text:
    A14A1813.
    DOUGLAS v. THE STATE.
    (768 SE2d 526)
   Dillard, Judge.

Following a trial by jury, Benjamin Thomas Douglas was convicted on one count of public indecency. Douglas appeals his conviction, arguing that the evidence was insufficient to sustain the jury’s verdict and that the trial court erred by failing to define “public place” in its charge to the jury. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the record reflects that the witness in this case was entering a mall department store from a parking-lot entrance when he encountered Douglas, who was sitting on a bench outside of the store. From only 10-15 feet away, the witness noticed that Douglas was masturbating and could clearly see his exposed penis. When the witness approached to ask if something was wrong, Douglas hastily retreated into the parking lot as the witness followed behind while on the phone with 911, and Douglas then threatened the witness.

When Douglas drove off in a black Audi, the witness described the vehicle and its general direction to the dispatcher. Douglas was apprehended when his vehicle was stopped minutes later and he was found wearing exactly what the witness had described. The arresting officer testified that Douglas’s hands, steering wheel, and keys were covered in petroleum jelly, and a tube of petroleum jelly was found in a separate pair of pants with a waistband that was also coated in the substance. The witness positively identified Douglas shortly after the stop and again at trial. Douglas was then convicted on one count of felony public indecency. This appeal follows.

1. Douglas first contends that the evidence was insufficient to sustain the jury’s guilty verdict as to public indecency. We disagree.

At the outset, we note that on appeal from a criminal conviction, “the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict.” With this guiding principle in mind, we turn now to Douglas’s enumeration of error.

A person commits the offense of public indecency in the manner for which Douglas was charged when he or she performs, in a public place, “[a] lewd exposure of the sexual organs.” And here, the evidence established that the witness noticed Douglas masturbating on a bench outside of a mall department store and could clearly see Douglas’s exposed penis. This evidence was sufficient to establish that Douglas committed the offense of public indecency by a lewd exposure of his sexual organs.

Although Douglas takes issue with the witness’s trial testimony that he saw Douglas wearing “short pants” when he was later found wearing sweat pants, the officer testified that Douglas was apprehended wearing exactly what was described in a “be-on-the-lookout” report, and any inconsistencies in the evidence were for the jury to resolve. Accordingly, this enumeration of error lacks merit.

2. Douglas next argues that the trial court erred in failing to instruct the jury as to the definition of “public place.” Again, we disagree.

The record reflects that Douglas neither requested that the jury be instructed as to the definition of “public place” nor objected to the trial court’s failure to give this instruction. Accordingly, we review this enumeration for plain error only.

As adopted by our Supreme Court, the plain-error test “gives the appellate court discretion to reverse a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.”

OCGA § 16-1-3 defines public place as “any place where the conduct involved may reasonably be expected to be viewed by people other than members of the actor’s family or household.” Under this general definition, what constitutes a public place is a question of fact for the jury and must be proved or disproved by the evidence in each case; and we have previously sustained convictions for public indecency when a defendant has exposed himself or herself in shopping center parking lots. Moreover, even areas that are generally private locations can be transformed into public places such, that we have sustained juries’ findings of guilt.*

Decided January 26, 2015.

Cynthia W. Harrison, for appellant.

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

Here, as previously discussed, the evidence established that Douglas’s genitalia was clearly exposed while he masturbated on a bench outside of a shopping mall department store, and he was actually seen by a person unrelated to him. Under these circumstances, Douglas has not shown that the failure to define “public place” affected the outcome of the proceedings and, thus, he has failed to satisfy the burden of establishing plain error.

Accordingly, for all of the foregoing reasons, we affirm Douglas’s conviction.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330 (682 SE2d 671) (2009).

        Muse v. State, 323 Ga. App. 779, 780 (748 SE2d 136) (2013) (punctuation omitted).

       OCGA § 16-6-8 (a) (2).

        See Whitfield v. State, 259 Ga. App. 61, 61-62 (575 SE2d 899) (2002) (holding evidence was sufficient to support conviction for public indecency when, after an altercation in a strip mall parking lot, defendant “stood in front of the car, exposed his penis, shook it, and told [a woman] to suck it”); cf. Akin v. State, 249 Ga. App. 412, 413 (548 SE2d 655) (2001) (reversing conviction for public indecency when witnesses did not actually see exposed genitalia as defendant masturbated).

        Farris v. State, 290 Ga. 323, 324 (1) (720 SE2d 604) (2012) (“It is for the jury ‘to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ ”); Miller v. State, 325 Ga. App. 764, 766 (1) (754 SE2d 804) (2014) (same).

        See, e.g., Haithcock v. State, 320 Ga. App. 886, 890 (5) (740 SE2d 806) (2013) (reviewing for plain error only when counsel did not request charge or voice an objection to the failure to charge); see also OCGA § 17-8-58 (b) (“Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court’s attention as provided in subsection (a) of this Code section.”).

        Haithcock, 320 Ga. App. at 890 (5); see also Terry v. State, 291 Ga. 508, 509 (2) (731 SE2d 669) (2012) (construing the plain-error test adopted in State v. Kelly, 290 Ga. 29 (718 SE2d 232) (2011)).

       OCGA § 16-1-3 (15). See generally Singletary v. State, 310 Ga. App. 570, 570-73 (713 SE2d 698) (2011) (providing in-depth discussion of the definition of “public place” as it applies to various criminal offenses in Georgia law).

        Singletary, 310 Ga. App. at 571 (“[Ujnder this general definition, we have previously (and understandably) held that the determination of what constitutes a ‘public place’ is a question of fact for the jury.”); Greene v. State, 191 Ga. App. 149, 150 (381 SE2d 310) (1989) (“What constitutes a ‘public place’ within the meaning of our statute[ ] is a question of fact which must be proved or disproved by the evidence in each case.” (citation and punctuation omitted)).

        See Whitfield, 259 Ga. App. at 61-62 (affirming conviction when appellant exposed his genitalia to a woman in a strip mall parking lot); Watkins v. State, 237 Ga. App. 94, 94-95 (514 SE2d 244) (1999) (affirming conviction when appellant exposed his genitalia to a woman in a mall parking lot); Clark v. State, 169 Ga. App. 535, 536 (3) (313 SE2d 748) (1984) (affirming conviction when appellant urinated in shopping center parking lot); White v. State, 138 Ga. App. 470, 470-71 (226 SE2d 296) (1976) (affirming conviction when appellant committed acts of indecency in mall parking lot).

        See Greene, 191 Ga. App. at 150 (affirming conviction for public indecency when appellant exposed himself to teenage babysitters by walking around nude in their presence in his bedroom); McGee v. State, 165 Ga. App. 423, 424 (2) (299 SE2d 573) (1983) (affirming conviction for public indecency when appellant exposed himself and masturbated in front of unrelated victim in victim’s apartment).

        See Johnson v. State, 295 Ga. 615, 618 (2) (759 SE2d 837) (2014) (“Appellant has failed to show that the charging error affected the outcome of the proceedings at trial and thus has failed to satisfy the burden of proving the third and fourth prongs of the four-pronged test for establishing plain error.”); cf. Singleton v. State, 146 Ga. App. 72, 73 (2) (245 SE2d 473) (1978) (reversing conviction for public indecency when trial court did not charge the statutory definition of “public place,” but instead gave its own definition that was not the equivalent of the statutory definition, and the court’s definition “could very easily have been confusing and misleading to the jury in light of the wording of the accusation”).


source: Caselaw Access Project

author: McMillian, Judge.

license: Public Domain

text:
    A14A2286.
    WOLFE v. GEORGIA DEPARTMENT OF DRIVER SERVICES.
    (768 SE2d 528)
   McMillian, Judge.

Gregory A. Wolfe appeals an order of the Superior Court of Cobb County affirming the decision of the Georgia Department of Driver Services (the “Department”) to cancel his Georgia driver’s license. On appeal, Wolfe contends that the Department is without authority to revoke his license based on the suspension of his privilege to drive in the State of Illinois where it is undisputed that the State of Illinois never issued him a driver’s license. We disagree and affirm.

“On appeal, we review the lower court’s interpretation of a statute de novo, as statutory interpretation is a question of law.” (Citation and punctuation omitted.) Nisbet v. Davis, 327 Ga. App. 559, 567 (1) (c) (760 SE2d 179) (2014). The relevant facts are not in dispute. In 1987 and again in 1989, Wolfe was convicted of a DUI-related offense in Illinois. Wolfe has never been a resident of Illinois and has never been issued a driver’s license by Illinois.

In 1999, Wolfe moved to the State of Georgia and obtained a driver’s license in this state. In 2001, he was convicted of a DUI in Georgia. Several years later, Illinois received notice of this conviction and imposed a lifetime ban on Wolfe’s privilege to drive in that state based on an Illinois statute enacted in 1999. Following the Illinois ban, the Department cancelled Wolfe’s Georgia driver’s license pursuant to OCGA § 40-5-50, claiming that the withdrawal of Wolfe’s driving privileges in Illinois renders him ineligible for the issuance of a driver’s license in Georgia.

