author: BARNES, Presiding Judge.

text:
    A10A1669.
    LEWIS v. THE STATE.
    (705 SE2d 693)
   BARNES, Presiding Judge.

Following a stipulated bench trial, Chris Lewis was convicted of possession of a firearm by a convicted felon, loitering and prowling, and carrying a concealed weapon. Lewis appeals from the denial of his motion for a new trial, contending that the trial court erred in denying his motion to suppress the firearm seized from his person. For the reasons set forth below, we affirm.

In reviewing the grant or denial of a motion to suppress, we construe the evidence in a light most favorable to upholding the trial court’s findings and judgment. When the trial court’s findings are based upon conflicting evidence, we will not disturb the lower court’s ruling if there is any evidence to support its findings, and we accept that court’s credibility assessments unless clearly erroneous.

(Citation omitted.) Sommese v. State, 299 Ga. App. 664, 665 (683 SE2d 642) (2009).

So viewed, the record reflects that two officers with the Cobb County Police Department were patrolling in a high-crime area known for armed robberies. Around 11:30 p.m., they observed Lewis alone in the parking lot of a convenience store near the gas pumps. The store was closed and the lights at the gas pumps were off, but the light was still on inside the store such that the manager could be seen preparing to leave. The officers knew that this particular store had been robbed numerous times during closing.

The officers observed Lewis walk away from the gas pumps to the edge of the unlit parking lot, then remain there while looking toward the inside of the store where the manager was getting ready to turn off the store lights. The officers drove into the parking lot in their marked patrol car, and Lewis began to walk away from the car but returned when the officers spoke to him. In response to the officers’ questions, Lewis, who appeared extremely nervous, said that he was walking to a nearby bus stop. The officers did not accept Lewis’s explanation and concluded that “[h]e didn’t belong in the area.” According to one of the officers who had been assigned to that patrol zone for approximately one year, people did not normally cross the store parking lot at that time of night to reach the bus stop.

Concerned that Lewis might be armed, the officers patted Lewis down for weapons. Lewis was wearing baggy pants, and the officers initially felt nothing suspicious. The second officer, however, noticed that Lewis turned his body away while the first officer patted down the front of his clothing. When the first officer subsequently returned to the patrol car to check Lewis’s license and for outstanding warrants, the second officer continued to observe Lewis, who still appeared extremely nervous and was looking around and grabbing the right front pocket of his pants. Believing that Lewis kept grabbing his pocket to readjust a weapon, the second officer performed a second pat-down of Lewis’s right front pocket. As soon as the second officer touched the outside of Lewis’s pocket, he felt a firearm and took Lewis into custody. The entire encounter lasted only a few minutes.

On appeal, Lewis contends that the first pat-down of his person by the officers was unconstitutional because the officers could not point to any specific articulable facts from which they could have inferred that he was armed and dangerous. Lewis further contends that the firearm recovered during the second pat-down was fruit of the poisonous tree that should not have been admitted as evidence by the trial court. We disagree.

“The Fourth Amendment protects a person’s right to be secure against unreasonable searches and seizures.” (Citation and punctuation omitted.) Davis v. State, 303 Ga. App. 785, 786 (694 SE2d 696) (2010). When a defendant raises a Fourth Amendment claim, we must be mindful that

[tjhere are three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.

(Citations and punctuation omitted.) McClain v. State, 226 Ga. App. 714, 716 (1) (487 SE2d 471) (1997). In a second-tier encounter, known as a Terry stop, “a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.” (Citation and punctuation omitted.) Id. See Terry v. Ohio, 392 U. S. 1, 21 (III) (88 SC 1868, 20 LE2d 889) (1968). The parties agree that the present case involved a second-tier encounter, and Lewis does not dispute that the officers had a particularized and objective basis for stopping and briefly detaining him in the parking lot.

In the context of a second-tier encounter,

an officer may conduct a pat-down search of a person whom he reasonably believes to be armed or otherwise dangerous to the officer or others. A reasonable search for weapons for the protection of the police officer is permitted where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.

(Punctuation and footnotes omitted.) Meadows v. State, 303 Ga. App. 40, 42 (1) (692 SE2d 708) (2010). See Terry, 392 U. S. at 27 (III). The officer’s belief that the individual is armed and dangerous cannot be predicated upon a mere suspicion or hunch; rather, the officer “must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” (Citation omitted.) Molina v. State, 304 Ga. App. 93, 95 (695 SE2d 656) (2010). The critical question that must be asked “is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U. S. at 27 (III). The burden is on the State to prove the lawfulness of a pat-down search for weapons. See Molina, 304 Ga. App. at 95.

The State met its burden in this case. The initial pat-down of Lewis was supported by the following combined, particularized facts observed by the officers: the presence of Lewis late at night in a high-crime area known for armed robberies; his proximity to a closed convenience store that had been robbed on numerous occasions during closing; Lewis’s observation of the store manager in the process of closing the store while standing in an unlit parking lot; his extreme nervousness; his wearing of baggy clothing in which a weapon could be easily concealed; the inadequacy of his explanation to the officers for his presence outside the store; and his initial fleeing from the officers when they pulled into the parking lot. These actions of Lewis were consistent with the officers’ hypothesis that Lewis was contemplating a robbery of the store manager, “which, it is reasonable to assume, would be likely to involve the use of weapons.” Terry, 392 U. S. at 28 (IV). As such, the trial court was authorized to find that a reasonably prudent person under these circumstances would have been warranted in believing that Lewis posed a danger to his or her safety, such that the officers’ act of conducting the initial pat-down search for a weapon was constitutionally permissible. See, e.g., id. (defendant and his companion’s suspicious behavior indicating that they were casing out store in “preface to a ‘stick-up’ ” authorized pat-down search for weapons); Woods v. State, 275 Ga. App. 340, 344 (1) (b) (620 SE2d 609) (2005) (defendant’s peering into parked car in mall parking lot where there had been a rash of vehicle break-ins, combined with inadequacy of his explanation to police for his suspicious conduct, authorized pat-down search for weapons); State v. McKinney, 265 Ga. App. 322, 323-325 (593 SE2d 865) (2004) (defendant and companion’s loitering in poorly lit area of parking lot outside motel that was known as haven for criminal activity, combined with the fact that they initially walked away upon officer’s approach and their suspicious responses to officer’s questions, authorized pat-down search for weapons).

Lewis, however, emphasizes that he provided the officers an innocent explanation for his presence, namely, that he was on the way to the bus stop, and he claims that his explanation should have dispelled any fears that the officers might have had for their safety. We are unpersuaded. One of the officers knew from his experience in that patrol zone that people did not normally cross the store parking lot at that time of night to reach the bus stop, and Lewis had been observed standing in the unlit parking lot, facing the convenience store, and watching the store manager during closing — conduct inconsistent with Lewis’s explanation. The officers were not required to stake their safety on Lewis’s explanation rather than upon their own determination of whether Lewis was armed. See In the Interest of A. T, 302 Ga. App. 713, 716 (2) (b) (691 SE2d 642) (2010); Hayes v. State, 202 Ga. App. 204, 205 (414 SE2d 321) (1991).

Lewis also relies heavily upon State v. King, 227 Ga. App. 466 (489 SE2d 361) (1997), but that case is clearly distinguishable. In King, the officer patted down the defendant after observing him and a companion standing on a public sidewalk, late at night, in front of an apartment complex located in a “high drug area.” Id. at 466. The officer testified that he patted down the defendant based upon his “general awareness” that drug activity often involved people who were armed or who had a propensity for violence. Id. at 467. Affirming the trial court’s grant of the defendant’s motion to suppress, we concluded that the trial court was entitled to find that the officer had no reason to suspect that the defendant was involved in criminal activity or that he was armed. Id. at 468-469.

Decided January 21, 2011.

Stephen R. Scarborough, for appellant.

Patrick H. Head, District Attorney, John R. Edwards, Albert T. Reeves, Assistant District Attorneys, for appellee.

In contrast to King, Lewis was standing in an unlit area looking into a closed business in a manner that suggested he was preparing to commit a robbery, not merely standing outside a residential apartment complex. See McKinney, 265 Ga. App. at 324 (distinguishing King on the ground that, in that case, the defendant and his companion were simply “standing on a public sidewalk” and the arresting officer “did not have a specific reason to believe that [the defendant] was armed”) (citation and punctuation omitted); Dickson v. State, 241 Ga. App. 575, 576-577 (527 SE2d 246) (1999) (distinguishing King on the ground that the “arresting officer . . . did not observe any suspicious actions,” given that “[t]he defendant had merely been standing outside late at night with another individual in an area known for drugs”). Furthermore, the issue in King was whether to affirm the trial court’s grant of the defendant’s motion to suppress. Therefore, the standard of review on appeal favored the trial court’s suppression. See Sommese, 299 Ga. App. at 665 (explaining standard of review). In contrast, the standard of review in the present appeal favors the trial court’s denial of suppression. See id. See also Dickson, 241 Ga. App. at 576 (distinguishing King on the basis that the Court of Appeals in that case was reviewing the trial court’s grant of a motion to suppress rather than its denial of a motion to suppress). Accordingly, King is simply inapposite.

For these reasons, the officers conducting the initial pat-down of Lewis acted in accordance with the Fourth Amendment, and so there was no taint upon the second pat-down leading to seizure of the firearm. It follows that the trial court committed no error in denying Lewis’s motion to suppress the firearm seized from his person and in relying upon that evidence to convict Lewis of the charged offenses.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

       We note that the constitutionality of the second pat-down of Lewis’s person was further supported by the second officer’s observation of Lewis’s evasive action during the first pat-down and Lewis’s repeated grabbing of his right front pocket. See, e.g., Louis v. State, 196 Ga. App. 276, 277 (1) (396 SE2d 25) (1990) (upholding pat-down search where “defendant was seen reaching for his crotch (where weapons are often hidden) and turning his back to the officers”).


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A10A1702.
    MILLER v. THE STATE.
    (705 SE2d 697)
   Dillard, Judge.

Following a jury trial, Kenny Miller was convicted on one count of robbery. On appeal, Mr. Miller challenges his conviction on the ground that the trial court erroneously authorized the jurors to compare and discuss the notes they had taken during the course of the trial while deliberating his fate. We find no error and affirm his conviction.

