author: RAY, Judge.

text:
    A12A2327.
    IRVING v. THE STATE.
    (740 SE2d 778)
   RAY, Judge.

A Cobb County jury found Jovanda Nicole Irving guilty beyond a reasonable doubt of one count of aggravated assault, three counts of cruelty to children in the first degree, and two counts of aggravated battery. She appeals from her convictions and the denial of her motion for new trial, contending that the trial court erred (1) in denying her motion for directed verdict; (2) in denying her motion to sever; (3) in failing to give a jury charge on accident; (4) in actively participating in the trial and conducting an ex parte hearing; (5) in admitting the child victim’s out-of-court statement; (6) in denying her request to reopen the evidence; (7) in failing to excuse a juror for cause; and (8) in imposing an excessive sentence. Finding no error, we affirm.

1. Irving contends that she was entitled to a directed verdict of acquittal because the State failed to prove that the crimes occurred in Cobb County. We disagree.

A motion for a directed verdict should be granted only when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction: the evidence must be sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. The evidence must be viewed in the light most favorable to support the verdict and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine the credibility of witnesses.

Viewed in this light, the evidence shows that Irving and her three-year-old daughter were living with Irving’s boyfriend, Rudolph Nunnally, in apartment B-14 of the Skyway Apartments in Cobb County. On April 29, 2009, Barry Goodwin was standing outside of apartment B-13 with Maurice Promise when they heard the sound of a child screaming coming from inside Irving’s apartment. Joseph Dunbar and Sherrod Gillis were barbecuing in the parking lot of the apartment complex when Promise got their attention and waved them over to listen. As they stood outside of Irving’s apartment, the men heard the sound of a child being beaten. Goodwin testified that it sounded like “fists on flesh,” and that what they heard “was rough... a little girl... screaming like, bad screaming,... can’t really describe it, but it was bad.” Goodwin further testified that the screaming was at first a “high pitch screaming, like a... horror movie scream,” but after a minute the screaming “kept going down..., like if somebody . . . was trying to scream, but they really couldn’t get it out.” Dunbar testified that he heard “[a] lot of popping, just consistently pop, pop, pop, pop, pop,” a “skin on skin” sound like someone was “popping the back of your hand consistently like twenty times.” Dunbar further testified that he heard a child “sighing . . . , like an exhausted breathing” and another male and female saying “hold her, hold her” and “keep her still, keep her still.” The beating went on for several minutes until Gillis called the apartment manager, Jimmy Gravley, who then called the police.

A Cobb County police officer, Brandon Williams, responded to the call and went to apartment B-14 to investigate. Irving allowed Officer Williams to come inside the apartment, and he observed the child sleeping face-down on the couch. Nunnally, Irving’s boyfriend, was also inside the apartment at the time. Upon his examination of the child, Officer Williams observed marks across her upper back and marks on the back of her legs. When Officer Williams asked Irving how the child got these marks, Irving stated that the marks on the child’s back were from “whippings from before,” and that the marks on the child’s legs were caused by the child “bump[ing] into things.” Officer Williams asked Irving and Nunnally to remain in the apartment while he went outside to his patrol car to report his findings to the police department’s Crimes Against Children Unit. After detectives were sent to the scene, Irving and Nunnally were placed under arrest, and the child was taken into protective custody.

The detectives observed fresh injuries on the child, which included areas without skin on her nose, lips, and buttocks. The detectives also observed “loop marks” on her body, bruising and open cuts on her head, and swelling on her stomach.

Thereafter, the child was taken to Scottish Rite Hospital. Dr. Stephen Messner examined the child and determined that she had various internal injuries and visible external injuries which were consistent with blunt force trauma. When Dr. Messner asked the child about her injuries, the child stated that her mother had hurt her with a belt and a stick. Dr. Messner determined that the “loop-shaped marks” on the child’s body were consistent with being struck by a “looped-over object,” such as “a cord or a belt or a rope,” and that the linear bruising on the child’s body was consistent with being struck with a linear object, such as a broom. As for the areas on the child’s buttocks that were missing skin, Dr. Messner determined that these injuries were caused by repetitive trauma, and that the injuries were consistent with being struck repeatedly by a belt, a cord, or a paddle.

After executing a search warrant on Irving’s apartment, the detectives found a belt hanging on a doorknob, several electrical cords, a paddle, and a broom with a broken handle. The detectives also found the child’s bloody clothing, including underwear covered in blood, pus, and/or tissue.

In claiming that the trial court erred in denying her motion for a directed verdict, Irving contends that the evidence presented was insufficient because the State failed to prove that the injuries that the child sustained happened in Cobb County. Irving argues that the evidence only shows that the child was crying in Irving’s apartment.

Generally, a criminal action must be tried in the county in which the crime was committed, and the State may establish venue by whatever means of proof are available to it, including direct and circumstantial evidence. As an appellate court, we view the evidence in a light most favorable to support the verdict and determine whether the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime was committed in the county where the defendant was indicted.