Wolfe appealed the cancellation of his driver’s license with the Department, which thereafter issued its final agency decision on January 16, 2013, affirming the cancellation of his license. Wolfe then appealed the final agency decision to the Superior Court of Cobb County. On April 8, 2014, the trial court affirmed the final agency decision, reasoning that the cancellation of Wolfe’s license was authorized by OCGA § 40-5-22 (c) (7) because the term “license issued by any other jurisdiction” includes the privilege to drive whether or not such person held a valid, physical license from that jurisdiction. Wolfe timely filed an application for discretionary appeal with this Court, which we granted.

In his sole enumeration of error, Wolfe argues that the trial court erred in concluding that the Department has the authority to revoke a Georgia driver’s license based on suspension of the privilege to drive in another state when the other state never issued a physical driver’s license to that person. Our analysis must start with construing the statutes setting out the Department’s authority to cancel a driver’s license. And in so doing, we apply the fundamental rule of statutory construction -— that we should construe statutes according to their terms, giving words their plain and ordinary meaning. See Lakeview Behavioral Health System, LLC v. UHS Peach ford, LP, 321 Ga. App. 820, 824 (743 SE2d 492) (2013).

OCGA § 40-5-50 authorizes the Department to cancel any driver’s license previously issued by the Department upon determining that the holder of the license was not entitled to its issuance. And, pursuant to OCGA § 40-5-52 (a), the Department “shall suspend . . . the license of any resident of this state and may suspend a nonresident’s operating privilege, upon receiving notice of a conviction in another state of an offense described in [OCGA §] 40-5-54 or [OCGA §] 40-6-391[] or any drug related offense.” In addition, OCGA § 40-5-22 (c) (7) provides that the Department “shall not issue any driver’s license to nor renew the driver’s license of any person . . . [w]hose license issued by any other jurisdiction is suspended or revoked by such other jurisdiction during the period such license is suspended or revoked by such other jurisdiction.”

Our Supreme Court has upheld the constitutionality of this statutory scheme, emphasizing that “there is a strong governmental interest in protecting the public from drivers whose licenses have been revoked for DUI offenses.” (Citation and punctuation omitted.) Roberts v. Burgess, 279 Ga. 486, 487 (1) (614 SE2d 25) (2005). The Supreme Court also explained that “there is a strong governmental interest in preventing ‘license shopping’by nonresidents with revoked out-of-state licenses trying to obtain Georgia licenses before their revocation period has ended.” (Citation and punctuation omitted.) Id. at 487-488. Nor is Georgia’s statutory scheme unique. At the time Roberts was decided, the Supreme Court recognized that a similar statutory scheme had been adopted in more than 40 states “in an effort to give effect to the sanctions imposed by each state as it sees fit.” Id. at 488.

Nonetheless, Wolfe argues that because Illinois never “issued” him a “license,” the Department has no authority to revoke his Georgia license because OCGA § 40-5-22 (c) (7) only applies to a license “issued” and subsequently revoked by another state. However, it is incumbent upon this Court to

endeavor to give each part of the statute meaning and avoid constructions that make some language mere surplusage or meaningless. Furthermore, a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter . . . are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.

(Citation omitted.) Aimwell, Inc. v. McLendon Enterprises, Inc., 318 Ga. App. 394, 397 (1) (734 SE2d 84) (2012).

The plain language of the relevant statutes resolves this question. Under Title 40 of the Georgia Code, a license is defined as “any driver’s license or any other license or permit to operate a motor vehicle issued under, or granted by, the laws of this state, including... [t]he privilege of any person to drive a motor vehicle whether or not such person holds a valid license(Emphasis supplied.) OCGA § 40-1-1 (24) (B). Applying this definition to OCGA § 40-5-22 (c) (7), it is clear that it applies not only to the revocation of a physical driver’s license issued by another state, but also to any privilege to drive in that state, whether or not a valid license was ever held by the driver. Therefore, we find that the statutory framework established by our legislature is not ambiguous, and where Illinois has revoked Wolfe’s privilege to drive in Illinois, a privilege it had previously issued or granted to him, the Department is authorized under the Act to cancel Wolfe’s Georgia driver’s license. See OCGA §§ 40-5-50; 40-5-22 (c) (7).

Wolfe contends that under Roberts, OCGA § 40-5-22 (c) (7) can only be constitutionally applied to those who subjected themselves to the licensing laws and regulations of the other state by applying for a driver’s license. We reject that premise. Whenever a driver avails himself of the roadways of a particular state, he is obligated to abide by the applicable rules and regulations of that state. See Kane v. New Jersey, 242 U.S. 160, 167 (37 SCt 30, 61 LE 222) (1916) (“The power of a State to regulate the use of motor vehicles on its highways . . . extends to nonresidents as well as to residents. It includes the right to exact reasonable compensation for special facilities afforded as well as reasonable provisions to ensure safety.”). Although Wolfe never formally applied for a physical Illinois driver’s license, he voluntarily took advantage of Illinois’s grant of the privilege to drive within its borders and, on at least two occasions, violated Illinois’s laws and regulations regarding the operation of a motor vehicle. Thus, Wolfe subjected himself to the laws and regulations of Illinois. See Roberts, 279 Ga. at 488 (1) (“Florida validly suspended appellant’s license according to its statutes and regulations. Neither Georgia nor Florida is precluded from taking into account offenses that occurred in another state in deciding whether to issue or revoke an already issued operator’s license.”) (citation and punctuation omitted). Accordingly, the trial court did not err in affirming the Department’s revocation of Wolfe’s Georgia driver’s license.

Decided January 26, 2015.

Marko L. Burgar, for appellant.

Samuel S. Olens, Attorney General, Joseph J. Drolet, Senior Assistant Attorney General, Amy M. Radley, Assistant Attorney General, for appellee.

Judgment affirmed.

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

       Illinois driver licensing law provides that its Secretary of State “is authorized to suspend or revoke ... the privilege of a nonresident to drive a motor vehicle in pilinois] upon receiving notice of the conviction of such person in another State of an offense therein which, if committed in pilinois] would he grounds for the suspension or revocation of the license of a driver.” 625 ILCS 5/6-203 (2014). In addition,
      [t]he privilege of driving a motor vehicle on highways of pilinois] given to a nonresident hereunder and the privilege which an unlicensed person might have to obtain a license under this Act shall be subject to suspension or revocation by the Secretary of State in like manner and for like cause as a drivers license issued hereunder may he suspended or revoked.
      625 ILCS 5/6-202 (a) (2014).

       OCGA § 40-6-391 proscribes driving while impaired by alcohol, drugs, or toxic vapors.

       When the Department suspends the license of a Georgia resident for conduct that occurred in another state, “it shall review the suspension at least once every five years and shall reinstate the license if the department determines that the suspension is no longer warranted and the person would otherwise be eligible for a license.” OCGA § 40-5-52 (d). It is undisputed that Wolfe is otherwise eligible for a Georgia driver’s license.


author: McFADDEN, Judge.

text:
    A14A2262.
    BRENDE v. BRENDE.
    (768 SE2d 531)
   McFADDEN, Judge.

This is an interlocutory appeal from an order in a Georgia divorce proceeding in which the trial court, among other things, ruled that he lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), OCGA § 19-9-40 et seq., to decide the custody of an unborn child. The trial court assumed that the child would be born in Oregon and therefore deemed Oregon the child’s home state. See OCGA §§ 19-9-41 (7) (defining “home state” of child); 19-9-61 (a) (providing that child’s home state is primary factor in establishing court’s jurisdiction over initial child custody determination). We vacate the jurisdictional ruling, because the trial court’s anticipatory determination of the unborn child’s home state was advisory, and we remand the case to the trial court to reconsider his jurisdiction of the child custody issues in the divorce given the existing circumstances in this case. (We do not address the other ruling in the trial court’s order, because that ruling has not been challenged on appeal.)

1. Procedural history.

The record shows that on March 6,2014, Matthew James Brende (the father) filed a complaint for divorce from Qynne Marie Brende (the mother). Among other things, the father alleged that he and the mother both were Georgia residents, that the mother had left Georgia one month earlier and currently was living in Oregon, that the mother was pregnant, and that the child was expected to be born in mid-May 2014. As part of the divorce proceedings, the father sought sole legal and physical custody of the unborn child.

In her answer, the mother challenged the trial court’s jurisdiction over the custody determination. After holding a hearing and receiving memoranda of law on the jurisdiction issue, the trial court, on May 1, 2014, ruled that “assuming the parties’ child is born in Oregon as anticipated, Oregon will have exclusive jurisdiction over the issue of custody.” We granted the father’s request for interlocutory review of this ruling.

2. Events that occurred after the trial court’s May 1 ruling.

As an initial matter, we note that the father has made representations in the statement of facts section of his brief about events after entry of the ruling on appeal. Specifically, he represents that a female child was born to the mother in Oregon after the trial court’s ruling and that, upon the child’s birth, Oregon’s Department of Child Protective Services took custody of her and subsequently placed her in the father’s custody. Evidence of these events was not — indeed could not have been — before the trial court at the time of his ruling, and the mother correctly notes that we cannot consider these events in deciding whether the trial court erred in his May 1 ruling. “It is an ancient and honored tenet of law that we do not take evidence from the briefs of parties, we do not get evidence from outside the record, and we do not accept assertions of fact or evidence which were not before the trial court.” Farmer v. State, 216 Ga. App. 515, 522 (1) (455 SE2d 297) (1995) (on motion for reconsideration) (citing Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347, 351 (411 SE2d 75) (1991)). Nevertheless, as indicated in Division 4, infra, the possibility that events subsequent to his order could affect the trial court’s jurisdiction over the custody issues underlies our decision to remand this case for further consideration by the trial court.