On appeal from a criminal conviction, we review the evidence in the light most favorable to the verdict, “giving deference to the jury’s determination on the proper weight and credibility to be given the evidence.” So viewed, the evidence showed that on the evening in question, the victim, an elderly woman, was leaving an H&R Block store when a juvenile in a white-hooded sweatshirt grabbed her purse containing $1,600, jumped into the passenger seat of a red vehicle, and then fled the scene. The victim observed and then reported the license plate number of the getaway vehicle to the police. A subsequent investigation revealed that this vehicle was registered to Mr. Miller’s mother and that Miller was driving the car at the time of the robbery. Miller, a juvenile, and a third individual were later arrested and charged with robbery and conspiracy to commit robbery. The juvenile — who had already entered a guilty plea in juvenile court — testified against Miller and implicated him as his co-conspirator in the crime. Miller was ultimately found guilty.

Mr. Miller’s sole contention on appeal is that the trial court erred in instructing the jurors “to collectively share their ideas and share [their] notes [taken during the course of the trial]” while deliberating his fate. Specifically, he argues that this instruction violated the continuing witness rule, which allows litigants to object to certain written evidence going into the jury room on the ground that “it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.”

Mr. Miller’s claim of error is waived, however, because he failed to object to the trial court’s directive at the time it was given. But even in the absence of such a waiver, it is well established that a trial court has discretion to authorize jurors to take notes during the course of a trial and to refer back to them during their subsequent deliberations. Juror notes, then, are not subject to a continuing witness objection, which pertains to documents that “contain their makers’ assertions of purported truths [and] are ascribed eviden-tiary value only to the extent that their makers are credible!,] ” such as “answers to written interrogatories, written dying declarations, and signed statements of guilt.” In sum, notes reflecting an attentive juror’s recollection or interpretation of the evidence presented during a trial — which are not evidence and have no evidentiary value — do not fall within the contemplated scope of the continuing witness objection.

Decided January 21, 2011.

Raymond B. Lakes III, Victoria L. Novak, for appellant.

Julia Fessenden Slater, District Attorney, Douglas L. Breault, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

        Burden v. State, 296 Ga. App. 441, 442 (674 SE2d 668) (2009) (citation and punctuation omitted); see also Overton v. State, 295 Ga. App. 223, 225 (671 SE2d 507) (2008) (same).

       The third defendant was tried with Mr. Miller, but after the jury declared that it was deadlocked as to the charges against him, the trial court declared a mistrial.

        Davis v. State, 285 Ga. 343, 348 (8) (676 SE2d 215) (2009) (punctuation omitted); see also Sims v. State, 275 Ga. App. 836, 839-40 (3) (621 SE2d 869) (2005) (same).

        See, e.g., Varner v. State, 297 Ga. App. 799, 804 (4) (678 SE2d 515) (2009) (holding that a continuing witness objection is waived if not timely asserted); Griffin v. State, 243 Ga. App. 282, 286 (6) (531 SE2d 175) (2000) (same).

        See Denson v. State, 149 Ga. App. 453, 455 (3) (254 SE2d 455) (1979) (holding that “[i]t was not error to allow the jurors to take notes during the trial and to refer to these notes during their deliberations”); see also Potts v. State, 259 Ga. 96, 104 (21) (376 SE2d 851) (1989) (same); Thomas v. State, 90 Ga. 437, 437 (16 SE 94) (1892) (same); White v. State, 137 Ga. App. 9, 10 (1) (223 SE2d 24) (1975) (same).

        Sims, 275 Ga. App. at 840 (3); see also Bryant v. State, 270 Ga. 266, 270-71 (3) (507 SE2d 451) (1998) (“The continuing witness rule prohibits writings from going out with the jury when the evidentiary value of such writings depends on the credibility of the maker.” (punctuation omitted)).


author: MILLER, Presiding Judge.

text:
    A10A2191.
    SHELTON v. THE STATE.
    (705 SE2d 699)
   MILLER, Presiding Judge.

Lorenzo Shelton pled guilty to aggravated assault with intent to rape (OCGA § 16-5-21 (a) (1)) and kidnapping (OCGA § 16-5-40 (a)) on February 2, 2007. He was sentenced to 20 years on each count to be served consecutively, for a total of 40 years imprisonment. More than three years later, on March 4, 2010, Shelton filed a pro se “Motion for Out-of-Time Appeal to Vacate Void Sentence,” contending (i) that his counsel rendered ineffective assistance. Specifically, he also alleges (ii) that his guilty pleas were accepted in violation of the constitutional prohibition against double jeopardy, (iii) that his sentence was void since the indictment failed to allege the essential elements of the offenses; and (iv) that the alleged asportation was insufficient to support the kidnapping conviction under the Garza test. The trial court denied the motion, from which Shelton appeals. For the reasons explained below, we affirm.

The factual basis for Shelton’s guilty plea reflected that on September 22, 2006 at 3:00 a.m., the female victim was doing laundry at a laundromat facility. Shelton entered the facility and approached the victim. Shelton then grabbed the victim and dragged her from the front of the facility to a bathroom in the back of the facility. While holding the victim in the bathroom for approximately 40 minutes, Shelton sexually assaulted the victim and had forcible sexual intercourse with the victim against her will.

The laundromat facility was equipped with a video camera that recorded portions of Shelton’s attack against the victim. The victim also was able to give a detailed description of Shelton as the attacker. Shelton was subsequently arrested and charged with the aggravated assault and kidnapping offenses.

Shelton pled guilty to the offenses and admitted that he had committed the acts as set forth in the factual basis described by the State. After serving three years of his forty-year sentence, Shelton filed a motion for an out-of-time appeal, which the trial court denied.

1. Shelton contends that the trial court erred in denying his motion for an out-of-time appeal based upon his claims of ineffective assistance of counsel. We discern no error.

“In order for an out-of-time appeal to be available to a defendant on the basis of alleged ineffective assistance of counsel, the defendant must have had the right to file a direct appeal.” Stewart v. State, 268 Ga. 886, 887 (494 SE2d 665) (1998). Following the entry of a guilty plea, “a direct appeal will lie only if the issue on appeal is capable of resolution by reference to facts on the record.” Id. See also Grantham v. State, 267 Ga. 635 (481 SE2d 219) (1997); Olguin v. State, 296 Ga. App. 208, 209 (674 SE2d 89) (2009).

[W]here a defendant appeals a guilty plea on the grounds of ineffective assistance of counsel, the issues which he seeks to raise on appeal can be developed only in the context of a post-plea hearing. Accordingly, the defendant may not file a direct appeal where the only evidence in the record is the transcript of the guilty plea hearing.

(Citations and punctuation omitted.) Olguin, supra, 296 Ga. App. at 209.

Here, Shelton contends that his counsel was ineffective in his representation and provided misinformation to induce his guilty plea. Under these circumstances, Shelton’s claims could not be resolved by reference to facts contained in the record and must be developed in a post-plea hearing. Consequently, the trial court did not err in denying the motion for an out-of-time appeal; Shelton’s remedy must be pursued in a habeas corpus action. See Coleman v. State, 278 Ga. 493, 494 (2) (604 SE2d 157) (2004); Stewart, supra, 268 Ga. at 887; Grantham, supra, 267 Ga. at 636; Olguin, supra, 296 Ga. App. at 209.

2. Shelton also contends that his guilty pleas were accepted in violation of the constitutional prohibition against double jeopardy because the aggravated assault and kidnapping offenses should have been merged as a matter of law and fact. Shelton’s contention is without merit.

For a kidnapping conviction, the state must prove an unlawful asportation of a person against his will. OCGA § 16-5-40 [(a)]. For a conviction on a charge of aggravated assault with intent to rape, the state must show that appellant assaulted the victim with the intent to rape her. See OCGA § 16-5-21 (a) (1).

(Citation and punctuation omitted.) Strozier u. State, 171 Ga. App. 703, 705-706 (4) (320 SE2d 764) (1984). In setting forth the factual basis for the plea, the State asserted that Shelton had dragged the victim from the front of the laundromat facility into a bathroom in the back of the facility, which formed a basis for the kidnapping charge. The State further asserted that Shelton had sexually assaulted the victim while holding her in the bathroom, which formed a basis for the aggravated assault with the intent to rape charge. Shelton admitted that the incident had occurred as described by the State.

Since each of the offenses was separate and required proof of different facts, they did not merge as a matter of law or fact. See McGuire v. State, 266 Ga. App. 673, 678 (3) (598 SE2d 55) (2004); Strozier, supra, 171 Ga. App. at 705-706 (4). See also Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006) (adopting the “required evidence” test for the determination of merger issues). It thus follows that “[u]nder the circumstances of this case, the same conduct [was] not being punished twice nor [was] one act included in the other so as to proscribe the separate conviction and punishment for each act.” (Citations and punctuation omitted.) Strozier, supra, 171 Ga. App. at 706 (4).

3. Shelton further contends that his motion should have been granted since his sentence was void. His contention is without merit.

(a) “A sentence is void if the court imposes punishment that the law does not allow. When the sentence imposed falls within the statutory range of punishment, the sentence is not void[.]” (Citations and punctuation omitted.) Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). Upon Shelton’s entry of the guilty plea to aggravated assault and kidnapping, the trial court accepted the State’s recommendation and sentenced Shelton to 20 years for each offense, to be served consecutively for a total of 40 years imprisonment. The offenses of aggravated assault and kidnapping both carried maximum sentences of 20 years. See OCGA §§ 16-5-21 (b) (2007); 16-5-40 (b) (1) (2007). Since Shelton’s sentence fell within the statutory range, it was not void. See Worley v. State, 265 Ga. 251, 252 (1) (454 SE2d 461) (1995) (“OCGA § 17-10-1 authorizes a trial judge to sentence a defendant within limits prescribed by the applicable criminal statute.”); Baez v. State, 257 Ga. App. 129, 130 (570 SE2d 352) (2002) (discerning no merit in a defendant’s untimely attempt to seek modification of his sentence under the guise of claiming that his sentence was void; a sentence that is within the range prescribed by law is not void).

(b) Shelton nevertheless argues that his sentence was void on the ground that the indictment failed to allege the essential elements of the aggravated assault and kidnapping offenses. Shelton’s claim, however, is procedurally flawed.