In this case, the State presented the testimony of numerous witnesses and other evidence that sufficiently established that the crimes occurred in Cobb County. At trial, the testimony of Dunbar, Promise, Goodwin, and Gillis indicates that the men heard much more than just the sound of the child crying coming from Irving’s Cobb County apartment. They heard the sounds of a child being severely beaten, along with male and female voices saying “hold her . . . keep her still” and “be still.” Officer Williams testified that, when he arrived at the scene, he found Irving and Nunnally in the apartment with the child and that the child had visible marks on her body. Dr. Messner testified that he observed recent injuries to the child’s body, including bruises, swelling, and damage to her internal organs from significant blunt force trauma. Further, the injuries that the child sustained were consistent with being struck by the items found in Irving’s apartment.

Accordingly, we conclude that the State presented sufficient evidence to establish that the crimes occurred in Cobb County and for the jury to find beyond a reasonable doubt that Irving committed the crimes for which she was convicted. The trial court did not err in denying Irving’s motion for a directed verdict of acquittal.

2. Irving contends that the trial court erred in denying her motion to sever her trial from that of Nunnally, her co-defendant. Irving appears to argue that Nunnally’s conduct and decision not to testify at trial prevented her from eliciting testimony from Nunnally that would have exculpated her. However, Irving has failed to cite to any authority to support her argument that she was entitled to severance based on Nunnally’s conduct, and she has failed to provide citations to the record to show that Nunnally’s testimony would have tended to exculpate her. Accordingly, Irving’s argument in this enumeration is deemed abandoned pursuant to Court of Appeals Rule 25 (c) (2).

3. Irving contends that the trial court erred in denying her request to charge the jury on accident. We disagree.

“A charge on the affirmative defense of accident is required only if there is evidence to support a finding that the defendant committed the acts which were the basis of the charge, but without any criminal scheme or undertaking, intention, or criminal negligence.” Thus, the evidence must show that Irving admits to having committed the acts that would constitute the crimes for which she was charged, but claims that her acts were done unintentionally.

Here, Irving’s defense was that she did not cause the child’s injuries. She argued that “this child was in the care and custody of Mr. Nunnally, that he snaps and he beat and injured this child.” Irving, therefore, did not present an affirmative defense of accident.

Irving refers to the testimony of Officer Williams when he stated that, in response to his inquiry regarding the child’s marks on her legs, Irving and Nunnally both stated that the child “bumps into things.” However, this testimony does not warrant a charge on accident, because Irving did not admit in this statement that she committed any act against the child. Moreover, the evidence shows that the child’s injuries were not consistent with her having bumped into things, but were consistent with being struck with a looped object, such as the belt or cord. As the evidence does not support a charge on accident, the trial court did not err in denying the request.

4. Irving contends that the trial court erred by actively participating in the trial and conducting an ex parte hearing concerning the mental health of Irving’s co-defendant. We discern no error.

Embodied within the constitutional rights to the courts is a criminal defendant’s right to be present and see and hear, all the proceedings which are had against him on the trial before the [c]ourt. This is a fundamental right and a foundational aspect of due process of law.

In response to a motion filed by Irving’s co-defendant immediately preceding the start of the trial, the trial court requested that a mental health expert appear to give testimony regarding Nunnally’s mental condition and his competency to stand trial. With Irving and her counsel present in the courtroom, Nunnally’s counsel asked that the hearing be conducted outside the presence of the prosecution, the public, and all nonessential court personnel. The trial court granted the request, and it directed all persons to exit the courtroom. Irving did not object, and she was escorted to a holding cell until the conclusion of the hearing.

Although a defendant has a fundamental right to be present at all proceedings which are conducted at her trial, “the right to be present belongs to the defendant, and [she] is free to relinquish it if [she] so chooses.” The right is waived “if the defendant personally waives it in court; if counsel waives it at the defendant’s express direction; if counsel waives it in open court while the defendant is present; or if counsel waives it and the defendant subsequently acquiesces in the waiver.” Here, the record shows that Irving and her counsel were present in the courtroom when the trial court granted Nunnally’s request for an ex parte hearing regarding Nunnally’s competency to stand trial, and neither Irving nor her counsel objected to her leaving the courtroom. Thus, at the very least, Irving acquiesced in her counsel’s waiver of her right to be present at this hearing. Accordingly, the trial court’s ex parte hearing does not warrant reversal of Irving’s convictions.

We also find no merit in Irving’s argument that the trial court erred in calling the mental health representative to the stand and questioning this witness concerning the status of Nunnally’s mental health. The trial court has a constitutional duty to inquire into a defendant’s competency when the issue “appears to be in question at the time of trial.” Furthermore, it is not improper for the trial court to question a witness “for the purpose of developing fully the truth of the case, and the extent of such an examination is a matter for the trial court’s discretion.” However, the trial court, in questioning the witness, cannot intimate any opinion or become argumentative. As the record indicates that the trial court’s examination into Nunnally’s competency was in accordance with these principles, we discern no error.

Nor did the trial court err in suggesting to Nunnally’s counsel that Nunnally be examined by a doctor, who happened to be present in the courthouse at the time. The trial court’s suggestion was made in response to Nunnally’s motion for such an evaluation, and Irving has failed to show how this was improper.