3. The trial court’s May 1 jurisdictional ruling must be vacated because it was an advisory ruling.

The trial court recognized that he “arguably should defer deciding whether jurisdiction to determine custody is present, since there is no child whose custody is in dispute.” He nevertheless acquiesced to the parties’ request that he “decide the issue to enable them to determine what course of action to pursue in the future” and approached the issue as a request for declaratory relief. But a “[declaratory judgment will not be rendered based on a possible or probable future contingency. Entry of a declaratory judgment under such circumstances is an erroneous advisory opinion which rules in a party’s favor as to future litigation over the subject matter and must be vacated.” Baker v. City of Marietta, 271 Ga. 210, 215 (1) (518 SE2d 879) (1999) (citations and punctuation omitted). See also, e.g., Bethel v. Fleming, 310 Ga. App. 717, 724 (3) (713 SE2d 900) (2011) (trial court’s holding that if magistrate judges failed to comply with its ruling, they could be subject to complaint to Judicial Qualifications Commission was erroneous advisory opinion because it was based on future contingency), rev’d on other grounds sub nom. Leitch v. Fleming, 291 Ga. 669 (732 SE2d 401) (2012); Bailey v. City of Atlanta, 296 Ga. App. 679, 682-683 (1) (675 SE2d 564) (2009) (plaintiff was not entitled to declaratory judgment based on possibility that in future city would install sidewalks on road). Because the trial court’s jurisdictional ruling was based on a future contingency — the child’s birth in a state other than Georgia — it was an advisory opinion and, accordingly, we vacate that ruling.

4. The trial court should reconsider his jurisdiction under the current state of facts.

The father argues that, at the time of the trial court’s May 1 ruling, the trial court could have and should have exercised jurisdiction over the custody issues, but the mother argues that a court cannot have jurisdiction over the custody of an unborn child under the UCCJEA. This apparently presents an issue of first impression in Georgia, although some other jurisdictions have held that the UCCJEA does not authorize a court to exercise jurisdiction over an unborn child. See, e.g., In re Sarah Ashton McK. v. Samuel Bode M., 111 AD3d 474, 475 (N.Y. 2013); Waltenburg v. Waltenburg, 270 SW3d 308, 316-318 (Tex. App. 2008). But if the child has now been born, as the father alleges and the mother does not dispute, then we would be issuing an advisory opinion if we addressed the trial court’s jurisdiction over the custody of an unborn child. See generally Huff v. Harpagon Co., 286 Ga. 809, 811 (2) (692 SE2d 336) (2010) (Georgia appellate courts cannot render advisory opinions). Instead of ruling on that issue, we remand the case for the trial court to reconsider his jurisdiction in light of the current state of facts regarding the child’s birth and other subsequent events relevant to a court’s exercise of jurisdiction under the UCCJEA. See, e.g., OCGA §§ 19-9-41 (7) (including in definition of child’s “home state” a requirement that child under six months of age have lived in the state from birth with a parent or person acting as a parent); 19-9-64 (authorizing exercise of temporary emergency jurisdiction over child custody where necessary to protect child and addressing procedure going forward when child also is subject of child custody proceeding brought in another state).

Judgment vacated in part and case remanded with direction.

Andrews, P. J., concurs. Ray, J., concurs in judgment only.

Decided January 27, 2015.

Garnett Harrison, Jacqueline N. Fortier, for appellant.

Lee S. Ashmore, for appellee.


author: Miller, Judge.

text:
    A14A1852.
    GENE v. THE STATE.
    (768 SE2d 533)
   Miller, Judge.

Following a jury trial, Calvin Louis Gene was convicted of robbery by sudden snatching (OCGA § 16-8-40 (a) (3)) and sentenced to fifteen years with ten years in confinement. Gene appeals from the denial of his motion for new trial, contending that the trial court erred in failing to instruct the jury on the lesser charge of theft by taking. For the reasons that follow, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on the morning of Saturday, September 4, 2010, Gene and the victim met at a tire shop in Lithia Springs. The victim invited Gene to her apartment in Douglasville later that night.

Gene arrived at the victim’s apartment, and she brought Gene into her bedroom where they smoked marijuana. About ten minutes after Gene arrived, he left the victim’s apartment and stepped outside. According to the victim, when Gene came back inside her apartment, he was holding a black handgun, and he was angry. The victim testified that Gene took her phone and turned it off and then pointed the gun at her and forced her to have sex with him.

The victim further testified that Gene forced her to kneel by her bed on the floor at gunpoint, demanded money, and proceeded to search her bedroom, looking through her closet, pocketbook and wallet. Gene took $20 from her purse and took her cell phone off her dresser.

In an attempt to get Gene out of her home, the victim reminded him that she had visitors arriving shortly. Gene told the victim to stay in place and “start counting,” and he walked backward out of the apartment with the gun pointed at her. After Gene left, the victim walked to her neighbor’s home and called 911. During the 911 call, the victim reported that her cell phone and $20 had been stolen.

Responding to the 911 call, officers with the Douglas County Police Department arrived at the victim’s apartment after midnight and interviewed her. The victim told a responding officer that she did not realize that her phone had been taken until after Gene left her apartment, and she provided detectives with the serial number of her missing cell phone.

Later that same day, Gene was shot in DeKalb County after he allegedly raped and robbed two women there. In the course of the investigation into that incident, Gene’s girlfriend gave DeKalb County police officers a cell phone from Gene’s car. Several months later, Douglas County police detectives were able to match the serial number on the victim’s cell phone to the phone Gene’s girlfriend turned over to DeKalb County police. After Gene was arrested, the victim identified him as her attacker.

Gene was indicted for rape and armed robbery based on the taking of the victim’s phone and $20. Gene requested a jury instruction on theft as a lesser included offense. The trial court refused Gene’s request but instructed the jury on robbery by sudden snatching, in addition to its instructions on armed robbery.

In his sole enumeration of error, Gene contends that the trial court erred in failing to instruct the jury on theft. We disagree.

The complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the [Sjtate’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.

(Citation omitted.) Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994).

Under OCGA § 16-8-2, a person commits the offense of theft by taking when he unlawfully takes any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated. In contrast, under OCGA § 16-8-40 (a) (3), a person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by sudden snatching. Robbery by sudden snatching differs from theft by taking because the robbery offense requires proof of two additional elements: the thief must take the property from the victim’s immediate presence, and the victim must be conscious of the theft at the time it is committed, in other words, before the taking is complete.

Decided January 28, 2015.

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

Brian K. Fortner, District Attorney, Rachel D. Ackley, Assistant District Attorney, for appellee.

(Citation and punctuation omitted.) Bettis v. State, 285 Ga. App. 643, 645-646 (3) (647 SE2d 340) (2007); see also Moore v. State, 265 Ga. App. 511, 512 (1) (594 SE2d 734) (2004) (victim’s consciousness that something is being taken is an element of robbery by sudden snatching).

At trial, Gene testified that the victim was a prostitute and that he agreed to pay her $40 for sex, but after they had sex she demanded $80, so he took her phone and the money he had given her. It is undisputed that Gene took both the money and the phone from the victim’s personal presence. Although there was conflicting evidence as to whether the victim was conscious of Gene taking her phone at the time that he took it, the victim clearly knew that Gene took her money before the taking was complete. The victim reported to the responding officer that Gene took the money directly from her, and Gene’s own testimony also shows that the victim was upset about Gene taking the money during the robbery. Accordingly, the undisputed evidence shows that, at least as to the money, the victim was conscious of the theft at the time it was committed, as required to prove robbery by sudden snatching, and there was no error in failing to instruct the jury on the lesser offense. See Bryant v. State, 213 Ga. App. 301, 303 (444 SE2d 391) (1994) (no need to instruct on theft where evidence showed robbery because victim was aware of the taking).

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

       Gene was originally charged with rape (OCGA § 16-6-1 (a) (1)) and armed robbery (OCGA § 16-8-41 (a)). The jury acquitted Gene of rape and found him guilty of robbery by sudden snatching as a lesser included offense of armed robbery.

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).


author: BARNES, Presiding Judge.

text:
    A14A2019.
    HARPER v. THE STATE.
    (768 SE2d 755)
   BARNES, Presiding Judge.

A jury convicted Joel Ledarius Harper of two counts of armed robbery and one count of aggravated assault. Following the denial of his motion for new trial, Harper filed this appeal, arguing that the evidence was insufficient, the trial court erred in allowing the State to present similar transaction evidence, and that his trial counsel was ineffective. For the reasons that follow, we affirm Harper’s convictions.

When evaluating the sufficiency of evidence, the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury’s assessment of the weight and credibility of the evidence.

Hayes v. State, 292 Ga. 506 (739 SE2d 313) (2013).