[T]he right to be tried upon an indictment that is perfect in form and in substance is waived when a defendant fails to timely and properly challenge the indictment. Because [Shelton] failed to challenge the [indictment] by way of special demurrer or by filing a motion to quash before entering his guilty plea, he waived the right to a perfect [indictment].

(Citations omitted.) State v. Hammons, 252 Ga. App. 226, 229 (2) (a) (555 SE2d 890) (2001).

Moreover, while a general demurrer challenging the validity of an indictment may be raised at any time, it may not be raised in any proceeding. See Grogan v. State, 297 Ga. App. 251, 252 (676 SE2d 764) (2009).

When an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law[,] and no demurrer to the indictment is interposed and the accused is convicted under the indictment and judgment is entered, the accused’s proper remedy is a motion in arrest of judgment or habeas corpus.

(Punctuation and footnote omitted.) Id. Shelton failed to file a motion in arrest of judgment within the same term of court in which the judgment was entered, and thus his remedy is limited to a habeas corpus action. Id. Accordingly, Shelton’s motion for an out-of-time appeal raising this claim was properly denied.

(c) Shelton also argues that his kidnapping charge was void in light of Garza v. State, 284 Ga. 696, 701-702 (1) (670 SE2d 73) (2008), which established a new test for analyzing the element of asportation. He argues that his case was pending in the “pipeline” at the time of the Garza decision, and thus the new test should have been applied in his case. Again, we discern no reversible error.

At the time of Shelton’s crime in September 2006 and his subsequent conviction in February 2007, our state law provided that the element of asportation supporting a kidnapping charge could be established by proof of movement of the victim, however slight. See Lyons v. State, 282 Ga. 588, 591 (1) (652 SE2d 525) (2007); Phillips v. State, 284 Ga. App. 683, 685 (1) (b) (644 SE2d 535) (2007); Mullins v. State, 280 Ga. App. 689, 690 (1) (634 SE2d 850) (2006). Our Supreme Court later adopted a new test for determining the element of asportation in Garza, supra, 284 Ga. at 701-702 (1). Now, under Garza, four factors must be considered in determining whether the movement of the victim constituted the asportation needed for kidnapping:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

Id. at 702 (1). All of the factors do not have to favor the State to prove asportation. See Abernathy v. State, 299 Ga. App. 897, 900 (1) (685 SE2d 734) (2009).

Under the “pipeline” approach, “a new rule of criminal procedure . . . will be applied to all cases then on direct review or not yet final.” Taylor v. State, 262 Ga. 584, 586 (3) (422 SE2d 430) (1992). Shelton’s case, however, had been finalized and was not pending on direct review when the Garza decision was rendered. Accordingly, contrary to Shelton’s contention, his case was not in the pipeline at the time of the Garza decision. Compare Grimes v. State, 297 Ga. App. 720, 722 (678 SE2d 167) (2009) (holding that since the defendant’s appeal was pending when the Garza decision was issued, it was in the “pipeline” and the Garza test applied).

Pretermitting whether the holding in Garza is otherwise subject to retroactive application in a collateral appeal, applying the Garza test in this case would not result in the reversal of Shelton’s conviction. Under the Garza test, Shelton’s movement of the victim was sufficient to satisfy the asportation element for the kidnapping offense. The factual basis for the plea reflected that although the movement of the victim from the front of the laundromat facility to the bathroom in the back of the facility was of minimal duration, it did not constitute an inherent part of the aggravated sexual assault; rather, the movement created additional dangers to the victim by isolating her from protection or rescue. See In the Interest of D. S., 302 Ga. App. 873, 874-875 (1) (691 SE2d 897) (2010); Abernathy, supra, 299 Ga. App. at 899-901 (1); Flores u. State, 298 Ga. App. 574, 575-577 (1) (680 SE2d 609) (2009). Accordingly, the movement in question was in the nature of the evil that the kidnapping statute was intended to address, and Shelton’s guilty plea and conviction of the offense was not void. See id.

Decided January 24, 2011.

Lorenzo Shelton, pro se.

Kermit N. McManus, District Attorney, Forest L. Miles, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

       See Garza v. State, 284 Ga. 696, 701-702 (1) (670 SE2d 73) (2008).

       Uniform Superior Court Rule 33.9 provides that before entering a judgment on a guilty plea, the trial court must determine on the record that a factual basis exists for the plea. See State v. Evans, 265 Ga. 332, 333-334 (1) (454 SE2d 468) (1995). At the plea hearing, the State described the incident and Shelton’s criminal acts that supported the charged offenses and Shelton’s guilty plea.

       Moreover,
      [t]o the extent that [Shelton] is challenging the validity of his guilty plea, his challenge to the trial court’s acceptance of the plea must be raised through habeas corpus proceedings because he neither sought to withdraw his guilty plea nor filed a direct appeal until after the expiration of the term of court in which his plea was accepted.
      (Citation omitted.) Denova v. State, 268 Ga. App. 16 (1) (601 SE2d 400) (2004). See also Coleman, supra, 278 Ga. at 494 (2), n. 5.

       To the extent that Shelton’s arguments are based upon other charges in the indictment for which he was not convicted, those charges are irrelevant to our analysis. See Middlebrooks v. State, 289 Ga. App. 91, 93 (1) (656 SE2d 224) (2008).

       We note that the trial court’s order denying Shelton’s motion only addressed the ineffective assistance of counsel issue and failed to address the remaining claims presented in Shelton’s motion. Under these circumstances, this Court generally would remand the case for the trial court’s determination of the remaining claims. “However, remand should be principled and necessary, not automatic, delaying, and wasteful of judicial and legal resources. ... [A] judgment that is right for any reason will be affirmed.” (Citations and punctuation omitted.) Banks v. State, 275 Ga. App. 326, 329, n. 4 (620 SE2d 581) (2005). To the extent that Shelton’s remaining claims present legal or procedural issues that may be decided based upon the record before this Court, remand would serve no useful purpose. See id. See also Ruiz v. State, 286 Ga. 146, 149 (2) (b) (686 SE2d 253) (2009) (holding that remand is not mandated if the appellate court can determine from the record that the appellant cannot prevail on his claim); Elliott v. State, 230 Ga. App. 855, 859 (4) (d) (497 SE2d 817) (1998) (same). Accordingly, we will address Shelton’s remaining claims in the interest of judicial economy.

       Subsequent to Garza, the legislature amended the kidnapping statute as to crimes committed on or after July 1, 2009. See Ga. L. 2009, p. 331, § 1; Leverette v. State, 303 Ga. App. 849, 850 (1), n. 4 (696 SE2d 62) (2010). Because Shelton’s crimes occurred prior to July 1, 2009, the amendment is inapplicable here.

       We note that in Hammond v. State, 289 Ga. 142 (710 SE2d 124) (2010), the Supreme Court of Georgia granted a writ of certiorari to determine whether the holding of Garza applies retroactively. The Supreme Court of Georgia has previously held that a new rule will be applied retroactively in cases on collateral review if it is a ruling of substantive criminal law. See Luke v. Battle, 275 Ga. 370, 373-374 (2) (565 SE2d 816) (2002) (concluding that a change in the requirement to prove the element of force for aggravated sodomy against a victim under the age of consent was a ruling of substantive criminal law, which had to be applied retroactively on collateral review); Scott v. Hernandez-Cuevas, 260 Ga. 466, 466-467 (396 SE2d 900) (1990) (retroactively applying a change in the substantive law as to the element of possession for the trafficking in cocaine offense). Alternatively, a new rule of criminal procedure will be applied retroactively on collateral review if it falls within one of two exceptions: (1) it places certain kinds of conduct beyond the power of the criminal law-making authority to proscribe, or (2) it affects the accuracy of the factfinding process and implicates the fundamental fairness of the trial. See Teague v. Lane, 489 U. S. 288, 311-314 (V) (109 SC 1060, 103 LE2d 334) (1989); Alford v. State, 287 Ga. 105, 107-108 (695 SE2d 1) (2010).

       To date, the State has failed to file a brief in this appeal. On November 22, 2010, the State filed a motion for an extension of time to file its brief. On December 7, 2010, Shelton filed a motion to strike the appellee’s brief in light of the State’s failure to file timely. Both motions are denied as moot.


text:
    A10A2351.
    POWERHOUSE CUSTOM HOMES, INC. et al. v. 84 LUMBER COMPANY, L.P.
    (705 SE2d 704)
   MILLER, Presiding Judge.

84 Lumber Company, L.P (“84 Lumber”) sued Powerhouse Custom Homes, Inc. (“Powerhouse”) and guarantor Lucian Anderson, Jr., to collect amounts owed on an open account. The trial court subsequently granted summary judgment in favor of 84 Lumber. Powerhouse and Anderson appeal, contending that the parties had entered into an enforceable settlement agreement, which precluded the entry of summary judgment in the suit. We discern no error and affirm.

Summary judgment is authorized when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “We review a grant of summary judgment de novo, construing the evidence and all reasonable inferences in favor of the nonmoving party.” (Citation omitted.) Traditional Properties v. Performance Food Group of Ga., 291 Ga. App. 442 (662 SE2d 250) (2008).

So viewed, the record shows that on November 6, 2002, Powerhouse entered into a credit agreement that allowed it to obtain building materials and labor from 84 Lumber for various construction projects. Anderson, the president of Powerhouse, signed a personal guaranty ensuring payment of any and all amounts due under the credit account. Thereafter, 84 Lumber sold and delivered building materials to Powerhouse under the credit account, resulting in a balance owed in the amount of $95,260.42.

After Powerhouse and Anderson failed to remit payment of the balance, 84 Lumber filed the instant suit to collect on the open account. During the suit, 84 Lumber served Powerhouse and Anderson with discovery requests, including a request for admissions. Powerhouse and Anderson failed to answer the request for admissions.

On August 20, 2009, the parties participated in a court-ordered mediation session. During the mediation session, the parties’ counsel signed a mediation agreement, which contained a provision that established a ten-day deadline for objections. The provision stated that “[i]f there [was] no objection to the agreement within 10 calendar days following the mediation session, the agreement [would] be binding upon all parties [and be] enforceable as a settlement agreement.” The mediation agreement then set forth a settlement “proposal” presented by Powerhouse and Anderson for 84 Lumber’s consideration. The proposal provided that it was “subject to acceptance or rejection by [84 Lumber] for fifteen calendar days” and that such was “the time [frame] [in which] the proposal [was] available for acceptance[.]”