5. Irving contends that the trial court erred in admitting the child’s out-of-court statement that she made to Dr. Messner during her medical examination, wherein she stated that “Mommy hurt me . . . with a belt” and “with a stick.” We discern no error.

OCGA § 24-3-16 provided:

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

In Gregg v. State, we outlined a number of factors that the trial court may consider when determining the reliability of a child’s out-of-court statement. These factors include, but are not limited to, (1) the atmosphere and circumstances under which the statement was made; (2) the child’s condition (physical or emotional) at the time of the statement; and (3) the presence or absence of drugs or alcohol. “These factors are to be applied neither in mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness.”

The trial court conducted a hearing, outside the presence of the jury, regarding the admissibility of the child’s statement. The record shows that, at the time the child made the statement, she was at the Scottish Rite Hospital being examined and treated for significant injuries. Dr. Messner testified that morphine and Tylenol had been ordered for the child, but that he did not know if she had received these medications at the time he spoke to the child. He also testified that he did not recall if anyone else was present at the time the child made the statement, but that his report did not note that anyone else was present. The trial court found that the statement had sufficient indicia of reliability and allowed the statement to be introduced into evidence.

The trial court has broad discretion in the admission of evidence,... and as long as sufficient evidence of indicia of reliability appears in the record either before or after the introduction of the child’s out-of-court statements, the fair trial rights of the defendant are adequately protected.

Thus, if the record as a whole contains sufficient evidence that the child’s out-of-court statement has “indicia of reliability,” we will not reverse the correct ruling of the trial court.

In her statement, the child specified that she was struck with a belt and a stick, which is consistent with the injuries she received. Furthermore, her statement that her mother hurt her is supported by the testimony of the witnesses who heard the incident. For these reasons, we find that the statement has sufficient indicia of reliability and that the trial court did not abuse its discretion in admitting the statement.

6. Irving contends that the trial court erred in denying her request to reopen the case to allow her to introduce statements that Nunnally had previously made to the trial court regarding their respective involvement in the incident. We disagree.

Whether to reopen the case after the close of the evidence rests within the sound discretion of the trial court, and a trial court’s ruling in this regard will only be reversed if, in the totality of the circumstances, the record on appeal demonstrates that the trial court abused its discretion.

Prior to the State resting its case, the trial court inquired into whether Nunnally was going to testify in his own defense. Outside the presence of the jury, the trial court advised Nunnally about his right to remain silent and his choices regarding testifying. Nunnally indicated that he wanted to make a statement, but that he did not want to testify. The trial court advised Nunnally that he could not make a statement, at this point, without being placed under oath and subjecting himself to cross-examination. Nunnally then reaffirmed that he did not want to testify. Nunnally then stated, “I just want to say that [Irving] didn’t do this.” Whereupon the following colloquy took place:

MR. JONES [Irving’s attorney]: Well, normally, and I think ethically, knowing in advance that [Nunnally] invoked his right, normally I would not call him [as a witness] knowing that. But I’m put in a very uncomfortable position here . . .
I’ve heard him twice say that he wants to tell that he did it; that [Irving] is not responsible.
DEFENDANT NUNNALLY: I didn’t say that.
MR. JONES: Well —
DEFENDANT NUNNALLY: I didn’t say that I’m going to tell them that I did it. I didn’t say that. . . .
THE COURT: He’s indicated just now that ... he would invoke his right against self-incrimination and refuse to answer any questions that may tend to incriminate him regarding the offense for which he and Ms. Irving are on trial for. . . .
MR. JONES: Well, he’s invoking his right on one aspect. It’s my understanding of the law that any other testimony would be stricken or disregarded..., he can’t just exercise his Fifth Amendment privilege on a portion.
THE COURT: No . . . It’s either an all or nothing.
MR. JONES: Right, and so it’s my understanding now that he’s invoked that formally; and therefore, out of the presence of the jury .. . that puts him on notice that I would attempt to call him. But now that I understand that he’s invoked it, I will not be doing that in the jury’s presence.

Thereafter, Irving did not attempt to introduce Nunnally’s statements when she presented her case to the jury. On the morning after the close of evidence, Irving moved to reopen the case to introduce Nunnally’s statements as admissions in judicio. The trial court denied the request, finding that the statements were not made under oath and that reading the statements from the record to the jury would deprive the State of its right to cross-examination.

Considering the overwhelming evidence of Irving’s guilt, together with Nunnally’s recanting of his unsworn statements, it appears highly improbable that the statements would have led to a different verdict. Under these circumstances, we cannot conclude that the trial court abused its discretion in denying the motion to reopen the case.

Decided March 27, 2013.

Robert H. Alexander III, for appellant.

Patrick H. Head, District Attorney, Amelia G. Pray, D. Victor Reynolds, Assistant District Attorneys, for appellee.

7. Irving contends that the trial court erred in denying a request to excuse a prospective juror for cause. As the record shows that the request for excusal was made by Nunnally, and that Irving did not join in this request, Irving has waived this issue and may not utilize it for the purposes of appellate review.

8. In her last enumeration of error, Irving contends that her forty-year sentence was excessive and contrary to the principles of fairness. We discern no error.

