were nolle prossed after the jury could not reach a verdict.

Given the favorable outcome as to nolle prossed offenses, we cannot say that trial counsel’s decision to consistently employ the consent defense, whether “wise or unwise,” was a patently unreasonable trial strategy. Cf. Lambert v. State, 287 Ga. 774, 776 (2) (700 SE2d 354) (2010) (despite presenting legally invalid coercion defense to murder charge, trial counsel was not ineffective where trial counsel was constrained by defendant’s admission that he committed fatal beating).

3. Horne also contends that trial counsel was ineffective for failing to obj ect to the improper argument of the prosecuting attorney. Specifically, Horne argues that the following portion of the State’s argument was improper: “We seek justice. We seek justice, and we’re not trying to punish innocent people.”

We agree with Horne that the prosecutor’s statement was improper. See Powell v. State, 291 Ga. 743, 745-746 (2) (733 SE2d 294) (2012) (forbidding arguments providing or implying that the government only prosecutes guilty people). However, “it is important to view those remarks not in isolation, but in their proper context.” (Citation omitted.) Id. at 746-747 (2) (b).

Here, before the prosecutor made the improper comment, trial counsel challenged the prosecution and investigation of the case by arguing that the State was convinced of Horne’s guilt as soon as it arrested him because it did not corroborate the victim’s outcry and ignored evidence undermining her claims. Specifically, trial counsel argued that the State conducted little, if any investigation, after Horne was arrested, ignored the lack of evidence of sexual assault, only briefly interviewed the victim following her release from the hospital, and failed to contact the police officer who responded to the August 11 911 call or interview individuals who witnessed the incident, which would have revealed that the victim was not credible. When the prosecutor made her closing argument, the prosecutor pointed out that several impartial witnesses, including police officers and hospital staff, who made contact with the victim following the August 18 incident testified at the trial. The prosecutor then stated:

[All of these witnesses] would have to be in a conspiracy to get Horne. And we don’t know him. The State, I promise you, was . . . minding their own business when the victim called the police, twice. Not once, but twice. She called on him and said, help me; He’s trying to kill me. We didn’t even know who he was before she called.
But why would the State get into a conspiracy to get him? Why would these witnesses get into [a] conspiracy to get him? We seek justice. We seek justice, and we’re not trying to punish innocent people.

Soon after these remarks, the prosecutor conceded that Horne was presumed innocent, and asked the jury to find him guilty based on the trial evidence.

Given the context of the prosecutor’s statements,

[w]e conclude that... the improper remarks of the prosecuting attorney did not undermine the fundamental fairness of the trial, and any potential harm was mitigated by the jury’s understanding that the prosecutor was countering defense counsel’s attack on the prosecution’s integrity.... Moreover, at the close of the case, the trial court specifically instructed the jury that neither the indictment nor closing arguments should be considered as evidence.

(Citations and punctuation omitted.) Powell, supra, 291 Ga. at 749 (2) (b). Under these circumstances, Horne has failed to establish a reasonable likelihood that, absent the failure of his lawyer to object to the prosecutor’s improper remarks, the outcome of the trial would have been different. Id.

4. Horne contends that trial counsel was ineffective for failing to file a special demurrer to the aggravated battery count, which allowed the jury to convict him of fracturing the victim’s cheekbone based on the uncharged altercation on August 11, 2008, rather than the charged assault of August 18. We disagree.

Since “a defendant can be re-indicted after the grant of a special demurrer, a failure to file such a demurrer generally will not support a finding of ineffective assistance of counsel.” (Citations and punctuation omitted.) Lewis v. State, 304 Ga. App. 831, 837 (5) (698 SE2d 365) (2010). “To succeed on his ineffective assistance claim, [Horne] was required to show that his trial counsel’s failure to specially demur materially impacted his ability to present a defense, thereby creating a reasonable probability that counsel’s deficiency changed the outcome of the case.” (Citation and punctuation omitted.) Id.

Here, the aggravated battery count charged that, on August 18, 2008, Horne “did maliciously cause bodily harm to [the victim] by seriously disfiguring her face; said accused having accomplished said act by striking said [victim] about the face causing a fracture to her cheek bone, forehead to swell and eye to blacken.” Horne has not shown that trial counsel’s failure to demur materially impacted his ability to present a defense since, although he argued that the date of the injury was unclear, his defense at trial was that the victim’s injury was accidentally self-inflicted. Accordingly, trial counsel’s failure to demur affords no basis for reversal. See Lewis, supra, 304 Ga. App. at 837-838 (5).

5. Horne contends that trial counsel was also ineffective for failing to request jury charges on lesser included offenses.

(a) Horne first argues that trial counsel should have requested a jury charge on simple battery as a lesser included offense of aggravated assault. We disagree.

Here, the indictment charged that Horne committed the aggravated assault by repeatedly striking the victim with a paddle, a “means likely to cause serious bodily injury when used offensively against the person.” Former OCGA § 16-5-21 (a) (2) provides that a person commits the offense of aggravated assault when that person assaults another person with any object which, when used offensively against a person, is likely to or actually does result in serious bodily injury. A person commits an assault by attempting to commit a violent injury to the person of another or by committing an act that places another in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-20 (a).