84 Lumber did not accept the settlement proposal within the time frame set forth in the written document. Rather, on September 14, 2009, 84 Lumber’s counsel expressly rejected the proposal. Thereafter, 84 Lumber filed a motion for summary judgment, along with an affidavit from its legal assistant that authenticated the account records and confirmed the amount owed. In response to the motion, Powerhouse and Anderson claimed that the case had been settled at the mediation session and attached a copy of the mediation agreement setting forth the proposal.

The trial court conducted a hearing on the motion. At the hearing, counsel for Powerhouse and Anderson again argued that the case had been settled, but acknowledged that 84 Lumber had not communicated approval of the proposal set forth in the mediation agreement. Following the hearing, the trial court entered an order granting summary judgment in favor of 84 Lumber, finding that the mediation agreement did not amount to an enforceable settlement of the suit and that the defendants’ failure to respond to the request for admissions resulted in the admission of all of the material facts supporting 84 Lumber’s claims. We agree.

Under Georgia law, an agreement alleged to be in settlement and compromise of a pending lawsuit must meet the same requisites of formation and enforceability as any other contract. In this regard, it is well settled that an agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject matter, and in the same sense. . . . [A]n answer to an offer will not amount to an acceptance, so as to result in a contract, unless it is unconditional and identical with the terms of the offer. To constitute a contract, the offer must be accepted unequivocally and without variance of any sort.

(Citations and punctuation omitted.) Jones v. Frickey, 274 Ga. App. 398, 401 (618 SE2d 29) (2005). “Absent such mutual agreement, there is no enforceable contract as between the parties.” (Citations and punctuation omitted.) Herring v. Dunning, 213 Ga. App. 695, 697 (446 SE2d 199) (1994).

By its express terms, the mediation agreement referenced by Powerhouse and Anderson merely set forth a “proposal,” amounting to a settlement offer that was subject to acceptance or rejection by 84 Lumber. It is undisputed that 84 Lumber did not communicate acceptance of the proposal. It thus follows that no settlement agreement was reached. See Jones, supra, 274 Ga. App. at 402; Valiant Steel &c. v. Roadway Express, 205 Ga. App. 237, 238-239 (1) (421 SE2d 773) (1992); Meece v. McCroskey, 151 Ga. App. 369, 370-371 (259 SE2d 645) (1979).

Nevertheless, in support for their contention that a settlement had occurred, Powerhouse and Anderson rely upon the provision of the mediation agreement that established a ten-day deadline for objections. Their reliance upon this provision, however, is misplaced. The ten-day deadline provision for objections could only apply if an agreement had in fact been reached by acceptance of the proposal. Since 84 Lumber did not accept the proposal, no settlement agreement was reached, and the ten-day deadline provision was inapplicable.

Decided January 24, 2011.

Grady A. Roberts III, for appellants.

J. Christopher Simpson, Jonathan S. Bell, for appellee.

Moreover, because Powerhouse and Anderson failed to respond or object to the request for admissions, the pertinent facts and legal conclusions set forth in the requests' were deemed admitted as a matter of law under OCGA § 9-11-36 (a) (2). See Jackson v. Nem-degelt, Inc., 302 Ga. App. 767, 769 (691 SE2d 653) (2010); Hammett v. Bailey, 147 Ga. App. 105, 106 (248 SE2d 180) (1978). The admissions conclusively established that Powerhouse and Anderson owed 84 Lumber the principal amount of $95,260.42 under the open account; that Powerhouse and Anderson had defaulted by failing to pay thé debt owed; and that Powerhouse and Anderson owed accrued interest on the debt in the amount of $4,791.96 through January 21, 2009, plus accrued interest at a rate of 18% per annum from January 21, 2009, post-judgment interest, attorney fees, and costs. These admissions left no genuine issue of material fact on 84 Lumber’s complaint, and thus, 84 Lumber was entitled to judgment as a matter of law. See Jackson, supra, 302 Ga. App. at 770-771; Hammett, supra, 147 Ga. App. at 106-107. Accordingly, the trial court did not err in granting summary judgment in favor of 84 Lumber. See id.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

       We note that the ten-day deadline provision could not be read as providing for an acceptance of the proposal by default. By its terms, the ten-day deadline provision did not govern acceptance of the proposal, but rather, established a deadline for tendering any subsequent objections in the event that an agreement was reached. Acceptance of the proposal was instead governed by a separate provision, which established a longer period of fifteen days for acceptance or rejection of the proposal’s terms. Significantly, the acceptance provision did not state that a failure to timely respond within the 15-day period would amount to a default or implied acceptance of the proposal’s terms. Accordingly, contrary to the defendant’s argument, it is immaterial whether 84 Lumber had rejected the proposal within the 15-day period. See Valiant Steel &c., supra, 205 Ga. App. at 238-239 (1). Rather, the material fact is that 84 Lumber had not accepted the proposal. See id.


author: Ellington, Chief Judge.

text:
    A10A1668.
    LANDMARK AMERICAN INSURANCE COMPANY v. KHAN.
    (705 SE2d 707)
   Ellington, Chief Judge.

Jamil Khan, individually and as assignee of 6420 Roswell Road, Inc., d/b/a “Flashers,” filed suit against Landmark American Insurance Company, asserting, inter alia, that Landmark breached its duty to defend its insured, Flashers, in an underlying premises liability suit brought by Khan. Following a hearing, the trial court granted Khan’s motion for partial summary judgment on the issue of Landmark’s liability on the failure-to-defend claim and denied Landmark’s motion to dismiss Khan’s complaint. Landmark appeals from the trial court’s order, contending that the court erred in failing to dismiss Khan’s complaint and in ruling in favor of Khan as to liability because its insurance contract with Flashers barred coverage in the underlying action. For the following reasons, we disagree and affirm the trial court’s ruling.

1. Landmark contends that the trial court erred in denying its motion to dismiss Khan’s complaint against Landmark asserting a breach of its duty to defend Flashers in the underlying suit, arguing that, because its insurance contract with Flashers barred coverage in the underlying suit, Khan’s claim must fail.

“A motion to dismiss for failure to state a claim should be sustained if the allegations of the complaint reveal, with certainty, that the plaintiff would not be entitled to relief under any state of provable facts asserted in support of the complaint.” (Footnote omitted.) LaSonde v. Chase Mtg. Co., 259 Ga. App. 772, 774 (1) (577 SE2d 822) (2003). “On appeal, this Court reviews the denial of a motion to dismiss de novo. However, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in [the plaintiffs] favor.” (Citations, punctuation and footnote omitted.) Liu v. Boyd, 294 Ga. App. 224 (668 SE2d 843) (2008).

Viewed in such light, the relevant pleadings show as follows: On the evening of November 4, 2006, Jamil Khan went to an Atlanta nightclub, Flashers, parked in the back lot, paid an entrance fee, and stayed at the club approximately 45 minutes. As Khan left the club and walked to his car, he saw two individuals exit the club behind him. As Khan got into his car, one of the individuals shot at him with a firearm, hitting him six times in the chest and back. Khan filed a premises liability suit against Flashers, alleging that Flashers had negligently failed to provide adequate security for its invitees. In addition, Khan asserted a cause of action for assault and battery, alleging that an employee or employees of Flashers either “ordered and directed the assault” on him or actually shot him six times. According to the complaint, the employee or employees were acting as employees or agents of Flashers within the course of Flashers’ business and, thus, Flashers was responsible for their actions under the doctrine of respondeat superior.

Landmark notified Flashers that it would not defend it against Khan’s claims because the claims were not covered under Flashers’ insurance policy. Specifically, Landmark stated that the policy only covered an assault or battery if it was committed by a Flashers employee while the employee was trying to protect persons or property. According to Landmark’s investigation into the shooting, the person who shot Khan did not fall within that description and, thus, the assault was not covered by the policy. The letter advised Flashers that, “[sjince there is no coverage for this claim under your policy, [Landmark] will not defend or indemnify you with regard to this matter. You should take immediate steps, at your own expense, to protect your interests in this matter.”

The trial court ultimately entered an order striking Flashers’ answer, entering a default judgment, and awarding Khan over $2.3 million on his complaint. In exchange for Khan’s promise not to execute the judgment against Flashers’ assets, Flashers assigned to Khan all of its causes of action against Landmark which arose out of the November 2006 shooting incident, including claims based upon Landmark’s failure to defend Flashers in the Khan lawsuit and its failure to provide insurance coverage to Flashers.

Khan then filed the instant complaint against Landmark, asserting claims for the breach of its duty to defend, bad faith refusal to defend or settle under OCGA § 33-4-6, and breach of contract. Landmark filed a motion to dismiss the complaint, and Khan moved for partial summary judgment as to Landmark’s liability on his claim for breach of the duty to defend. In a comprehensive order, the trial court found that Landmark had breached its duty to defend Flashers in the underlying suit, and it denied Landmark’s motion to dismiss and granted Khan’s motion for partial summary judgment on the issue of Landmark’s liability on his claim for breach of the duty to defend.

As noted above, on appeal, Landmark contends that the trial court should have dismissed Khan’s claim for breach of its duty to defend, because its insurance contract with Flashers barred coverage in the underlying action. Specifically, Landmark argues that, because Khan’s underlying personal injury claim against Flashers did not specifically allege that the assault and/or battery was committed by Flashers’ employees while they were protecting persons and/or property, the acts were not covered by the insurance policy.

The controlling issue is whether the insurance policy covers either of the claims asserted by Khan in his underlying complaint: assault and battery by Flashers’ employees or premises liability based upon Flashers’ negligence in failing to provide adequate security. “An insurer’s duty to defend is determined by comparing the allegations of the complaint with the provisions of the policy.” (Punctuation and footnote omitted.) Pilz v. Monticello Ins. Co., 267 Ga. App. 370, 371 (599 SE2d 220) (2004).