OCGA § 17-10-1 (a) (1) “authorizes the trial court to sentence a defendant to any amount of time within the limits provided by law.” Here, Irving’s sentence falls within the statutory ranges for each offense. The Supreme Court of Georgia has held:

Legislative enactments constitute the clearest and most objective evidence of how contemporary society views a particular punishment. As a result, the issue of punishment is generally one for the legislative branch, and legislative discretion is deferred to unless the sentence imposed shocks the conscience.

Given the facts of this case, Irving’s sentence was appropriate and was not so disproportionate as to shock the conscience. Arguably, indeed, it was not disproportionate at all.

Judgment affirmed.

Branch, J., concurs. Miller, P. J., concurs in judgment only.

       OCGA § 16-5-21.

       OCGA § 16-5-70 (b).

       OCGA § 16-5-24.

       (Citation omitted.) Walker v. State, 310 Ga. App. 223, 223 (1) (713 SE2d 413) (2011).

       (Citation and footnote omitted.) Pippins v. State, 263 Ga. App. 453, 455 (2) (588 SE2d 278) (2003).

       Id. at 455-456 (2).

       In her brief, Irving specifically refers to an outburst that Nunnally made to the trial court, prior to the start of trial, in which he railed against the case against him and the judicial system in general. However, this outburst was made after Irving had renewed her motion to sever.

       (Citation and punctuation omitted.) Griffin v. State, 262 Ga. App. 87, 89 (3) (585 SE2d 145) (2003).

        Haynes v. State, 281 Ga. App. 81, 82 (2) (b) (635 SE2d 370) (2006). See also Maxey v. State, 272 Ga. App. 800, 802 (1) (613 SE2d 236) (2005) (“In order to assert a statutory affirmative defense, .. . the defendant must admit all of the elements of the crime except intent.. ..”).

       (Citations and punctuation omitted.) Ward v. State, 288 Ga. 641, 645 (4) (706 SE2d 430) (2011).

       (Footnote omitted.) Hampton v. State, 282 Ga. 490, 492 (2) (a) (651 SE2d 698) (2007).

       (Footnote omitted.) Id.

       See Hampton, supra (holding that trial court’s interviews of two jurors without defendant present did not violate defendant’s right to he present at all critical proceedings because, in part, defendant acquiesced in his counsel’s waiver of the right).

       See Adams v. State, 316 Ga. App. 1, 5-6 (2) (728 SE2d 260) (2012).

       (Citation omitted.) Lamar v. State, 278 Ga. 150, 151 (1) (a) (598 SE2d 488) (2004).

       (Citation omitted.) Mullins v. State, 269 Ga. 157, 158 (3) (496 SE2d 252) (1998).

       Id.

       This Code section, which was in effect at the time of Irving’s trial, has been repealed by Ga. L. 2011, p. 99, § 2, effective January 1, 2013.

       201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991).

       Id.

       (Emphasis supplied.) Id. at 240 (3) (a).

       Id.

        Smith v. State, 306 Ga. App. 693, 696-697 (2) (703 SE2d 329) (2010).

       See Carruth v. State, 267 Ga. 221 (476 SE2d 739) (1996); Hall v. State, 309 Ga. App. 222, 226 (3) (709 SE2d 910) (2011).

       See Maxwell v. State, 267 Ga. App. 227, 229 (3) (599 SE2d 228) (2004) (defendant waived any objection by failing to adopt his co-defendant’s objection). Compare Underwood v. State, 283 Ga. App. 638, 638-639 (1) (642 SE2d 324) (2007) (where defendant joined in the co-defendant’s motion to excuse a juror for cause, the defendant preserved the issue for appellate review).

       (Citation omitted.) Baldwin v. State, 217 Ga. App. 866, 868 (3) (460 SE2d 80) (1995).

       (Citation omitted.) Widner v. State, 280 Ga. 675, 676 (1) (631 SE2d 675) (2006).

       Id.


source: Caselaw Access Project

author: McMlLLIAN, Judge.

license: Public Domain

text:
    A12A2455.
    HINES v. THE STATE.
    (740 SE2d 786)
   McMlLLIAN, Judge.

Bridgett Marvette Hines appeals the denial of her motion for new trial following her conviction by a jury of armed robbery, aggravated assault, concealing the identity of a motor vehicle, and two counts of contributing to the delinquency of a minor. Hines raises 16 enumerations of error on appeal, and after considering the parties’ arguments, the applicable law and the record, we affirm for the reasons set forth below.

Viewed in the light most favorable to the verdict, the evidence at trial showed that sometime prior to January 1,2009, Ricky Timmons and Hines’ co-defendant, Geoffrey Jupiter, decided to commit a robbery. On the night of January 1, Jupiter, Hines and her minor son drove Hines’ son-in-law’s Mercury Marquis to Timmons’ house, where they picked Timmons up and drove to the Lucky convenience store in Clayton County. Hines was driving, and in her original handwritten statement to police, she stated that Jupiter had called her earlier and offered to pay her to drive. On the way to the store, Hines tried to talk to Timmons about the robbery, but he did not really talk about it. When they arrived at the store sometime around 10:30 to 11:00 p.m., Hines and her son went inside for approximately five minutes. They returned to the car, and Hines drove to a nearby area where, according to Timmons, Hines instructed her son to get out of the car and remove the car tag. When he had done so, Hines drove back to the Lucky store and parked at the far side, away from the store. Hines then handed Timmons a gun, and Timmons and Jupiter, each carrying a gun, got out of the car, went inside the store, pointed their guns at the clerk and left the store with money and cigars. When they returned, Hines drove away.