So viewed, the evidence showed that a South Carolina man (the buyer) called his friend in Atlanta and asked him to set up a deal for the buyer to purchase several pounds of marijuana for $1,000 per pound. The friend contacted a middleman, who eventually brokered a deal with a seller he knew as “Money Mike.” The buyer drove to his friend’s house and counted out the money needed to complete the deal; then the friend drove the buyer to meet the middleman at a fast-food restaurant in the general location Money Mike had identified as the site of the deal. The middleman then called Money Mike, who gave him the address of a residence nearby, and the friend and the buyer followed the middleman in a separate car to that location.

The friend stayed in the car while the buyer and the middleman entered the house and closed the front door. The middleman walked in first, with the buyer following behind him. The middleman testified, “[T]he next thing I know, the gun is pointed in my face.” The gunman, whom the middleman identified in a photographic lineup later that day as Harper, pulled out a second gun and ordered the middleman and the buyer to the ground, threatening to shoot the men and demanding money. The buyer and the middleman threw the contents of their pockets on the ground, including the middleman’s wallet, ID, and cell phone. Harper insisted that there should be more money and said, “Go get the rest of the money.” The middleman testified that he thought Harper meant that only one of them should go, but both men saw an opportunity to get away so they both bolted for the door. The middleman reached the door first and heard a shot behind him, but kept running until he reached a store where he called 911.

The friend testified that he was waiting in his car when suddenly the buyer burst out of the door and ran off, followed by a gunman with an automatic weapon who fired two shots at the buyer. The friend ducked down, slid over to the driver’s side of the car, and drove off to look for the buyer, but could not locate him and eventually ended up calling 911 from the same store the middleman did. The friend accused the middleman of setting up the assault and robbery, and feared the buyer was dead, but a responding officer said they had located the buyer, who had lost a lot of blood from a gunshot wound in his thigh but would be okay.

The responding officers initially arrested both the middleman and the friend and interviewed them after they were advised of their Miranda rights. They had found the middleman’s ID and cell phone on the floor in the house, and the middleman gave them permission to search his phone and obtain the number he had been calling to set up the drug deal. The middleman’s cell phone showed that he had called a particular phone number six times between 1:36 p.m. and 2:29 p.m. on the day of the assault and robbery.

A detective entered the number culled from the middleman’s phone into a database of police reports and found a 2008 accident report which identified the number as belonging to a woman who turned out to be Harper’s sister. The detective then entered the sister’s address into the same database and discovered several police reports that identified the address as belonging to Joel Harper. The detective then obtained a photograph of Harper and placed it into a photographic lineup. He showed the lineup to the middleman, who identified Harper as the man who robbed and shot at him and the buyer. The detective obtained an arrest warrant for Harper, who had two cell phones on him when he was arrested nine days after the robbery and aggravated assaults. One of the cell phones rang when the detective called the number the middleman had identified as the one he had called to set up the drug deal.

1. Harper argues that the evidence against him was insufficient to sustain the convictions because at trial the middleman recanted his identification of Harper in the photographic lineup as the shooter and no other witness identified him. The State did not ask the middleman to identify Harper at trial, but instead simply confirmed that he had identified Harper’s photograph from the lineup on the day of the crime as the man who robbed and shot at him. While admitting that he had not been forced to identify anyone in the lineup, the middleman testified on direct that he had been very nervous at the time, and during cross-examination he testified that he could not say that Harper was the man who had pulled a gun on him, because Harper did not “have the features.” Further, the buyer who was shot did not testify, the State explaining outside the presence of the jury that the buyer had “refused to get on the bus and come from South Carolina.” Finally, the friend who had waited in the car while the buyer and the middleman went into the house testified that he told police he did not get a good look at the gunman, and no one asked him at trial to identify Harper as the gunman.

Despite the middleman’s recantation of his identification of Harper at trial, his initial identification of Harper in the photographic lineup, along with the evidence tying Harper to the cell phone used to set up the drug deal, were sufficient. See Gibson v. State, 272 Ga. 801, 804 (4) (537 SE2d 72) (2000) (“[Testimony from a police officer who conducted a lineup identification as to the identity of persons picked out of such a lineup is admissible.”); In the Interest of M. D. L., 271 Ga. App. 738, 740 (1) (b) (610 SE2d 687) (2005) (witness’s prior identification of defendant as perpetrator of crime constitutes substantive evidence despite recantation at trial). “The evidence of record, construed favorably to the jury’s verdict, was sufficient to enable a rational trier of fact to conclude that appellant was guilty of [two counts of] armed robbery” and aggravated assault. Guyton v. State, 272 Ga. 529, 530 (1) (531 SE2d 94) (2000).

2. Harper asserts that the trial court erred in allowing the State to submit similar transaction evidence of his prior guilty plea to two counts of robbery because the State failed to prove a sufficient similarity between the prior crime and the current one to show bent of mind or identification.

[B]efore [similar transaction evidence] is admissible, the trial court must determine that the State has affirmatively shown that: (1) the State seeks to admit evidence of the independent offenses or acts for an appropriate purpose; (2) there is sufficient evidence that the accused committed the independent offenses or acts; and (3) there is sufficient connection or similarity between the independent offenses or acts and the crimes charged so that proof of the former tends to prove the latter.

(Citation and punctuation omitted.) Reed v. State, 291 Ga. 10, 12 (3) (727 SE2d 112) (2012). We accept the trial court’s factual findings unless they are clearly erroneous, and review the trial court’s evi-dentiary rulings for abuse of discretion. Id. at 14 (3).

During the pre-trial hearing on the State’s motion to admit similar transaction evidence, the State proffered that Harper’s co-defendant in the similar transaction would testify that Harper had called the co-defendant to ask if he had a gun because he wanted to commit a robbery. The State further proffered that the co-defendant did have a gun, that Harper picked him up in Harper’s father’s car, and that the two of them robbed two house painters of $700 cash, wallets, a cell phone, and keys. The victims obtained the license number of the robbers’ car, which the police traced to Harper’s father, which led to the identification of Harper and the co-defendant. The State offered the evidence to show Harper’s bent of mind and mode of operation, and at the proffer the State said it did not intend to introduce the similar transaction to show identity because the middleman in the current case had identified Harper in the photographic lineup. The trial court ruled preliminarily that if the co-defendant in the similar transaction testified at trial that the prior robbery was Harper’s idea and that Harper had asked the co-defendant if he still had his gun, then the prior act was “similar enough for the State to attempt to introduce it to show bent of mind and possibly identification if that becomes an issue in the case.”

During the course of the trial, as previously noted, the middleman recanted his identification of Harper as the gunman. After he testified, the trial court asked the State to inform the court before calling the similar transaction witness so it could give the limiting charge beforehand, and asked, “[Y]our purpose was method of operation and, I guess, identity?” The State responded, “Identity, mode of operation, yes.” At that point, the trial court’s ruling that the similar transaction evidence was possibly admissible to prove identification changed to a ruling that the evidence was certainly admissible to provide identification. Harper did not object.

Seven more witnesses testified, and before the State called Harper’s co-defendant in the previous crime, Larry Dixon, to testify, the trial court and the parties held a discussion off the record. The trial court then gave a limiting charge to the jury that the law provided that evidence of other alleged acts by the defendant that were sufficiently similar or connected and related to the offenses for which the defendant was on trial could be considered “for the limited purpose of showing, if it does, the identity of the perpetrator or the method of operation in the crimes charged in the case that’s now on trial.” The court then reminded the jury that Harper was on trial only for the indicted offenses, and that before it could consider the other alleged acts, it should first determine whether Harper committed those acts, and if so, whether the prior act was sufficiently similar and related to the crimes charged such that proof of the former tended to prove the latter. Harper made no objection.

When called to the stand, however, Dixon only admitted knowing Harper and denied remembering any details of the crime itself or the incriminating statement he had given to police, explaining that he never read the statement and was “drunk and high” when he signed it out of fear he would spend the rest of his life in prison.

Outside of the jury’s presence, the State asked permission to call the detective in charge of the similar transaction case to impeach Dixon regarding his prior inconsistent statement. After conferring about the case law, the trial court ruled that the State could call the detective to testify about Dixon’s prior inconsistent statement. The detective then testified that Dixon told him he had a gun, that Harper had driven his father’s car to the crime scene, and that the two of them had robbed two men of their cell phones, wallets, and money. The State also introduced a certified copy of Harper’s conviction for two counts of robbery.

(a) While Harper argues on appeal that the trial court erred in finding that the prior crimes were sufficiently similar to be admissible, “[t]he independent crime and the charged offense need not be identical in character if there is a sufficient connection between them.” Williams v. State, 295 Ga. App. 249, 251 (1) (671 SE2d 268) (2008). The proper focus is the similarities between the crimes, not the differences. Phillips v. State, 287 Ga. 560, 564 (4) (697 SE2d 818) (2010). In this case, both the prior crimes and the current one involved an armed robbery with a handgun, in which Harper demanded that multiple victims give him their money, and in both instances the victims’ cash, wallets, and cell phones were taken. We find no abuse of discretion in the trial court’s decision to allow the similar transaction evidence.

(b) Harper also argues that the crimes were not sufficiently similar to prove identity.