Construction and interpretation of [an insurance] contract are matters of law for the court. ... If the court finds that an ambiguity exists, it is the court’s duty to resolve that ambiguity by applying the pertinent rules of contract construction. The rules of construction require the court to consider the policy as a whole, to give effect to each provision, and to interpret each provision to harmonize with each other. In addition, it is well established that a court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless. Finally, any ambiguities in the contract are strictly construed against the insurer as drafter of the document, any exclusion from coverage sought to he invoked by the insurer is likewise strictly construed, and insurance contracts are to be read in accordance with the reasonable expectations of the insured where possible.

(Punctuation and footnotes omitted; emphasis in original.) ALEA London Ltd. v. Woodcock, 286 Ga. App. 572, 576 (2) (649 SE2d 740) (2007).

Moreover, “complaints and other pleadings should be construed as to do substantial justice, that is, liberally in favor of the pleader.” (Citations omitted.) Dudley v. Wachovia Bank, 290 Ga. App. 220, 225 (2) (659 SE2d 658) (2008). Thus,

[i]f the facts as alleged in the complaint even arguably bring the occurrence within the policy’s coverage, the insurer has a duty to defend the action. Indeed, to excuse the duty to defend the petition must unambiguously exclude coverage under the policy, and thus, the duty to defend exists if the claim potentially comes within the policy. Where the claim is one of potential coverage, doubt as to liability and insurer's duty to defend should be resolved in favor of the insured.

(Citation, punctuation and footnote omitted; emphasis supplied.) BBL-McCarthy v. Baldwin Paving Co., 285 Ga. App. 494, 497-498 (1) (a) (646 SE2d 682) (2007). See also Penn-America Ins. Co. v. Disabled American Veterans, 268 Ga. 564, 565 (490 SE2d 374) (1997) (“[T]he insurer is obligated to defend where ... the allegations of the complaint against the insured are ambiguous or incomplete with respect to the issue of insurance coverage.”); Driskell v. Empire Fire &c. Ins. Co., 249 Ga. App. 56, 61 (3) (547 SE2d 360) (2001) (Because an insurance contract obligates the insurer to defend any claim asserting liability under the policy, “the allegations of the complaint against the insured are looked to to determine whether a liability covered by the policy is asserted,” even if such allegations appear to be “groundless.”) (punctuation and footnote omitted; emphasis supplied).

As shown above, the policy at issue here expressly excludes bodily injury claims “directly or indirectly arising from any actual or alleged ‘assault’ and/or ‘battery’ ” unless the assault and/or battery was committed by the named insured or a Flashers employee, employees, or agent while trying to protect persons and/or property. Because the exclusion’s use of the phrase “arising from” focuses on the origin of the claims (the assault and/or battery), Khan’s claim for damages from the assault and battery, as well as the premises liability (negligence) claim that would not have arisen but for the alleged assault and battery, are not covered by the policy, unless the assault and/or battery was committed by a Flashers employee, employees, or agent while trying to protect persons and/or property.

In the underlying complaint, Khan asserted that Flashers’ employee or employees either shot him six times or ordered someone else to shoot him, that the assailants were either employees or agents of Flashers at the time of the shooting, and that Flashers “is responsible for the intentional or negligent acts and omissions of its employees or agents made within the course of its business under the established doctrine of respondeat superior.”

In denying Landmark’s motion to dismiss, the trial court ruled that

[Khan’s] allegation that the [Flashers] employee was acting within [the] scope of employment was sufficient to trigger [Landmark’s] duty to defend. It is possible that the employee was protecting persons or property while committing the assault and battery on [Khan], . . . [Khan] was not required to list every duty and job responsibility of an employee in the underlying complaint. Further, [Khan] was not required to adopt the exact language of Flashers’ insurance policy in drafting the underlying complaint in order to trigger [Landmark’s] duty to defend. [] . . . The incompleteness or ambiguity in the allegations does not exclude the circumstance where the employees were acting to protect persons and/or property.

Thus, the trial court concluded that the “allegations of the Complaint do not reveal, with certainty, that [Khan] would not be entitled to relief under any state of provable facts asserted in support of the Complaint.”

In contending that the court erred in so ruling, Landmark cites to several cases to support its claim that the assault and battery exclusion applies if the claimant’s injury “arose from” an assault and battery, no matter who was the actor or what was the theory of liability. The cases upon which Landmark relies do not support its arguments and are clearly distinguishable from the instant case, therefore, because the policy in each cited case excluded coverage for any claim for bodily injury arising out of any assault and/or battery, regardless of who committed the assault and/or battery. See ALEA London Ltd. v. Woodcock, 286 Ga. App. at 578 (2) (rejecting a similar argument by the appellants for the same reason).

In addition, Landmark complains that the trial court’s order “eviscerates the intended effect of the Assault and Battery Exclusion Endorsement” by requiring Landmark to assume, when determining whether it has a duty to defend an insured, “that an employee must have been acting to protect persons and/or property if a plaintiff alleges that [the] employer is vicariously liable[,]” thereby rendering the exception to the policy exclusion “meaningless.” But the trial court’s order does not require Landmark to “assume” anything. As the trial court pointed out, if Landmark was uncertain whether the language of Khan’s complaint triggered its duty to defend, it “could have defended the case under a reservation of rights, requested a stay of the underlying case, and filed a declaratory action to determine its obligation to provide a defense.” It is Landmark’s failure to exercise this reasonable option, not the trial court’s ruling in this case, that has placed Landmark in its present position.

Accordingly, the trial court properly concluded that the allegations of Khan’s personal injury complaint against Flashers, viewed in Khan’s favor, were sufficient to assert a claim against Flashers that, at least arguably, would have been covered by the provision in the insurance policy that provided coverage for an assault and/or battery by a Flashers employee or employees that was committed to protect persons and/or property. Therefore, Landmark had a duty to defend Flashers in the underlying suit, and the trial court properly denied its motion to dismiss the instant complaint.

2. Landmark argues that the trial court erred in granting Khan’s motion for partial summary judgment as to liability on Khan’s claims for breach of the duty to defend and breach of contract. Landmark contends that the trial court assumed facts not in evidence and failed to view the facts in favor of Landmark when ruling on the summary judgment motion. It also argues that the grant of partial summary judgment on the breach of contract claim was improper.

(a) The first issue lacks merit, because the grant of Khan’s partial summary judgment motion on the failure-to-defend claim was a natural and logical extension of the trial court’s denial of Landmark’s motion to dismiss that claim. In other words, the trial court properly found as a matter of law that the allegations of Khan’s underlying complaint were sufficient to trigger Landmark’s duty to defend Flashers in that suit, there was no evidence of any circumstance that might have relieved Landmark of such duty, and it is undisputed that Landmark did, in fact, fail to defend Flashers. Given these facts, the trial court properly granted partial summary judgment to Khan as to Landmark’s liability for breaching its duty to defend.

(b) Further, contrary to Landmark’s contentions, the trial court’s order clearly shows that it did not grant summary judgment to Khan on his claim for breach of contract. The issue of whether Landmark breached a contractual obligation to Flashers requiring it to pay Khan the policy limit under the insurance policy remains pending below for jury consideration. Accordingly, this argument demonstrates no error.

Judgment affirmed.

Andrews and Doyle, JJ., concur.

Decided January 25, 2011

Fields, Howell, Athans & McLaughlin, Michael J. Athans, Jeffrey A. Kershaw, for appellant.

Glenn A. Loewenthal, for appellee.

       In relevant part, the insurance policy provided as follows:
      Section I — Coverages
      Coverage A[:] Bodily Injury and Property Damage Liability
      1. Insuring Agreement
      a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply. . . .
      2. Exclusions
      This insurance does not apply to: a. Expected or Intended Injury
      “Bodily injury” or “property damage” expected or intended from the standpoint of the insured. This exclusion does not apply to “bodily injury” resulting from the use of reasonable force to protect persons or property.

      (Emphasis supplied.)
      An “Additional Insured Blanket” Endorsement modified the policy to provide as follows: A. Section II — Who is an Insured is amended to include as an additional insured the person(s) . . . shown on the SCHEDULE, but only with respect to liability for “bodily injury,” “property damage” or “personal and advertising injury” caused, in whole or in part, by:
      1. Your acts or omissions; or
      2. The acts or omissions of those acting on your behalf,

        in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above.

      (Emphasis supplied.)
      Finally, an additional endorsement entitled “Limitation — Assault and Battery” modified the policy as follows:
      1. Notwithstanding anything contained elsewhere in this policy to the contrary, this insurance shall not apply to “bodily injury,” “property damage,” or “personal and advertising injury” directly or indirectly arising from any actual or alleged “assault” and/or “battery,” except as provided in 2, below.
      2. This insurance shall apply to “bodily injury,” “property damage,” or “personal and advertising injury” arising from actual or alleged “assault” and/or “battery” committed by you or your “employees ” to protect persons and/or property. . . .

      3. For purposes of this endorsement, the following definitions shall apply:
      “Assault” means the apprehension of harmful or offensive contact between or among two or more persons by threat through words or deeds.
      “Battery” means the harmful or offensive contact between or among two or more persons.
      (Emphasis supplied.)

       OCGA § 33-4-6 (a) provides, in relevant part, as follows:
      In the event of a loss which is covered by a policy of insurance and the refusal of the insurer to pay the same within 60 days after a demand has been made by the holder of the policy and a finding has been made that such refusal was in bad faith, the insurer shall be liable to pay such holder, in addition to the loss, not more than 50 percent of the liability of the insurer for the loss or $5,000.00, whichever is greater, and all reasonable attorney’s fees for the prosecution of the action against the insurer. . ..

       See Pilz v. Monticello Ins. Co., 267 Ga. App. at 373 (concluding that, because the insurance policy excluded claims “arising out of” an assault and battery, and because that exclusion focuses on the origin of the claims, the plaintiffs’ claims for damages from the assault and battery, as well as the negligence claims that would not have arisen but for the alleged assault and battery, were not covered by the policy).

       On the issue of whether it was possible that an employee was protecting persons and property when he committed the assault and battery, the trial court also speculated that, “[i]t is more likely probable when considering that the employees of Flashers are charged with protecting persons and property as the primary component of their job responsibilities.” Although this statement is not supported by facts alleged in the complaint, it is superfluous to the court’s ultimate conclusion — that the facts as alleged in the complaint were sufficient to assert a claim that was within the insurance policy’s coverage, triggering Landmark’s duty to defend.