Unbeknownst to Hines and the others, however, Officer Andrew Hammond of the Jonesboro Police Department was parked “a couple [of] football fields” away, while working speed enforcement. From this position, he had a view of most of the Lucky store and its parking lot, and he saw a Mercury Marquis go through the parking lot and stay for a minute or so. Then, it left the lot and pulled across the street into a parking space at another business. The car sat there for a minute or two and then returned to the Lucky store, driving “really slowly” across the parking lot to one of the entrances to the lot, where it stopped and the lights were turned off. Jonesboro Police Officer Mark Carpenter pulled into the Lucky store a short time later as part of his regular patrol. He saw the car parked in a far corner of the lot in a dark area.

A few minutes later, both officers saw two males run in what Carpenter described as “a full sprint” across the parking lot and jump in the car. The car pulled out of the parking lot, without its lights on, at a high rate of speed. Hammond said that it appeared as if the driver put the car in drive and “stomped the gas,” because “it shot out of the parking lot very quickly.” Carpenter immediately began following the car, with Hammond behind him, and they both noticed that the car’s license plate was missing.

After the officers activated their blue lights, Hines stopped the car. Timmons and Jupiter jumped out and ran. Hammond apprehended Timmons near the scene, but Jupiter escaped. Hines and her son stayed in the car, and Carpenter discovered a handgun under the driver’s seat in the rear passenger area at Hines’ son’s feet. He also discovered a BB gun laying outside the car near the front passenger door, along with a mask. Inside the car, Carpenter found cigars and approximately $2,338 in cash, laying all over the front passenger seat. He also located $448 in cash stuffed down the sleeve of Hines’ son’s jacket. Carpenter found the car’s license plate in the middle of the back seat between where the two back seat passengers, Timmons and Hines’ son, had been sitting.

Hines testified and denied any prior knowledge of the robbery. According to Hines, she picked her son up that night from his Christmas visit with his father, and they retrieved the $250 the father paid her in monthly child support from an ATM. She said that as her son was putting his things away in the trunk, he noticed that the car tag was hanging by one screw, so he removed it and put it in the back window of the car. But Hines’ statement to police indicates that the tag was removed after they arrived at the Lucky store that night.

Hines testified that Jupiter called her after she picked up her son and told her that she could play the slot machine at the Lucky store for money because the people there knew him. Hines wanted to use some of her child support money to play the game. When she arrived to pick up Jupiter before heading to the store, he told her that they needed to get Timmons first, so they picked up Timmons and went to the Lucky store. Hines and her son went inside, while Timmons and Jupiter waited in the car. She bought her son an ice cream and asked if she could play the game for money, but the clerk said they could not. They then left the store and returned to the car.

After they pulled out of the parking lot, Hines said that Timmons wanted some cigars, so she turned around and went back to the store. Timmons and Jupiter went inside while Hines and her son sat in the car. The men came running out of the store and got in the car. Hines testified that she did not see any weapons and did not suspect anything at that time, although her handwritten statement appears to indicate that she saw a gun before the robbery when Jupiter and Timmons got out of the car to go into the store. She denied handing Timmons a gun. As they drove away, they noticed a car following them, and when Timmons identified it as a police car, Hines said that he removed the tag from the Marquis’ back window. Hines immediately stopped when the police turned on their lights. Timmons and Jupiter began throwing money out of their coat pockets, then jumped out of the car. Hines said she did not know that her son had any money in his j acket, but speculated that he might have picked up some of the money that was scattered all over the car.

1. Hines asserts that the evidence was insufficient to support her convictions for armed robbery, contributing to the delinquency of a minor and concealing the identity of a motor vehicle, and thus she contends that the trial court erred in denying her motion for directed verdict. We disagree.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence. Further, we neither resolve conflicts in the evidence nor assess witness credibility, but merely determine the legal sufficiency of the evidence. When an appellant challenges the sufficiency of the evidence to uphold [her] conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation and footnotes omitted; emphasis in original.) Jordan v. State, 320 Ga. App. 265, 266 (739 SE2d 743) (2013). “The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction.” (Citation omitted.) Pippins v. State, 263 Ga. App. 453, 453 (1) (588 SE2d 278) (2003).

And although the evidence did not establish Hines’ direct participation in the crime of armed robbery,

[a] participant to a crime may be convicted although he is not the person who directly commits the crime. A person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime. Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime.

(Punctuation, footnote and emphasis omitted.) Jordan v. State, 281 Ga. App. 419, 422 (1) (636 SE2d 151) (2006). See also OCGA § 16-2-21. The question of whether Hines was a party to the armed robbery in this case was for the jury to resolve. Buruca v. State, 278 Ga. App. 650, 652 (1) (629 SE2d 438) (2006).