A much greater degree of similarity between the charged crime and the uncharged crime is required when the evidence of the other crime is introduced to prove identity than when it is introduced to prove a state of mind. Much more is demanded than the mere repeated commission of crimes of the same class, such as repeated murders, robberies, or rapes. The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.

(Citations and punctuation omitted.) Cole v. State, 216 Ga. App. 68, 70 (1) (453 SE2d 495) (1994).

Prior to our Supreme Court’s ruling in Whitehead v. State, 287 Ga. 242, 245-249 (2) (695 SE2d 255) (2010), a defendant was required to renew his objection to a similar transaction ruling at trial to preserve it for appellate review, even if he had previously objected during the required pre-trial hearing on admissibility. In Whitehead, the Supreme Court noted that, while standard practice had long required a party to make and obtain a ruling on an objection to evidence before or as the evidence was admitted to preserve the objection for appeal, only as to similar transactions was a party required to renew before a jury “an objection that was made and ruled on at a preliminary hearing held to determine the admissibility of that very evidence.” Id. at 247 (2). Seeing a trap for the unwary, the court abandoned the “unique repetitive objection rule for similar transaction evidence” and held that a defendant was no longer required “to raise and have overruled before the jury the very same objection to similar transaction evidence that already was raised and ruled on by the trial court.” Id. at 248-249 (2).

In this case, however, the trial court did not issue a final ruling on the admissibility of the similar transaction evidence to prove identity at the pre-trial hearing, stating only that the evidence might “possibly” be admissible to prove identity. At that point, the State did not anticipate that it would need to introduce the similar transaction evidence to prove identity, given that the middleman had previously identified Harper in a photographic lineup as the gunman. It was only after the middleman recanted his identification that the State then sought, upon the trial court’s prompting, to use the similar transaction evidence to prove identity, and Harper did not object. Thus the analysis in Whitehead, 287 Ga. at 248-249 (2), that to preserve the issue for appellate review, the defendant need not renew an objection to the admission of evidence that the trial court had previously ruled admissible, does not apply in this case, because the trial court did not issue a final ruling on the identity issue at the pre-trial hearing, and the basis for the State’s tender of the similar transaction evidence changed mid-trial when the middleman recanted his identification of Harper as the gunman. At that point, when the trial court issued its final ruling on the matter, Harper was required to object to the use of the evidence to prove identity, and he did not do so, thus waiving his right to argue the issue on appeal.

(c) Harper also contends, correctly, that the trial court erred in admitting evidence that Harper had entered a guilty plea to two counts of robbery in the similar transaction because Harper had been granted First Offender status and thus had not been “convicted.” See Davis v. State, 269 Ga. 276, 278-279 (2) (496 SE2d 699) (1998). And while the trial court subsequently revoked Harper’s First Offender status and resentenced him on the robbery charges, it did so after his trial on the current charges ended. But “a prior bad act need not result in a criminal conviction in order to be used as a similar transaction,” because the critical element is the similarity of the facts rather than the adjudication of any charges brought as a result of the prior act. Id. at 278 (2). See Tilley v. State, 197 Ga. App. 97, 99 (2) (397 SE2d 506) (1990) (first offender disposition and discharge of the earlier accusation did not preclude admitting evidence of underlying conduct as a similar transaction). Thus, while it was error to admit the evidence that appellant had entered a guilty plea to the earlier charge as a First Offender, that admission is not reversible error in light of the other evidence incriminating Harper in the prior crimes. See Davis, 269 Ga. at 279 (2).

3. Harper contends his trial counsel was ineffective in several respects. To prevail on a claim of ineffective assistance of counsel, Harper must show both that trial counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Aaron v. State, 275 Ga. App. 269, 271 (4) (620 SE2d 499) (2005).

(a) Harper first contends his counsel was ineffective for failing to call an alibi witness at trial, who testified at the motion for new trial hearing that Harper had been working at a car wash and had washed her car on the day of the robbery and assault, around the same time. However, trial counsel testified that he and Harper discussed the fact that Harper needed an alibi witness and that counsel had attempted to contact every name and telephone number Harper or his girlfriend had given him. A trial counsel is not ineffective for failing to call an alibi witness the defendant never identified. Palmer v. State, 274 Ga. 796, 797 (5) (560 SE2d 11) (2002). Harper has not established that his trial counsel knew or should have known about the witness who testified at the hearing, and therefore has not established that his trial counsel’s performance was deficient in this regard.

(b) Harper next contends his trial counsel was ineffective for failing to call an eyewitness neighbor to testify. The neighbor testified at the motion for new trial hearing that he was in his house when he heard shots, and when he looked outside he saw a tall, dark-skinned man run out of the house with a duffel bag, get into a car, and leave. He was certain that the man he saw run out of the house was not Harper, because Harper was too short and his complexion was too light. Trial counsel testified that he had spoken with the witness, who became angry and unresponsive after counsel subpoenaed him to testify. When the witness did not come to court, trial counsel made a strategic decision after the State rested not to force the witness to court based on his lack of cooperation and because he thought the State’s case was weak. The trial court did not abuse its discretion in determining that this strategic decision did not constitute ineffective assistance of counsel. Sharif v. State, 272 Ga. App. 660, 663 (5) (613 SE2d 176) (2005) (“Tactical or strategic decisions such as the failure to call certain witnesses do not equate with ineffective assistance of counsel.”).

Decided January 28, 2015

Ross & Pines, Noah H. Pines, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

(c) Finally, Harper claims his trial counsel was ineffective for failing to file a motion to suppress the middleman’s pre-trial identification of Harper in the photographic lineup and for failing to impeach the middleman with evidence of his prior felony conviction. First, Harper has identified no grounds that would have supported a motion to suppress, such as an impermissibly suggestive lineup. See, e.g., McCowan v. State, 325 Ga. App. 509, 511 (753 SE2d 775) (2014) (addressing grounds for suppressing pre-trial identification).

Second, trial counsel explained that he chose not to impeach the middleman because his trial testimony that Harper was not the perpetrator was “very beneficial” to the defense. The middleman was the State’s key witness, and trial counsel wanted the jury to believe the middleman’s trial testimony that Harper did not do it rather than his pre-trial identification of Harper as the gunman.

Informed strategic decisions do not amount to inadequacy. The fact that appellant and his present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that appellant received representation amounting to ineffective assistance of counsel.

(Citation and punctuation omitted.) McKenzie v. State, 284 Ga. 342, 348 (4) (c) (667 SE2d 43) (2008).

Trial counsel’s decision to focus on the middleman’s recantation of his pre-trial identification of Harper was clearly strategic, and the trial court did not err in finding that counsel’s performance was not deficient.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       Effective January 1, 2013, Georgia’s revised Evidence Code no longer allowed the State to introduce similar transactions to show a defendant’s bent of mind or course of conduct. OCGA § 24-4-404 (b); Johnson v. State, 292 Ga. 22, 25 (2), n. 3 (733 SE2d 736) (2012). This case was tried in 2012.


author: ANDREWS, Presiding Judge.

text:
    A14A2313.
    HARRISON v. THE STATE.
    (768 SE2d 762)
   ANDREWS, Presiding Judge.

After the trial court granted the State’s petition to revoke Richard Harrison’s probation and revoked his probation in full for a period greater than eight years, this Court granted Harrison’s application for discretionary appeal. Harrison argues on appeal that the trial court erred by revoking his probation for a period of time exceeding that authorized by OCGA § 42-8-34.1 (d) and by revoking his probation for behavior that did not violate a valid condition of probation. We conclude that under OCGA § 42-8-34.1 (d), the trial court was not authorized to revoke Harrison’s probation for a period in excess of five years, and we therefore vacate the trial court’s revocation order and remand for resentencing.

“A court may not revoke any part of any probated or suspended sentence unless the defendant admits the violation as alleged or unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged.” OCGA § 42-8-34.1 (b). “Generally, this court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court. However, we review questions of law de novo.” (Citations and punctuation omitted.) Dillard v. State, 319 Ga. App. 299 (735 SE2d 297) (2012).

The record shows that in January 2009, Harrison entered a plea of guilty under North Carolina v. Alford, 400 U. S. 25 (91 SCt 160, 27 LE2d 162) (1970), to one count of child molestation. The trial court sentenced Harrison to five years incarceration and ten years probation. The trial court’s sentence, filed January 5, 2009, contained a list of general conditions of probation, and a box appeared next to each condition so that the trial court could indicate with an “x” or some other mark which of the conditions applied. The first general condition on the list was that “[t]he defendant shall violate no laws of any governmental unit.” The trial court did not mark that condition as applicable. On September 26, 2012, the trial court entered an order amending Harrison’s probated sentence so that the conditions of probation included the general condition that he violate no laws of any governmental unit.

In March 2014, the State filed a petition to revoke Harrison’s probation, alleging that Harrison violated the terms and conditions of probation by being arrested on or about February 26, 2014 for the new felony offense of theft by taking, as charged by the Columbia County Sheriff’s Office, and by failing to pay court-ordered financial obligations. The State filed an addendum to the petition on April 14, 2014 alleging that Harrison violated the terms and conditions of probation by being arrested on or about February 26, 2014 for two counts of theft by taking and burglary, as charged by the Columbia County Sheriff’s Office.