       Landmark also contends that, if it had no duty to defend Flashers in the underlying complaint, then Khan’s bad faith claim under OCGÁ § 33-4-6 must fail as a matter of law. Because we have rejected the contingency upon which this alleged error is based, it lacks merit. Further, the record shows that the trial court did not grant Khan partial summary judgment on the bad faith count, so the claim remains pending for jury resolution.

       “Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.” (Citations and punctuation omitted.) White v. Ga. Power Co., 265 Ga. App. 664, 664-665 (595 SE2d 353) (2004).

       In addition, the jury will determine the amount of damages resulting from Landmark’s breach of its duty to defend and, as noted in footnote 5, supra, whether Landmark acted in bad faith so as to trigger the provisions of OCGA § 33-4-6.


text:
    A10A2355.
    DOUGLAS v. THE STATE.
    (705 SE2d 712)
   BARNES, Presiding Judge.

A jury convicted Thomas Edwin Douglas of aggravated assault for discharging a firearm from within a motor vehicle toward the victim. On appeal, Douglas contends the evidence was insufficient to sustain the conviction. For the reasons that follow, we affirm.

We view the evidence on appeal in the light most favorable to the verdict, and no longer presume the defendant is innocent. Brown v. State, 293 Ga. App. 633 (667 SE2d 899) (2008). We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Id. We construe the evidence and all reasonable inferences from the evidence most strongly in favor of the jury’s verdict. Id.

Viewed in that light, the evidence at trial established that in February 2006 the victim called 911 to report an episode of road rage. According to the victim, a man in a white Ford Explorer with a chrome bumper that had a triangular sticker on it pulled out in front of him, causing him to slam on his brakes. The victim pulled up alongside the man and exchanged words with him, then saw the man pull out a handgun. The victim ran a red light, and the man fired his gun into the back of the victim’s SUV leaving bullet holes in its tailgate and rear passenger side. An officer responding to the victim’s 911 call retrieved a bullet from inside the victim’s car and a bullet fragment near the right taillight, and obtained a description of the shooter, his vehicle, and the vehicle’s bumper stickers. A former GBI firearms examiner concluded the bullet in the victim’s SUV had been fired by a .40 caliber handgun manufactured by either Glock, Heckler & Koch, or one of two other companies.

The police issued a lookout for the vehicle and driver. Two months later, an officer saw a matching vehicle and stopped Douglas for failing to maintain his lane. The officer recorded the stop on his car video camera, during which he uncovered two pistols from Douglas’s Explorer, neither of which was .40 caliber. After releasing Douglas, the officer forwarded the information and video to the investigator handling the shooting incident. The victim identified Douglas from the video as the man who fired a gun at his SUV and the police searched Douglas’s house pursuant to a warrant. While they found a total of nine handguns in Douglas’s car, house, and workshop, but none was .40 caliber.

A deputy sheriff testified that in April 2004, he responded to a motor vehicle accident involving Douglas, who had to be hospitalized. When the deputy inventoried the contents of Douglas’s car before it was towed from the scene, he recovered a Heckler & Koch (“H&K”) .40 caliber handgun and 22 rounds of ammunition. According to the sheriffs department property records, Douglas retrieved the gun the next day.

Douglas, who represented himself at trial with the assistance of counsel, testified that on the day of the incident he pulled out in front of another driver who quickly accelerated and slammed on his brakes at the last minute, mere inches from Douglas’s back bumper. Douglas sped up from 35 mph to 55 mph, then applied his brakes without actually slowing down, causing the other driver to brake hard and spin out. Douglas continued driving but the other driver, whom Douglas asserted was not the victim in this case, caught up with him and began bumping into Douglas’s SUV at 55 mph while “screaming bloody murder.” Douglas felt threatened and thought he saw a gun in the other driver’s hand, so he retrieved his H&K .40 caliber gun and put it in his lap. The other driver pulled alongside, threatened to kill him, spit on him, then fired a gun at him, Douglas said, so he returned fire three times, striking the other vehicle twice. The other man drove off, and Douglas unsuccessfully attempted to call 911 then called his lawyer. The lawyer confirmed that Douglas called him the day of the incident.

Douglas contends on appeal that the State failed to present sufficient evidence to support his aggravated assault conviction, because “by the time the State rested its case,” it had not established that he had owned or possessed a .40 caliber weapon on the date of the incident. He argues that the State proved only that he had owned a .40 caliber gun in 2004, merely establishing “guilt by association.” While the State did not uncover a .40 caliber handgun in Douglas’s possession or on his property after the shooting incident in February 2006, the victim identified Douglas as the shooter, and the fact that he had owned a .40 caliber gun in April 2004 is circumstantial evidence that he possessed such a gun in February 2006. Additionally, Douglas himself admitted that he shot at someone with a .40 caliber handgun, although he contended the other driver was not the victim who testified in this case. Accordingly, the State presented sufficient evidence for a rational trier of fact to find Douglas guilty beyond a reasonable doubt of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

Decided January 25, 2011

Mary Erickson, for appellant.

Penny A. Penn, District Attorney, for appellee.


author: Andrews, Judge.

text:
    A11A0184.
    KONECNY v. THE STATE.
    (705 SE2d 714)
   Andrews, Judge.

On appeal from his conviction for arson and other crimes, Mario Konecny argues that the trial court erred in its handling of the jury and that the evidence was insufficient as to the charges of arson and possession of a firearm during the commission of an aggravated assault. We find no error and affirm.

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

So viewed, the record shows that the victim was in a relationship with Leslie Slater, an exotic dancer, who spent most nights at the victim’s home. Konecny was a friend of the victim and a frequent visitor to his house. Before the time at issue, Slater had noted Konecny’s irrationality, including his fears that he would die of skin cancer, his belief that the victim and he had made a murder-suicide pact, and his ideas that the victim owed millions to the mob and should be killed because he (the victim) needed to collect on a life insurance policy.

Slater, Konecny, and the victim spent Thanksgiving weekend 2005 at the victim’s house smoking crack cocaine and drinking. On the Saturday after Thanksgiving, Slater and the victim were in an office there when Konecny entered and shot the victim five times. Konecny immediately told Slater that she was “next.” Over the next two days, Konecny shut himself in a closet with Slater for twelve hours, smoked crack with her, and demanded sex from her. After deciding that they had to “do something with the body,” Konecny forced Slater to help him wrap it in bed linen and put it in his truck and then ordered her to set a fire in the office. After Slater set the fire, activating the alarm, she provided Konecny with the alarm’s deactivation code and insisted on leaving with him in the truck containing the victim’s body.

Armed with the same handgun under his jacket, Konecny drove the truck to a convenience store, where Slater got out, pumped gas, went into the store, wrote the words “he’s going to kill me” on a sandwich wrapper, and gave the wrapper to a clerk. The clerk called police, who arrived, apprehended Konecny, took a statement from the now-distraught Slater, and discovered the victim’s body in the truck. Fire authorities were dispatched to the victim’s house and extinguished the fire, which had not spread past the home office.

Konecny was charged with murder, felony murder, aggravated assault, armed robbery, false imprisonment, kidnapping, battery, possession of a firearm during the commission of the aggravated assault, arson, concealing the death of another, and misdemeanor tampering with evidence (Counts 1-11). At one point during its deliberations, the jury sent out the following question: “Are arson, concealing the death of another[,] or tampering with evidence felonies?” After discussion with counsel, the trial court asked whether the parties had any objection to her “writing [the correct answer] down on this piece of paper and sending it back to the jury?” Defense counsel responded: “No, ma’am.” The trial court then wrote out a response stating that arson and concealing a death were felonies while tampering with evidence was a misdemeanor and sent it to the jury.

After returning to deliberations, the jury indicated that it had reached a verdict on five of the eleven counts. After being instructed to continue work on the remaining counts, a pregnant juror asked whether she could be excused. Soon afterward, the parties agreed to accept the jury’s partial verdict that Konecny was guilty of possession of a firearm during the commission of a felony, arson, concealing the death of another, and tampering with evidence (Counts 6, 9, 10, and 11), but not guilty of battery (Count 7). The pregnant juror was able to continue deliberations the following day. After some indications of deadlock and an Allen charge, the jury found Konecny not guilty of the remaining six charges, including aggravated assault (Count 3). His motion for new trial was denied.

1. Konecny first argues that the trial court erred when it responded to the jury’s question whether some crimes at issue were felonies. As we have noted, however, counsel affirmatively approved of the trial court’s handling of the issue. Any error was thus induced and any claim of error waived on appeal. Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536) (1986) (counsel acquiesced in trial court’s description of charge as a felony, thus waiving any argument on appeal).

2. Konecny also argues that the evidence does not support his conviction for either arson or possession of a firearm during the commission of a felony. We disagree.

Decided January 25, 2011.

Eric J. Taylor, for appellant.

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

(a) Although corroborating evidence is necessary to sustain a conviction based on an accomplice’s testimony, such evidence may be slight. Bazansilva v. State, 251 Ga. App. 608 (554 SE2d 794) (2001). Here, Slater told police that two days after shooting the victim, Konecny decided to “do something with the body” and ordered Slater to set fire to the house. The Supreme Court of Georgia has abolished the rule against inconsistent verdicts. Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986). Even if the jury acquitted Konecny of murder, the discovery of the victim’s wrapped body in Konecny’s truck corroborated Slater’s account that Konecny masterminded the arson for the purpose of destroying evidence at the crime scene. See OCGA § 16-7-60 (a) (defining arson in the first degree); Vega u. State, 285 Ga. 32 (673 SE2d 223) (2009) (evidence including that defendant added fuel to fire was sufficient to sustain conviction for first degree arson); Jackson v. Virginia, supra.

(b) As this Court has also held, a defendant’s acquittal on a predicate offense does not authorize the reversal of a conviction for possession of a firearm during the commission of that offense “ ‘because the appellate court cannot know and should not speculate why a jury acquitted on the predicate offense and convicted on the compound offense.’ ” Williams v. State, 270 Ga. App. 424, 426 (2) (606 SE2d 871) (2004), quoting King v. Waters, 278 Ga. 122, 123 (1) (598 SE2d 476) (2004). It follows that the trial court did not err when it convicted Konecny of possession of a firearm during the commission of an aggravated assault even though Konecny was acquitted of the aggravated assault. Id. at 427 (2) (affirming conviction for possession of a firearm during an armed robbery even though defendant was acquitted of an underlying armed robbery charge).