Further, the testimony of a single witness is generally enough to establish a fact, unless the witness, like Timmons, is an accomplice to the crime, in which case such testimony must be corroborated. See OCGA § 24-4-8. Although

[a] defendant may not be convicted on the uncorroborated testimony of an accomplice!,] • • • only slight evidence of a defendant’s identity and participation from an extraneous source is required to corroborate the accomplice’s testimony and support the verdict. Sufficient corroboration may consist of either direct or circumstantial evidence which connects the defendant with the crime, tends to show his [or her] participation therein, and would justify an inference of the guilt of the accused independently of the testimony of the accomplice.

(Citations omitted.) James v. State, 316 Ga. App. 406, 408 (1) (730 SE2d 20) (2012). Even “[t]he accused’s own statement can serve to corroborate his accomplice’s inculpatory testimony.” (Citations and punctuation omitted.) Id. at 408-409 (1). And “whether the State presents sufficient corroboration of the accomplice’s testimony is peculiarly a matter for the jury to determine.” (Citation and punctuation omitted.) Steed v. State, 273 Ga. App. 845, 848 (2) (616 SE2d 185) (2005).

(a) The evidence was sufficient to support Hines’ conviction as a party to the crime of armed robbery. More than slight independent evidence — including Hines’ own statement, the officers’ testimony and the evidence found in the car — corroborated Timmons’ version of events. And “the fact that [Hines herself] testified at trial to a different version of events does not change the result; the jury here was entitled to disbelieve [Hines’] version of the facts.” (Citation and punctuation omitted.) Feldman v. State, 282 Ga. App. 390, 391 (638 SE2d 822) (2006). Her testimony, in fact, contradicted portions of her earlier statement to police, and the jury was entitled to discredit her attempts to explain these discrepancies.

(b) The evidence was also sufficient to support Hines’ convictions for concealing the identity of a car under OCGA § 40-2-7. Timmons testified that Hines directed her son to remove the car tag before they returned to the store, and this testimony was corroborated by Hines’ statement to police that the tag was removed after they went to the store as well as the tag’s presence on the back seat of the car.

(c) The same evidence supports Hines’ conviction of contributing to the delinquency of her minor son by knowingly and willfully encouraging him to remove the car’s tag to conceal its identity.

The jury also was authorized by the evidence to find that Hines was guilty beyond a reasonable doubt of the second count of contributing to the delinquency of a minor by conspiring with her son to commit armed robbery. See OCGA § 16-12-1 (b) (4). “Conduct which discloses a common design, even without proof of an express agreement between the parties, may establish a conspiracy.” (Citation omitted.) Heard v. State, 287 Ga. 554, 559-560 (5) (697 SE2d 811) (2010). “Presence, companionship and conduct before and after the commission of the alleged offenses may be considered by the jury and are circumstances which may give rise to an inference of the existence of a conspiracy.” (Citations and punctuation omitted.) Burnette v. State, 241 Ga. App. 682, 683-684 (1) (527 SE2d 276) (1999). The jury was authorized to conclude that Hines involved her son in such conspiracy by taking him into the store to check it out before the robbery and by directing him to remove the car tag before they returned to the store to commit the robbery. Moreover, her son was discovered after the crime with a gun at his feet and a portion of the proceeds of the robbery in his jacket.

Accordingly, the trial court properly denied Hines’ motion for directed verdict.

2. Hines asserts that the trial court erred in denying her motion to strike Juror Larson on the ground that she was Police Officer Standards and Training (“P.O.S.T.”) certified. She further asserts that the trial court abused its discretion in removing Juror Vuong from the jury because he was distracted by pre-existing business concerns.

(a) “Whether to strike a juror for cause lies within the sound discretion of the trial court.” (Citation omitted.) Thomas v. State, 314 Ga. App. 124, 127 (3) (723 SE2d 5) (2012).

An appellate court should not substitute its own finding for that of the trial court, since it must pay deference to the trial court’s determination. This deference encompasses the trial court’s resolution of any equivocations and conflicts in the prospective jurors’ responses on voir dire.

(Citation and punctuation omitted.) Id.

Voir dire was not transcribed, but counsel for both Hines and Jupiter put the basis for their motions to strike Juror Larson on the record. Jupiter’s attorney asserted that Juror Larson testified that she was a P.O.S.T. certified peace officer. But the trial court corrected counsel’s description of the juror’s testimony, noting that she testified that she was a former corrections officer, not a current peace officer and that she worked in private security. The trial court said that Juror Larson testified that she had no arrest powers, although she retained her P.O.S.T. certification.

Although Hines asserts that the trial court abused its discretion in failing to strike Juror Larson, the Supreme Court of Georgia has already decided this issue unfavorably to Hines, holding that a trial court does not err

by failing to excuse a member of the jury pool who was certified as a Georgia Peace Officer. The prospective juror was working as a security guard at a convention center. In order to be subject to dismissal for cause, a member of the venire who is a law enforcement officer must be a full-time sworn police officer with arrest powers.

(Citation omitted.) Robinson v. State, 278 Ga. 836, 838 (4) (607 SE2d 559) (2005). See also Prince v. State, 277 Ga. 230, 235 (3) (587 SE2d 637) (2003).