Contrary to Horne’s argument, former OCGA § 16-5-21 (a) (2) does not require that the State prove actual injuries. See Gutierrez v. State, 235 Ga. App. 878, 882 (3) (510 SE2d 570) (1998) (aggravated assault conviction does not require actual injury, as the State may establish commission of offense by showing that serious bodily injury is likely to result from the assault). Additionally, while Horne suggests that he only struck the victim once, the victim confirmed that Horne struck her with a paddle on the back and on the legs, suggesting that Horne struck her more than once. Under these circumstances, the failure to request a jury instruction on a lesser included offense of simple battery cannot support a claim of ineffective assistance because the evidence does not reasonably raise the issue that Horne may be guilty only of battery. See, e.g., Ellis v. State, 316 Ga. App. 352, 365 (8) (d) (729 SE2d 492) (2012).

(b) Horne argues that trial counsel also should have requested a jury charge on battery as a lesser included offense of aggravated battery. Horne was charged with aggravated battery for maliciously causing bodily harm to the victim by seriously disfiguring her face by striking the victim and causing a fracture to her cheekbone. At trial, Horne asserted that the victim’s injury was self-inflicted when, on August 11, 2008, one week prior to the incident at issue in this case, she swung a bottle at Horne, he blocked her swing, and the bottle ricocheted and hit her in the face. Since Horne’s defense was that he did not fracture the victim’s cheekbone, we cannot say that trial counsel’s failure to request a jury charge on battery was patently unreasonable. See Leonard v. State, 279 Ga. App. 192, 195 (2) (b) (630 SE2d 804) (2006) (failure to request lesser included offense of battery in connection with aggravated assault charge based on an all or nothing defense was not patently unreasonable).

6. In his last enumeration of error, Horne contends that trial counsel was ineffective for failing to request a limiting instruction on the statute of limitation for the aggravated battery count, because this instruction conflicted with the trial court’s jury charge on prior difficulties. We disagree.

During the victim’s testimony about the August 11 incident, the trial court instructed the jury that it was to consider this evidence only for the purpose of determining the state of feelings between Horne and the victim, and for no other purpose. At the conclusion of the trial, the trial court instructed the jury that the State was permitted to prove the commission of an offense on any date within the statute of limitation, so long as the indictment did not specifically allege that the date of the offense was material.

Horne speculates that these two instructions conflicted and this conflict created a strong possibility that the jury convicted him of aggravated battery based on injuries the victim suffered during the August 11 incident. In considering a claim that the defendant was convicted in a manner not alleged in the indictment, however, we focus on the record evidence and do not engage in conjecture or speculation. McCrickard v. State, 249 Ga. App. 715, 717-718 (1) (c) (549 SE2d 505) (2001).

Here, the trial court charged the jury on the specific allegations of the indictment. The court charged the jury that the State must prove the allegations of the indictment. The evidence established the allegations of the indictment. Other than the fact that prior difficulties evidence exists in the record, there is nothing to indicate the jury either was confused or ignored the trial court’s instructions and actually used such prior difficulties evidence to convict in a manner not alleged in the indictment.

Decided June 23, 2015 —

Reconsideration denied July 22, 2015

Reggie A. Lampkin, for appellant.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellee.

(Punctuation omitted.) McCrickard, supra, 249 Ga. App. at 718 (1) (c).

Even assuming that the victim broke her cheekbone on August 11, as suggested by Horne, the cheekbone fracture was not a material element of the offense, and there is evidence of other serious disfigurement to support the aggravated battery conviction. Notably, the detective testified that he observed that the victim had puncture wounds on her head, her eye was red and bruised, and she had knots all over her forehead, and it was for the jury to decide whether the disfigurement was serious. See Feagin v. State, 317 Ga. App. 543, 545 (1) (731 SE2d 778) (2012); see also Ganas v. State, 245 Ga. App. 645, 646 (1) (a) (537 SE2d 758) (2000) (severe bruising may constitute serious disfigurement). Under these circumstances, Horne’s claim that trial counsel was ineffective for failing to request a limiting instruction fails.

Judgment affirmed.

Andrews, P. J., and Branch, J., concur.

       Horne was also charged with rape (OCGA § 16-6-1 (a) (1)), two counts of aggravated sodomy (OCGA § 16-6-2 (a) (2)), and another count of aggravated assault. The trial court declared a mistrial as to these counts when the jury could not reach a verdict, and the State subsequently nolle prossed them.

       The “battering cycle” consists of three [phases]: the “tension-building” stage in which minor abusive episodes occur and the [victim] attempts to be as placating and passive as possible to avoid more serious violence; the “acute battering” stage in which explosive violence occurs; and the “contrition” stage in which the batterer asks for forgiveness and makes promises, such as to seek help and to refrain from further violence.
      (Citation omitted.) Johnson v. State, 266 Ga. 624, 626 (2), n. 4 (469 SE2d 152) (1996).