At the outset of the hearing on the revocation petition, the trial court recited the allegations in the petition and addendum and asked whether the allegations were admitted or denied. Harrison’s counsel responded: “Judge, we would admit to the theft by taking count involving the theft of certain trailers. We deny the allegation that my client has committed burglary as a new offense. And we would also admit to failing to pay his financial obligations as directed.” The assistant district attorney then stated that in light of Harrison’s admissions, she would concede for purposes of the hearing that she did not have sufficient evidence to prove burglary. Harrison’s counsel then briefly described the circumstances surrounding the theft of the trailers, stating that Harrison took two trailers off of someone’s property when he should have known he did not have the right to do so. One of the trailers was “homemade” and “put together with set parts,” and the other was a manufactured trailer with “substantial value.” Harrison testified and admitted to taking the trailers. He testified that he sold the homemade trailer as scrap for about $200. An officer with the Columbia County Sheriff’s Office testified that Harrison sold the other trailer to a neighbor for $400 but that law enforcement was able to recover it.

Despite her concession that she could not prove burglary, the assistant district attorney cross-examined Harrison about that alleged offense. Harrison stated that he was helping his fiancée move all of the furniture out of her father’s home and that they took the hot water heater from the house because they noticed the lines had been cut and they were concerned someone was going to steal it. The Columbia County officer testified that the father of Harrison’s fiancée had stated that he told his daughter he did not approve of her relationship with Harrison and that she should not take anyone with her to his house, which was in foreclosure. The officer admitted that Harrison’s fiancée told him that she had asked Harrison to help her move items because he had a truck.

Following the hearing, the trial court entered an order revoking Harrison’s probation in full for eight years, three months, and three days. The State’s initial probation revocation petition was on a pre-printed form that included a space for the trial court to issue an order granting the petition. In the blank in which the trial court was to indicate the manner in which the terms and conditions of probation had been violated, the trial court wrote: “as set forth in petition.”

1. Harrison argues, and the State concedes, that under OCGA § 42-8-34.1 (d), the trial court was not authorized to revoke his probation for a period of time greater than five years. We agree.

As an initial matter, Harrison maintains, and the State does not dispute, that the trial court’s order finding that Harrison violated the terms and conditions of his probation “as set forth in petition” indicates that the trial court found that Harrison had committed the violations alleged in the initial petition — failure to comply with financial obligations and commission of one count of felony theft by taking — as opposed to the violations alleged in the addendum. The trial court entered its order on the initial petition and did not refer to the addendum. In addition, a contrary interpretation of the trial court’s order would require us to conclude that the trial court found that Harrison committed the felony offense of burglary although the State conceded that it could not prove that offense and did not do so. For example, the State offered no admissible evidence that Harrison was not authorized to enter his fiancée’s father’s house. See Bell v. State, 287 Ga. 670, 672-673 (1) (c) (697 SE2d 793) (2010) (reversing burglary conviction when evidence did not establish that defendant entered house without authority); OCGA § 16-7-1 (a). “The trial judge is presumed to know the law and presumed to faithfully and lawfully perform the duties devolving upon [her] by law. This court will not presume the trial court committed error where that fact does not affirmatively appear.” (Citations and punctuation omitted.) Matthews v. State, 294 Ga. App. 836, 841-842 (4) (670 SE2d 520) (2008).

Pursuant to OCGA § 42-8-34.1 (d):

If the violation of probation ... alleged and proven by a preponderance of the evidence or the defendant’s admission is the commission of a felony offense, the court may revoke no more than the lesser of the balance of probation or the maximum time of the sentence authorized to be imposed for the felony offense constituting the violation of the probation. . . .

The applicable sentence for theft by taking is governed by OCGA § 16-8-12 (a), which pertinently provides that a person convicted of that offense will

be punished as for a misdemeanor except: (1) (A) If the property which was the subject of the theft exceeded $24,999.99 in value, by imprisonment for not less than two nor more than 20 years; (B) If the property which was the subject of the theft was at least $5,000.00 in value but was less than $25,000.00 in value, by imprisonment for not less than one nor more than ten years and, in the discretion of the trial judge, as for a misdemeanor; (C) If the property which was the subject of the theft was at least $1,500.01 in value but was less than $5,000.00 in value, by imprisonment for not less than one nor more than five years and, in the discretion of the trial judge, as for a misdemeanor[.]

The State normally must prove the value of property that is the subject of a theft in order to support a felony sentence for theft by taking. Oglesby v. State, 301 Ga. App. 589, 590 (688 SE2d 384) (2009); see also Schneider v. State, 312 Ga. App. 504, 509 (4) (718 SE2d 833) (2011) (where State failed to prove value of taken items, trial court erred in sentencing defendant for a felony). It is undisputed that the State failed to prove the value of the trailers, separately or together, exceeded $1,500.01 so as to justify a felony sentence. Here, however, Harrison concedes that, through his counsel, he admitted to one count of felony theft by taking in the trial court. This admission, similar to a guilty plea to felony theft by taking, constitutes a “sufficient substitute for evidence of the actual value of the stolen property,” Oglesby, supra, 301 Ga. App. at 590 (punctuation and footnote omitted), authorizing the trial court to consider a felony sentence for theft by taking in ruling on the revocation petition. See also Cannon v. State, 260 Ga. App. 15, 17 (579 SE2d 60) (2003) (defendant waived challenge to sufficiency of evidence as to his wilfulness in failing to pay restitution as a special condition of probation where his attorney announced and led the trial court to believe that violation of restitution condition was uncontested).

As Harrison argues, consistent with the rule of lenity, see Davis v. State, 323 Ga. App. 266, 274-276 (8) (746 SE2d 890) (2013), the lowest range of punishment for felony theft by taking set forth in OCGA § 16-8-12 (a) (1) (C) should apply. The maximum felony sentence under OCGA § 16-8-12 (a) (1) (C) is five years. Therefore, under OCGA § 42-8-34.1 (d), the trial court was permitted to revoke the lesser of the balance of Harrison’s probation or five years. The trial court erred in revoking Harrison’s probation in full for a period in excess of eight years. See Gibson v. State, 279 Ga. App. 838, 840 (632 SE2d 740) (2006). Accordingly, we vacate the trial court’s revocation order and remand for resentencing consistent with this opinion.

2. Harrison argues that the trial court violated his constitutional rights by amending his sentence to impose the general condition of probation that he not violate any laws.

(a) Harrison argues that he received no notice that his sentence was amended and a new general condition added, and that his due process rights were violated as a result. Harrison did not assert a lack of notice in the trial court and has therefore waived this issue. See Couch v. State, 246 Ga. App. 106, 108 (3) (539 SE2d 609) (2000); Shaw v. State, 164 Ga. App. 208, 209 (2) (296 SE2d 765) (1982).

(b) Harrison also maintains that the subsequent imposition of the general condition of probation that he not violate the laws of any governmental unit violated the constitutional protection against double jeopardy. While Harrison did not raise this argument in the trial court, a modified sentence imposed in violation of the Fifth Amendment’s prohibition against double jeopardy is void. See Edge v. State, 194 Ga. App. 466, 467 (391 SE2d 18) (1990); Inman v. State, 124 Ga. App. 190, 192-193(1) (183 SE2d 413) (1971). “[A] void sentence in law amounts to no sentence at all,” and, as such, “a void sentence may be so held in any court where it becomes material to the interest of the parties to consider it, regardless of a lack of objection in the trial court.” (Citation and punctuation omitted.) Phillip v. State, 313 Ga. App. 302, 302-303 (721 SE2d 214) (2011).

Under OCGA § 17-10-1 (a) (5) (A), the trial court “retain[s] jurisdiction throughout the period of the probated sentence.” OCGA § 42-8-34 (g) provides that the trial court may, “in any manner deemed advisable by the judge, modify or change the probated sentence ... at any time during the period of time prescribed for the probated sentence to run.” “This statutory authority may be limited, of course, by constitutional requirements.” Stephens v. State, 289 Ga. 758, 764 (2) (b) (2) (716 SE2d 154) (2011). The double jeopardy clause of the Fifth Amendment prevents a court from increasing a defendant’s sentence after the defendant has begun to serve it “where doing so would upset the defendant’s legitimate expectation of finality in his sentence.” (Citation and punctuation omitted.) Id.

Assuming that Harrison had a legitimate expectation of finality in his sentence, the addition of the general condition that he not violate the laws of any governmental unit did not constitute an increase in punishment in violation of double jeopardy principles.

A change in the conditions of probation is not necessarily an increase in sentence. For example, an addition which is clearly and completely rehabilitative does not constitute an additional punishment. It is future-oriented, aimed wholly at effecting future positive behavior, rather than retrospective, principally extracting a price for past negative behavior.

Decided January 30, 2015.