(b) Hines also asserts that the trial court erred in dismissing Juror Vuong because he was distracted by his need to make a flight to St. Louis on the fifth day of trial. Under OCGA § 15-12-172,

[i]f at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.

(Emphasis supplied.) “The trial court must exercise its discretion in making the substitution, and is free to do so even after deliberations have begun.” (Citation omitted.) Williams v. State, 272 Ga. 828, 830 (5) (537 SE2d 39) (2000). “On appeal, the question is whether evidence supports the trial court’s determination.” (Citations and punctuation omitted.) Butler v. State, 290 Ga. 412, 417-418 (5) (721 SE2d 876) (2012).

When the issue was first brought to the trial judge’s attention around 10:30 a.m. on a Friday, at the beginning of the second day of jury deliberations, he questioned the foreperson who stated that Juror Vuong was “a little itchy” and was trying to speed up the decisional process. The trial court then questioned Juror Vuong who said that he either had to leave around noon to make the flight to St. Louis for a trade show or drive nine to ten hours overnight to get there by the next day. He stated that the staffing at his company was lean, so apparently no one was available to take his place. The juror said that he told the attorneys about this flight during voir dire. Nevertheless, Juror Vuong felt that he could continue deliberating for a while longer, so the trial court sent him back to the jury room with the instruction that he should notify the bailiff “[i]f it gets to the point where you’re concerned about your flight and it starts to distract you.”

Later, around noon, Juror Vuong notified the bailiff of his continuing time pressure, and the trial judge questioned him again. Juror Vuong said that he was “a little pissed” by other jurors talking about the same thing over and over again, and he ultimately admitted that his impending flight was distracting him. Both the prosecution and counsel for Jupiter deferred to the trial court’s judgment on a decision whether to excuse Juror Vuong, but Hines’ attorney objected, asserting that the juror’s civic duty should take priority over his job. The trial judge decided to excuse Juror Vuong and substitute the alternate juror based upon Vuong’s admission that he would be distracted and that he was irritated with the other jurors for their repetitive discussions. The trial court concluded that “this person would be worried about his flight and his work and his job and not giving this case his full attention.”

We find no abuse of discretion, and we also note that Hines “does not contend that the alternate juror who replaced [Juror Vuong] was not qualified to serve.” (Citations and punctuation omitted.) Butler v. State, 290 Ga. at 418 (5). See White v. State, 287 Ga. 713, 718-719 (2) (699 SE2d 291) (2010) (no abuse of discretion in dismissing juror who was tardy to court and who spoke with a member of victim’s family in what appeared to be an attempt to be dismissed in order to make a flight for a family trip); Rivera v. State, 282 Ga. 355,361 (7) (647 SE2d 70) (2007) (no error in dismissing juror who had an ongoing hardship with arranging childcare). Cf. McClain v. State, 267 Ga. 378, 381 (1) (c) (477 SE2d 814) (1996) (no abuse of discretion in excusing juror who stated that her responsibilities as publicity chairman for an upcoming fiftieth anniversary reunion of a worldwide organization might distract her from her duties as a juror); Kirkland v. State, 247 Ga. App. 526, 527 (2) (543 SE2d 791) (2000) (no abuse of discretion in excusing juror with work commitments that no one else could perform), reversed on other grounds, Kirkland v. State, 274 Ga. 778 (560 SE2d 6) (2002), and overruled on other grounds in Ward v. State, 288 Ga. 641, 647 (4) (706 SE2d 430) (2011).

3. Hines contends that the trial court erred in allowing Timmons to speculate about Hines’ knowledge of the robbery. But Hines failed to identify or quote the testimony by Timmons that she contends was speculative and provided no record citation, either on appeal or in the trial court below. We note that “[Hines] bears the burden of proving error affirmatively by the record. It is not the function of this court to cull the record on behalf of a party in search of instances of error.” (Citations and punctuation omitted.) Wade v. State, 305 Ga. App. 382, 383 (1) (700 SE2d 827) (2010).

The State, however, points to certain portions of Timmons’ testimony that appear to fit within Hines’ general description, and we will address that testimony. On one occasion, Jupiter’s counsel asked Timmons whether Hines and her son went into the Lucky store and “cased” it before the robbery, and Timmons responded, “That’s what I thought they did[,]” although he then admitted that he could not really say what they did. Hines’ counsel raised no objection to this testimony, however, so any error in this regard is waived. Brooks v. State, 281 Ga. 514, 516 (2) (640 SE2d 280) (2007).

On another occasion, the prosecutor asked Timmons on re-direct whether “based on [Hines’] actions and what she said to you, do you think she was aware of what was going on?” Timmons responded in the affirmative, and Hines’ counsel objected on the ground that the question called for speculation. The trial court overruled the objection. Later on re-cross, Hines’ counsel asked Timmons, “So when you say [the robbery plans were] already established, you’re just assuming that my client was involved simply because she showed up there in a car with Mr. Jupiter, right?” Timmons responded, ‘Yes sir. She knew something about it.”