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.


author: SMITH, Presiding Judge.

text:
    A09A1105.
    WILLIAMS v. THE STATE.
    (705 SE2d 726)
   SMITH, Presiding Judge.

In Williams v. State, 288 Ga. 7 (700 SE2d 564) (2010), the Supreme Court reversed the judgment of this court in Williams v. State, 300 Ga. App. 305 (684 SE2d 430) (2009). We therefore vacate our earlier opinion and adopt the judgment of the Supreme Court as the opinion of this court.

Decided January 26, 2011.

Danielle P. Roberts, Tony L. Axam, for appellant.

Richard A. Mallard, District Attorney, Michael T. Muldrew, Keith A. McIntyre, Assistant District Attorneys, for appellee.

Judgment reversed.

Phipps, P. J., and Dillard, J., concur.


author: Doyle, Judge.

text:
    A09A1271.
    LING v. THE STATE.
    (705 SE2d 726)
    Decided January 26, 2011.

      J. Scott Key, for appellant.

      Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.
   Doyle, Judge.

In Ling v. State, the Supreme Court reversed this Court’s opinion in Ling v. State.

Accordingly, our judgment in this case is vacated, the judgment of the Supreme Court is made the judgment of this court, the trial court’s order denying Ling’s motion for new trial is vacated, and this case is remanded for further proceedings consistent with this opinion.

Judgment vacated and case remanded.

Adams and Blackwell, JJ, concur.

       288 Ga. 299 (702 SE2d 881) (2010).

       300 Ga. App. 726 (686 SE2d 356) (2009).


text:
    A10A1731.
    MURRAY v. THE STATE.
    (705 SE2d 726)
   Dillard, Judge.

In 1999, Anthony D. Murray pleaded guilty to one count of robbery, two counts of armed robbery, and two counts of aggravated assault with a deadly weapon. Two months later, Mr. Murray, proceeding pro se, timely moved to withdraw his guilty plea to the armed robbery and aggravated assault counts on the ground that he received ineffective assistance of counsel. After successfully moving for an out-of-time appeal of the denial of that motion, Murray again moved to withdraw his guilty plea to those charges. Proceeding pro se, he now appeals the denial of that motion. For the reasons noted infra, we affirm in part, vacate the two aggravated assault sentences, and remand the case to the trial court for resentencing.

The record shows that on February 20,1999, Mr. Murray and his girlfriend beat and robbed two Hispanic males in two separate but very similar incidents. In both incidents, the couple saw a Hispanic male walking along the road as they drove by and offered to give him a ride. After each man accepted this offer, Murray’s girlfriend drove him to a remote location, at which point Murray emerged from the back seat and beat the unsuspecting passenger with a steel rod, dragged his body from the vehicle, and then took whatever money was in his possession. Shortly after these robberies, the police arrested Murray and his girlfriend based on a description of their vehicle provided by the two victims.

In June 1999, a Toombs County grand jury indicted Mr. Murray on two counts of armed robbery and two counts of aggravated assault with a deadly weapon in connection with his robbery and attack of the two Hispanic males. On September 9, 1999, Murray — who was represented by counsel — pleaded guilty to all four counts in the Toombs County indictment. During this same hearing, Murray also pleaded guilty to an Emanuel County robbery charge, which alleged that earlier on the same day as the Toombs County robberies, Murray and his girlfriend beat and robbed a 65-year-old man. At the conclusion of the hearing, the trial court imposed three twenty-year sentences for the three robbery charges, to run concurrently, and two five-year sentences for the two aggravated assault charges, to run concurrently with each other but consecutively to the robbery sentences.

In November 1999, Mr. Murray filed a timely pro se motion to withdraw his guilty plea to the Toombs County charges on the ground that he received ineffective assistance of counsel. For reasons not apparent from the record, the trial court did not rule on Murray’s motion until it denied the motion without a hearing in August 2001. In November 2002, Murray filed a motion for an out-of-time appeal of the denial of his motion to withdraw his guilty plea and also filed a motion requesting that he be appointed counsel. The trial court denied the motion requesting appointment of counsel, but never explicitly ruled on the motion for an out-of-time appeal. Murray appealed, and in 2004, this Court held that he was entitled to an out-of-time appeal on his motions to withdraw his guilty plea and request for the appointment of counsel.

In October 2005, Mr. Murray — once again represented by counsel — filed a second motion to withdraw his guilty plea to the Toombs County armed-robbery and aggravated-assault charges, alleging ineffective assistance of counsel. On August 3, 2006, the trial court held a hearing on the matter, during which Murray’s plea counsel testified. At the conclusion of the hearing, the trial court reserved ruling and directed the parties to submit additional briefs. On May 22, 2007, the trial court denied Murray’s motion to withdraw his guilty plea. However, after learning in the interim that Murray had filed a motion to proceed pro se, the trial court granted that motion and also granted his pro se motion for reconsideration of the denial of the motion to withdraw his guilty plea. Subsequently, Murray filed a third motion to withdraw his guilty plea. After holding a second hearing on the matter, during which Murray’s plea counsel again testified, the trial court denied the motion. This appeal follows.

As previously noted, Mr. Murray contends that the trial court erred in denying his motion to withdraw his guilty plea on the ground that he received ineffective assistance of counsel. Specifically, he claims that his plea counsel performed deficiently in (1) failing to suppress a post-arrest statement made to the police, (2) failing to challenge the legality of the arrest warrants, (3) failing to argue for the merger of his armed robbery and aggravated assault with a deadly weapon sentences, and (4) failing to investigate the Emanuel County robbery charge.

At the outset, we note that while a guilty plea may be withdrawn anytime before sentencing, “once a sentence has been entered, a guilty plea may only be withdrawn to correct a manifest injustice[,]” and a trial court’s refusal to allow withdrawal “will not be disturbed on appeal absent a manifest abuse of discretion.” Additionally, a criminal defendant who seeks to withdraw his guilty plea due to ineffective assistance of counsel “must meet the now familiar two-part test of Strickland v. Washington — deficient performance and prejudice.” More precisely,

[a] defendant who pleads guilty and seeks to overturn his conviction because of counsel’s errors must show both that counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

Finally, in evaluating an attorney’s performance for the purpose of determining the first prong of the Strickland test, “there is a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance.” With these guiding principles in mind, we will now address each of Mr. Murray’s enumerations of error in turn.

1. Mr. Murray contends that his plea counsel performed defi-ciently in failing to suppress an inculpatory statement that he allegedly made to the police after his arrest. We find this contention to be without merit.

During the first hearing on his motion to withdraw his guilty plea, Mr. Murray testified that, after being arrested, he invoked his Miranda rights and refused to provide the Toombs County sheriff with a statement. Murray further testified that, a few days later (while still in custody), he provided a recorded inculpatory statement to the Emanuel County sheriff. Murray argues that his plea counsel performed deficiently by not moving to suppress this statement, and instead advising him that he should plead guilty because such a motion would be a waste of time. In contrast, Murray’s plea counsel testified at both of the hearings on Murray’s motion to withdraw his guilty plea that he was not aware of Murray making any inculpatory statement and that no record of such a statement existed in any of the files provided to him by the State. In addition, there was no mention of such a statement during Murray’s 1999 guilty plea hearing. Thus, despite Murray’s claim that he made an inculpatory statement that caused him to plead guilty, “the trial court had every right to disbelieve this self-serving testimony in favor of counsel’s testimony.” Accordingly, evidence supported the trial court’s finding that Murray failed to show ineffective assistance of counsel in this regard.

2. Mr. Murray further contends that his plea counsel performed deficiently in failing to challenge the legality of the arrest warrants, arguing that the affidavits supporting those warrants did not include enough information to show probable cause. We disagree.

OCGA § 17-4-41 (a) provides that

[a]n affidavit made or warrant issued for the arrest of a person who is accused of violating the penal laws of this state shall include, as nearly as practicable, the following facts: (1) The offense, including the time, date, place of occurrence, against whom the offense was committed, and a statement describing the offense; and (2) The county in which the offense was committed.

Here, the affidavit supporting the arrest warrant for Mr. Murray based on his aggravated assault of the first Toombs County victim notes that Murray “committed the offense of aggravated assault. . . between the hours of 7 PM and 9 PM, on the 20th day of February 1999[,]” and that “[t]he place of occurrence of said offense [was] Piney Green Church Rd, Toombs County, Georgia.” The affidavit further provides that Murray “did with intent to commit a felony attack the person of [J. M.] with a steel object, hitting him several times about the head and body . . . with intent to do bodily harm and without just cause or provocation.” The affidavit supporting the arrest warrant for armed robbery of this victim lists the same time, date, and place for the offense as the affidavit supporting the aggravated assault warrant, and further provides that Murray “did with intent to commit a crime on the date mentioned above rob the person of [J. M.] by use of beating him with a piece of steel and taking an undetermined amount of money from said person.” The affidavits supporting the arrest warrants for Murray’s aggravated assault and armed robbery of the second Toombs County victim were drafted in a nearly identical manner. Thus, all four of the supporting affidavits unquestionably satisfied the requirements of OCGA § 17-4-41 (a).

Relying on Pitts v. State, Mr. Murray argues that regardless of whether the affidavits supporting the arrest warrants satisfied OCGA § 17-4-41 (a), they, nevertheless, “did not supply the magistrate with sufficient information to support an independent judgment that probable cause existed for the issuance of the warrants.” Murray’s reliance on Pitts is misplaced, and his understanding of that decision’s holding is erroneous.

To begin with, the Supreme Court of Georgia has made clear that a showing of probable cause is not limited to the four corners of a supporting affidavit, so long as the issuing magistrate is supplied with “sufficient information to support [his] independent judgment that probable cause exists for the warrant.” Thus, to the extent Mr. Murray reads our decision in Pitts as holding that probable cause must be explicitly established solely by supporting affidavits, he is mistaken. Indeed, all that can be gleaned from our limited discussion of the probable cause issue in the majority opinion of Pitts is that the sole basis for the issuance of the warrants in that particular case were the attached affidavits, which “did not supply the magistrate with sufficient information to support an independent judgment that probable cause existed. . . .”