John M. Kraft, for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

Staley v. State, 233 Ga. App. 597, 599 (505 SE2d 491) (1998); see also Gould v. Patterson, 253 Ga. App. 603, 604 (2) (560 SE2d 37) (2002) (modification of terms of probation to require sex offender treatment “was clearly rehabilitative, so it cannot be construed to constitute the imposition of additional punishment or an impermissible increase in the sentence.”). A condition of probation requiring compliance with the law is rehabilitative, not punitive, in nature. See Inman, supra, 124 Ga. App. at 194 (2) (certain conditions of probation, including condition that a defendant violate no penal laws, “are believed to directly affect the probationer’s . . . tendency to either further anti-social behavior or rehabilitation.”). Such a condition simply encourages lawful conduct and requires of a defendant only what is expected of all citizens. Accordingly, the subsequent imposition of the condition requiring compliance with the law did not violate Harrison’s rights under the double jeopardy clause of the Fifth Amendment.

Judgment vacated and case remanded with direction.

McFadden and Ray, JJ., concur.

       The evidence showed that Harrison owed $473 in court fees.

        Hinton v. State, 127 Ga. App. 853 (195 SE2d 472) (1973), is distinguishable. In that case, the trial court imposed a condition similar to the one at issue here in a written sentence although its earlier oral sentence, which stated that the defendant’s sentence was suspended but included no conditions, constituted an unconditional discharge. Id. at 853-854 (2). No unconditional discharge occurred in this case.


author: Ray, Judge.

text:
    A12A1989.
    AGNES SCOTT COLLEGE, INC. et al. v. HARTLEY.
    (768 SE2d 767)
   Ray, Judge.

In Division 1 of this Court’s opinion in Agnes Scott College v. Hartley, 321 Ga. App. 74, 76-80 (1) (741 SE2d 199) (2013) (“Hartley F), we reversed the trial court’s denial of a motion to dismiss Hartley’s complaint on the grounds that Agnes Scott College (“ASC”) and three campus policemen (collectively, “Defendants”) were entitled to immunity under the Georgia Tort Claims Act (“GTCA”). In Division 2 of Hartley I, this Court reversed the trial court’s denial of ASC’s motion to dismiss Hartley’s claims for respondeat superior. Id. at 80 (2).

1. In Hartley v. Agnes Scott College, 295 Ga. 458 (759 SE2d 857) (2014) (“Hartley II”), the Supreme Court of Georgia reversed the judgment of this Court in Division 1 of Hartley I, and in doing so, it ruled that the defendant policemen were not entitled to immunity under the GTCA. Hartley II, supra at 461-467 (2) (a)-(d). Consequently, we vacate Division 1 of our opinion in Hartley I, and in its place, we adopt the opinion of the Supreme Court as our own.

2. Our Supreme Court declined to address Division 2 of this Court’s opinion, which found that the trial court erred in denying ASC’s motion to dismiss Hartley’s claims for respondeat superior. See Hartley II, supra at 460 (1) (b), n. 2; Hartley I, supra at 80 (2). When the Supreme Court “considers only a portion of a Court of Appeals’ opinion and reverses, it is for the Court of Appeals to determine on remand whether the portions of its earlier opinion that were not considered by [the Supreme Court] are consistent with [the Supreme Court’s] ruling.” Shadix v. Carroll County, 274 Ga. 560, 563 (1) (554 SE2d 465) (2001). If Division 2 of this Court’s decision in Hartley I is consistent with the Supreme Court’s opinion in Hartley II, it “become [s] binding upon the return of the remittitur. If, however, such portions are not consistent with [the Supreme Court’s] ruling, [we] must enter an appropriate disposition concerning those portions that reconciles them with [the Supreme Court’s] ruling.” Id.

In Hartley I, we found that a private employer is not responsible under a theory of respondeat superior for tortious acts committed by its police officer employees if that employee “was performing public duties, not at the direction of the employer, while committing the tort in question.” (Citations omitted; emphasis supplied.) Hartley I, supra at 80 (2). This Court further found in Division 1 of Hartley I that

[t]he allegations in the complaint, taken as true, merely allege that the Defendants involved in this case were engaged in police functions involved in upholding the laws of the State and investigating an alleged crime. It follows, therefore, that in fulfilling their “law enforcement powers” granted by OCGA § 20-8-2, they were “acting on behalf or in service of the [S]tate in [an] official capacity,” and thus, they are “state officer[s]” under OCGA § 50-21-22 (7).

(Footnotes omitted.) Hartley I, supra at 77-78 (1). Yet, in Hartley II, our Supreme Court held that the ASC police officer defendants were not “state officer[s] or employee[s]” under the GTCA and they were not acting for a “state government entity” when they committed the alleged torts against Hartley because, inter alia, their actions were not “directed and controlled by any [specific] state government entity.” Hartley II, supra at 464-465 (2) (b), (c). Rather, the Supreme Court found that “the complaint repeatedly alleges, and the answer admitted, that the officers’ tortious conduct occurred while they were ‘acting in the line and scope of [their] employment with Defendant [ASC].’ ” Id. at 465 (2) (c). These findings are inconsistent with this Court’s statement in Hartley I that “[t]here is no indication in the complaint that ASC was involved in or directed [the campus policemen’s] conduct in investigating the alleged assault or initiating the judicial process with respect to that claim.” Hartley I, supra at 80 (2).

Decided February 2, 2015

Bendin Sumrall & Ladner, Brian D. Trulock, for appellants.

Lloyd N. Bell, for appellee.

FSB FisherBroyles, Jenna M. Colvin, Gaslowitz Frankel, Robert P. Marcovitch, amici curiae.

A motion to dismiss for failure to state a claim should not be granted “unless it appears to a certainty” that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim. (Citation omitted.) Liberty County School Dist. v. Halliburton, 328 Ga. App. 422, 423 (762 SE2d 138) (2014). “If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.” (Citation omitted.) Id. Given the Supreme Court’s findings in Hartley II, when the complaint’s allegations are construed in the light most favorable to Hartley, ASC has not established that Hartley could not possibly present evidence that the campus policemen were acting under the direction of ASC at the time of their allegedly tortious conduct.

Accordingly, we vacate Division 2 of Hartley I and affirm the trial court’s denial of the defendant’s motion to dismiss Hartley’s claim against ASC for respondeat superior.

Judgment affirmed.

Phipps, C. J., Andrews, P. J., Doyle, P. J., Miller, Boggs and Branch, JJ., concur.


text:
    A14A1835.
    RANGER v. THE STATE.
    (768 SE2d 768)
   Ray, Judge.

Nathan Ranger entered a nonnegotiated plea of guilty to two counts of robbery, to robbery as a lesser included offense in three counts of armed robbery, and to one count of criminal attempt to commit robbery (OCGA §§ 16-4-1; 16-8-40; 16-8-41). He appeals from the denial of his motions to withdraw the guilty plea, contending that his plea was not freely and voluntarily made because he did not know he would be sentenced as a recidivist. He also argues that his sentence as to the count of criminal attempt to commit robbery was illegal. We affirm the trial court’s denial of Ranger’s motion to withdraw his guilty plea; however, because Ranger was improperly sentenced on the criminal attempt to commit robbery charge, we vacate that portion of his sentence and remand for resentencing.

To determine whether a guilty plea is valid, the record must show that the defendant understands the plea and the constitutional rights he is relinquishing. Boykin v. Alabama, 395 U. S. 238, 242 (89 SCt 1709, 23 LE2d 274) (1969). The State has the burden on review of establishing that the plea was knowingly and voluntarily entered. Williams v. State, 296 Ga. App. 270, 271 (1) (a) (674 SE2d 115) (2009). The State may meet its burden “by showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea, or by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” (Citation and punctuation omitted.) Loyd v. State, 288 Ga. 481, 485 (2) (b) (705 SE2d 616) (2011); Uniform Superior Court Rule 33.8. After sentencing, the decision on a motion to withdraw a guilty plea is within the trial court’s sound discretion and will not be disturbed absent a manifest abuse of that discretion. Williams, supra. Further, “[w]e accept the trial court’s findings on all issues involving the resolution of witness credibility and factual disputes.” (Citation omitted.) Id.

The record shows that the State filed a recidivist notice on December 28, 2010. The trial court held two pretrial hearings, one on January 4, 2011, and another on January 6, 2011. Ranger entered his plea of guilty to the charges at issue during this latter hearing.

At the hearing on January 4, 2011, at which Ranger was present, the State mentioned its notice in aggravation of sentencing and presented three certified copies of Ranger’s prior felony convictions. Ranger’s trial counsel specifically acknowledged the prior felonies, stating, “What we would ask for, your honor — we understand the seriousness. We understand the magnitude of these. This would be as a plea under the recidivist statute, which, as the court knows, he will serve every day, especially on charges of this.” (Emphasis supplied.) Ranger’s counsel then asked for a sentence of twenty years to serve ten with credit for time served. The trial court said it would sentence Ranger to twenty years to serve, then asked the State, “Would he be pleading under the recidivist statute?” (Emphasis supplied.) The State responded, “Yes[.]” Ranger’s counsel added, “Which is why we had asked for less, your honor.” Ranger’s counsel then asked for time to consider the possible sentence and noted that Ranger was on the pretrial calendar for January 6, 2011.