Moreover, while our majority opinion in Pitts did not specify the Court’s reasons for deeming the supporting affidavits in that case insufficient, Presiding Judge Beasley — in her special concurrence — noted that “[t]here was no information on the source of the affiant police officer’s knowledge [that a crime had been committed or that the defendant had committed it].” Here, by contrast, all four of the affidavits supporting the arrest warrants listed the two victims as witnesses to the crimes, from which the magistrate could easily infer that they were the source of the arresting officer’s information. We, therefore, conclude that — based on the information provided in the supporting affidavits — the officer in the case sub judice supplied the issuing magistrate with sufficient information to support an independent finding that probable cause existed for the issuance of the warrants. Accordingly, a challenge to the arrest warrants by Mr. Murray’s plea counsel would indeed have been futile, and his claim of ineffective assistance of counsel grounded on the failure to make such a challenge is without merit.

Moreover, even if we were to assume arguendo that the arrest warrants were not supported by probable cause, Mr. Murray has failed to demonstrate that his plea counsel’s failure to challenge the legality of these warrants prejudiced him. To begin with, even if Murray’s trial counsel had challenged the warrants and was able to suppress any inculpatory statement, there is nothing to suggest that his guilty plea resulted from such a statement. As we explained in Division 1, no reference to any inculpatory statement was made during Murray’s guilty plea hearing, and the trial court was authorized to believe the testimony of Murray’s trial counsel that he was not even aware such a statement had ever been made. Additionally, there is nothing in the record indicating that Murray’s arrest resulted in the tainted seizure of any inculpatory evidence. Murray, then, has failed to show that, but for his plea counsel’s alleged deficient performance in failing to challenge the warrants, he would not have pleaded guilty. Consequently, “[w]ithout any showing of an adverse effect, the trial court did not err in concluding that [the defendant] was afforded effective assistance of counsel.”

3. Mr. Murray also contends that his plea counsel performed deficiently in failing to argue for the merger of his armed robbery and aggravated assault convictions and sentences, arguing that the offense of armed robbery included the offense of aggravated assault as a matter of fact. And based on the facts alleged in the indictment, as well as the State’s recitation of the facts supporting these charges during Murray’s guilty plea hearing, we agree.

In considering whether the aggravated assaults with a deadly weapon are lesser included offenses of the armed robberies, 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.” In conducting this examination, we note that the Supreme Court of Georgia recently applied the “required evidence” test to facts similar to those at issue in the case sub judice, concluding that “there is no element of aggravated assault with a deadly weapon that is not contained in armed robbery . . . ,”

Here, the armed robbery counts in the indictment provided that Mr. Murray “unlawfully with intent to commit theft, did take property, to-wit: U.S. currency, from the person of [victim], by use of an offensive weapon, to-wit: a steel rod. . . .” Similarly, the aggravated assault counts provided that Murray did “unlawfully make an assault upon the person of [victim] with a steel rod, a deadly weapon, an object, which, when used offensively against a person, is likely to or actually does result in serious bodily injury, by beating the said [victim] about the head and face with said steel rod. ...”

Additionally, during Mr. Murray’s initial guilty plea hearing, the State’s prosecutor described the facts of the case as follows:

On February 20th, 1999, [the first victim] was picked up in a car driven by . . . the co-defendant with this defendant in the courtroom. Upon being picked up and given a ride to what he thought was ... a Hispanic or a Latino nightclub on that date when he got in the car, subsequently this defendant popped up in the back seat and hit this [victim] in the back of the head with what is alleged to be a steel rod of some sort. At that point he was robbed and then left out of the car. That’s where the armed robbery comes from and the aggravated assault. Again also on that same date, [the second victim], the same thing happened to him, the same basic pattern of being picked up in a car.

Given these underlying facts, as described in the indictment and during the initial guilty plea hearing, the aggravated assault with a deadly weapon charges do not require proof of a fact that the armed robbery charges do not likewise require, and Murray’s aggravated assault convictions unquestionably merged into his armed robbery convictions. Accordingly, the aggravated assault convictions and the sentences entered for them must be vacated, and the case remanded to the trial court for resentencing.

Decided January 26, 2011.

Anthony Murray, pro se.

5. Hayward Altman, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

4. Mr. Murray further contends that his plea counsel performed deficiently in failing to investigate the Emanuel County robbery charge. Specifically, he argues that his plea counsel’s inaction in this regard caused him to plead guilty to a charge that was not supported by sufficient evidence. However, while Murray timely moved to withdraw his guilty plea to the Toombs County charges, he never moved to withdraw his guilty plea to the Emanuel County charge. Indeed, during the second hearing on the motion to withdraw his guilty plea to the Toombs County charges, Murray acknowledged that he had never moved to withdraw his guilty plea to the Emanuel County charge. In fact, Murray did not allege that his plea counsel performed deficiently in his handling of the Emanuel County charge until the August 3, 2006 hearing on his motion to withdraw his guilty plea to the Toombs County charges.

It is well settled that “when the term of court has expired in which a defendant was sentenced pursuant to a guilty plea the trial court lacks jurisdiction to allow the withdrawal of the plea.” And here, Mr. Murray’s first mention of any challenge to his plea of guilty to the Emanuel County robbery charge was in 2006, which was well beyond the term of court in which he was sentenced (September 9, 1999). Consequently, Murray’s only available means to withdraw his guilty plea to the Emanuel County robbery charge is through habeas corpus proceedings.

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

Barnes, P J., and Blackwell, J., concur.

       OCGA § 16-8-41 (a).

       OCGA § 16-5-21 (a) (2).

       OCGA § 16-8-40 (a) (1).

       Both Toombs County and Emanuel County are in the Middle Circuit. OCGA § 15-6-3 (24). The Supreme Court of Georgia has held that OCGA § 15-6-23 “is sufficiently broad to authorize a superior court judge to accept a guilty plea and enter sentence in any county within his circuit.” Barksdale v. Ricketts, 233 Ga. 60, 62 (209 SE2d 631) (1974).

        Murray v. State, 265 Ga. App. 119, 121 (592 SE2d 898) (2004).

        Maddox v. State, 278 Ga. 823, 826 (4) (607 SE2d 587) (2005) (punctuation omitted).

        Hunter v. State, 294 Ga. App. 583, 584 (1) (669 SE2d 533) (2008) (punctuation omitted).

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

        Lawton v. State, 285 Ga. App. 45, 46 (645 SE2d 571) (2007).

        Rios v. State, 281 Ga. 181, 181 (2) (637 SE2d 20) (2006) (punctuation omitted).

        Hunter, 294 Ga. App. at 584 (1) (punctuation omitted).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        Pattillo v. State, 304 Ga. App. 344, 345 (696 SE2d 370) (2010); see also Coggins v. State, 275 Ga. 479, 482 (3) (569 SE2d 505) (2002) (holding that a trial court may believe counsel’s testimony over that of defendant).

        See also Dunn v. State, 234 Ga. App. 623, 624 (2) (507 SE2d 170) (1998).

        See, e.g., Skaggs-Ferrell v. State, 287 Ga. App. 872, 875-76 (2) (652 SE2d 891) (2007) (holding that warrants describing the crime satisfy OCGA § 17-4-41 (a)); Dunn, 234 Ga. App. at 624 (2) (same).

       209 Ga. App. 47 (432 SE2d 643) (1993).

        Id. at 49 (2).

        Devier v. State, 253 Ga. 604, 610 (5) (323 SE2d 150) (1984) (citation and punctuation omitted); see also Cofield v. State, 247 Ga. 98, 109-10 (274 SE2d 530) (1981) (same); Whiteley v. Warden, Wyo. State Penitentiary, 401 U. S. 560, 564 (91 SC 1031, 28 LE2d 306) (1971) (“The decisions of this Court concerning Fourth Amendment probable-cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant.”).

        Pitts, 209 Ga. App. at 49 (2).

        Id. at 51 (Beasley, E J., concurring specially).

       See, e.g., Brogdon v. State, 299 Ga. App. 547, 551 (1) (b) (683 SE2d 99) (2009) (“On appeal, we give great deference to the magistrate’s determination of probable cause, presume the validity of the affidavit supporting the search warrant, and resolve doubtful cases in favor of upholding the warrant!, and] review the contents of the affidavit in the light most favorable to upholding the trial court’s determination.”).

        See, e.g., Devier, 253 Ga. at 610 (5).

        See Smith v. State, 302 Ga. App. 128, 135 (2) (a) (690 SE2d 449) (2010) (holding that failure to file a futile motion to suppress does not constitute ineffective assistance of counsel); Jarrett v. State, 299 Ga. App. 525, 533 (7) (c) (683 SE2d 116) (2009) (same).

        Jackson v. State, 271 Ga. 705, 706 (1) (523 SE2d 871) (1999); cf. Taylor v. State, 248 Ga. App. 235,237 (2) (546 SE2d 20) (2001) (“Because the legality of Taylor’s arrest does not appear to have any relevance to the issues tried, counsel committed no error in failing to challenge the legality of the warrants.” (footnote omitted)).

       281 Ga. 211, 215-217 (636 SE2d 530) (2006).

        Lucky v. State, 286 Ga. 478, 481 (2) (689 SE2d 825) (2010).

        Long v. State, 287 Ga. 886, 889 (2) (700 SE2d 399) (2010).

       (Emphasis supplied.)

        See Long, 287 Ga. at 889 (2); cf. King v. State, 241 Ga. App. 894, 895 (1) (528 SE2d 535) (2000) (holding that “[b]ecause the violence preceded the theft and was the means by which [defendant] secured the victim’s compliance with his demand, the aggravated assault conviction merged with the armed robbery conviction”).

        Williams v. State, 301 Ga. App. 849, 850 (1) (689 SE2d 124) (2010) (punctuation omitted).

       OCGA § 15-6-3 (24) (D) provides that Toombs County Superior Court terms commence on the “[flourth Monday in February, May, August, and November” of each year. Given that Mr. Murray pleaded guilty to the Emanuel County robbery charge in Toombs County Superior Court, we look to the statute defining that court’s terms to determine whether Murray’s attempt to withdraw that guilty plea was timely.

        See Rice v. State, 277 Ga. 649, 649 (594 SE2d 335) (2004).