When the trial court reconvened on January 6, 2011, Ranger’s attorney stated that at the previous hearing, “the court had indicated that if Mr. Ranger wanted to plea, Mr. Ranger would be sentenced to 20 years as a recidivist.” (Emphasis supplied.) She asked the court to reconsider and mentioned earlier plea negotiations in the case in which Ranger “had been led to believe the offer was 25 years with 15 to serve, the balance probated as a nonrecidivist. When he accepted that offer, he found out that that was no longer on the table and it was indicated that that had never been the intent.” Ranger’s attorney then asked the court to consider sentencing Ranger to “15 years as a recidivist.” (Emphasis supplied.) The trial court responded that “in light of Mr. Ranger’s prior record and the number of robberies involved in this case, as well as the allegations concerning those robberies, I think the sentence of 20 years to serve is more than appropriate and that would be the sentence the court would impose on a plea.” Ranger’s lawyer responded, “We will go forward with the plea.”

During the plea colloquy, when asked by the court if anyone had made threats or promises to him in exchange for his plea, Ranger responded, “Yes[.]” He then explained that he thought the prosecutor had offered him “25 to serve 15 nonrecidivist or you said 20 to serve 15 recidivist.” The State pointed out that this was neither a threat nor a promise, and that, as Ranger’s attorney had earlier acknowledged, Ranger’s statement did not reflect the intent of the State’s offer. The trial court then stated that despite any confusion the attorneys may have had about an earlier negotiated plea offer, “had that even been the offer submitted to this courtf] this court would not have found it appropriate in this case. Do you understand that?” (Emphasis supplied.) Ranger responded, “I understand.”

As the record makes abundantly clear, the possibility of a non-recidivist sentence never was presented to or considered by the court. Further, Ranger’s response shows he understood that a nonrecidivist sentence was not a possibility. Ranger further indicated during the plea colloquy that, inter alia, his lawyer had explained the charges against him, that he understood that the maximum penalty he could receive for the charges to which he was pleading was 110 years, and that he understood that the court would sentence him to 20 years to serve with no probation. He then entered his guilty plea and stated that he understood his sentence. The transcript shows that immediately after Ranger stated that he understood his sentence and the trial court accepted his plea, the trial court again affirmed that it was sentencing him “as a recidivist” under OCGA § 17-10-7 (c).

At the hearing on his motion to withdraw his plea, Ranger testified that he had never heard the word “recidivist” until the day of his plea. He stated that neither the State nor the trial court explained that he would be sentenced as a recidivist. Ranger’s trial counsel, by contrast, testified that she and Ranger had discussed what the term “recidivism” meant, and that she had explained to him the difference between recidivist and nonrecidivist sentencing “several times.” She also confirmed, as is indicated in both pretrial and plea hearing transcripts, that “the nonrecidivist [sentence] was not on the table” at the time of the plea.

Given this evidence, the State met its burden of showing that Ranger’s plea was freely and voluntarily entered, that he understood the nature of the charges against him, and that he was aware of the consequences of his plea. Further, any credibility issues were for the trial court. Matthews v. State, 295 Ga. App. 752, 755 (2) (673 SE2d 113) (2009); Weeks v. State, 260 Ga. App. 129, 130-131 (1) (578 SE2d 910) (2003). The trial court did not err.

Ranger argues that the lower court erred in sentencing him to twenty years to serve on the criminal attempt to commit robbery count because the maximum sentence he could have received was ten years. The State concedes that this is so, and we agree.

OCGA § 16-4-6 (b) provides:

A person convicted of the offense of criminal attempt to commit a felony, other than a felony punishable by death or life imprisonment, shall be punished by imprisonment for not less than one year nor more than one-half the maximum period of time for which he or she could have been sentenced if he or she had been convicted of the crime attempted, by one-half the maximum fine to which he or she could have been subjected if he or she had been convicted of the crime attempted, or both.

Decided February 2, 2015.

S. Cindy Wang, Gina Bernard, for appellant.

Robert D. James, Jr., District Attorney, Gerald Mason, Assistant District Attorney, for appellee.

(Emphasis supplied.) OCGA § 16-8-40 (b) provides that the maximum sentence for robbery is twenty years; half that time, obviously, is ten years. Accordingly, we vacate Ranger’s sentence for criminal attempt to commit robbery and remand the case for resentencing.

Judgment affirmed in part, sentence vacated in part, and case remanded for resentencing.

Andrews, P. J., andMcFadden, J., concur.

       The State agreed to nolle prosequi one count of aggravated assault.

       Ranger received 20-year concurrent sentences on all the counts to which he pled.


text:
    A14A2266.
    GEORGIA DEPARTMENT OF HUMAN SERVICES et al. v. DOUGHERTY COUNTY et al.
    (768 SE2d 771)
   Ray, Judge.

Dougherty County, Georgia, and its sheriff, Kevin Sproul (the “plaintiffs”), filed a complaint in the Superior Court of Dougherty County against the Georgia Department of Human Services and the Division of Child Support Services (the “defendants”) seeking to recover statutory service of process fees for civil actions that the defendants had initiated in that court. The defendants filed an answer by special appearance and simultaneously moved to dismiss the complaint on various grounds, including improper venue. The trial court denied the motion to dismiss and issued a certificate of immediate review. The defendants now appeal. For the reasons explained below, we reverse the trial court’s ruling on the issue of venue, vacate the remaining portions of the trial court’s order, and remand the case with direction that the case be transferred to the Superior Court of Fulton County for further proceedings consistent with this opinion.

1. The defendants contend that the trial court erred in denying their motion to dismiss on the basis of improper venue. We agree.

In this case, the plaintiffs allege that the defendants have failed to comply with subsections (b) (1) and (g) of OCGA § 15-16-21, which requires the party who files a civil action to pay the sheriff of that county a fee for serving a copy of process. As the plaintiffs’ claim is against governmental agencies of the State of Georgia and because the legislature has not carved out any venue exception for such a claim, we find that the proper venue in this case lies in the county where the defendants reside pursuant to Art. VI, Sec. II, Par. VI of the Georgia Constitution of 1983.

Although the defendants maintain offices throughout the State of Georgia, their principal offices are located in Fulton County. In making a determination of venue based solely on the “residence” of a governmental department or agency, where there is no applicable constitutional or statutory provision to establish venue elsewhere, we have held that “it can hardly be denied that Fulton County, the site of the State Capitol and seat of government as well as location of the principal offices of the [defendants], is an appropriate venue.” (Citation omitted.) Hoffman v. Dept. of Corrections, 218 Ga. App. 363, 364 (460 SE2d 882) (1995).

In its ruling on venue, the trial court relied, in part, on State Highway Dept. v. Parker, 75 Ga. App. 237 (43 SE2d 172) (1947), for the proposition that any division of state government that is present throughout the state “could be sued in any county of Georgia.” Id. at 244. However, the trial court’s reliance on Parker is misplaced. In that case, the issue was whether Parker could bring a cause of action directly against the State Highway Department for damages occurring on a highway, when a statute enacted in 1933 provided that the only way the Highway Department could become liable for a tort was if the county had been named as the defendant and the county brought the Highway Department into the case to defend the claim. Id. at 238-242. In Parker, we noted that a statute enacted in 1943 allowed the plaintiffs to sue the Highway Department directly for a tort and that such a claim could be brought in any county in Georgia wherein the tort cause of action arose. Id. at 244-245. Parker is inapplicable here because the instant case does not involve a tort claim.

For the above reasons, the trial court erred in finding that venue was proper in Dougherty County and in denying the defendants’ motion to dismiss on that basis.

Decided February 2, 2015.

Samuel S. Olens, Attorney General, W. Wright Banks, Jr., Deputy Attorney General, Julie A. Jacobs, Senior Assistant Attorney General, Elizabeth A. Harris, Assistant Attorney General, for appellants.

W. Spencer Lee IV, Jenkins & Bowen, Frank E. Jenkins III, for appellees.

Walker, Hulbert, Gray & Moore, Larry Walker, Kellye C. Moore, amici curiae.

2. As venue did not lie in Dougherty County, the trial court did not have the authority to rule on the other grounds raised in the defendants’ motion to dismiss. See Chung v. Hair Trend USA, 322 Ga. App. 429, 432 (745 SE2d 681) (2013) (“A trial court without venue lacks authority to issue an order or judgment, and any such order or judgment is void”) (citation omitted). Accord Coastal Transport v. Tillery, 270 Ga. App. 135, 140 (3) (605 SE2d 865) (2004). Therefore, the remaining portions of the trial court’s order are vacated.

In their brief on the motion to dismiss, the defendants specified that proper venue lies in Fulton County, and they alternatively asked that the case be transferred there. When it is determined that venue is improper, the appropriate response to a motion to dismiss is to transfer the case to the proper venue. Coastal Transport, supra. Accordingly, we remand the case to the trial court with direction that it transfer this case to the Superior Court of Fulton County to address the merits of the defendants’ motion to dismiss.

3. Based on our holding in Divisions 1 and 2, we need not address the defendants’ remaining enumerations of error.

Judgment reversed in part and vacated in part, and case remanded with direction.

Andrews, P. J., and McFadden, J., concur.

       Prior to the 1943 statute, such claims could only be brought in the county of residence of a member of the State Highway Board. Id. at 244.

       Our legislature has since enacted OCGA § 50-21-28, which provides, in pertinent part, that “[a]ll tort actions against the [S]tate . . . shall be brought in the state or superior court of the county wherein the loss occurred[.]”