“Admission of evidence is a matter which rests largely within the sound discretion of the trial court and an appellate court will not interfere with its rulings absent abuse of that discretion.” (Citation and punctuation omitted.) Sailor v. State, 265 Ga. App. 645, 648 (2) (595 SE2d 335) (2004). Nevertheless,

[l]ay witnesses may state their opinion only when it is based upon their own observations, and their opinions are admissible only when it is necessary in order for a witness to convey those same observations to the jury. A lay witness may not state his opinion when the facts relied upon by the witness can be clearly described for the jury, and the jury can rely upon those same facts and reach its own opinion. Otherwise, by stating an opinion the jury could reach for itself, the lay witness is deemed to have invaded the jury’s exclusive province.

(Citations and punctuation omitted.) Hines v. State, 276 Ga. 491, 494 (4) (578 SE2d 868) (2003). Even assuming that the trial court erred in overruling Hines’ objection, however, we find that any such error would be harmless in light of the other evidence in the case. The response Timmons gave to the prosecution and to Hines’ counsel on re-cross was essentially the same: Timmons believed that Hines was aware of the crime before the robbery occurred. That Timmons held this belief was apparent from his testimony that Hines tried to talk to him about the robbery beforehand and that she handed him the gun he used to commit the crime. No error exists when the contested evidence is merely cumulative of other relevant evidence. Quarles v. State, 285 Ga. App. 758 (647 SE2d 415) (2007). We find no ground for reversal.

4. Hines next asserts that the prosecutor made prejudicial and improper comments during closing argument. Although the closing arguments were not transcribed, Hines’ counsel later placed the trial court’s overruling of his earlier objection on the record. He asserted that it was “very improper for the State ... to tell the jury, and he did it twice, that if they can’t reach a decision, then the State would just have to impanel another jury.” He asserted “that’s subtracting from the jury, their responsibility. [It’s] like telling the jury[,] look, if you can’t decide, we’re just going to have to do this again.” The trial court corrected counsel, however, by stating that the prosecutor had only told them once “that if they couldn’t decide it that another jury would be brought in at a later time to decide it.”

But “absent a transcript, this court can only presume that this portion of the trial was conducted in a regular and proper manner. When an appellant seeks to prove error in the trial proceedings, the burden is on him to produce a transcript of the allegedly erroneous matter.” (Citations and punctuation omitted.) Powell v. State, 198 Ga. App. 509, 512 (2) (402 SE2d 108) (1991). Hines failed to meet this burden.

And even if we were to find that Hines’ counsel preserved the issue for appellate review, no basis exists for reversal. At trial, Hines’ counsel objected on the ground that the prosecutor’s argument diminished the jury’s responsibility to decide the case, but on appeal Hines asserts that the comments “were improper in that they encouraged the jury, not to ‘decide’the case, but to ‘convict,’otherwise another jury would be empanelled to ‘convict.’ ” Thus while Hines objected to the prosecutor’s argument, she did not object on the ground she now asserts. “To preserve an objection upon a specific ground for appeal, the objection on that specific gro'und must be made at trial, or else it is waived.” (Citation and punctuation omitted.) Scoggins v. State, 306 Ga. App. 760, 762 (1) (703 SE2d 356) (2010). Accordingly, Hines’ claim has been waived and presents no basis for reversal on appeal.

5. Hines also takes issue with the trial court’s charge to the jury on the law regarding party to a crime, and the trial court’s failure to charge the jury on knowledge.

(a) Hines asserts that the trial court erred in charging the jury regarding the law of party to a crime because the State did not submit the charge in writing until the third day of trial in violation of Uniform Superior Court Rule (“USCR”) 10.3. But as the State correctly notes, “it has been repeatedly held that... a jury charge may be given on . . . parties to a crime even though a defendant is not indicted under those theories.” (Citations omitted.) Huey v. State, 263 Ga. 840, 842 (3) (439 SE2d 656) (1994). And we find that the trial court would have been authorized to instruct the jury sua sponte on the issue because the evidence in this case authorized such a charge, regardless of whether the State submitted a timely request. See Williams v. State, 290 Ga. 533, 538 (2) (c) (722 SE2d 847) (2012) (court may charge jury sua sponte on party to a crime); Gagnon v. State, 240 Ga. App. 754, 755 (1) (525 SE2d 127) (1999) (USCR 10.3 provides no express penalties for a violation of the rule).

(b) Hines also contends that the trial court erred in failing to instruct the jury on “knowledge.” Hines’ trial attorney did not submit any written charge requests, and she does not specifically identify the point of law or any language she asserts the trial court should have charged. But we will assume, arguendo, that Hines is referring to the pattern jury charge on knowledge in the context of the law on party to a crime. Because Hines’ trial attorney made no objection and raised no exception to the trial court’s charge on this ground, Hines failed to preserve this objection for appellate review, and she is entitled to reversal only if the jury instruction constituted “plain error.” OCGA § 17-8-58 (b); State v. Kelly, 290 Ga. 29, 31 (1) (718 SE2d 232) (2011).

[T]he appellate courts will review properly enumerated and argued claims of jury instruction error regardless of whether the appealing party specifically casts the alleged infirmity as “plain error,” although failing to articulate how the alleged error satisfies the high standards required to establish plain error increases the likelihood that an appellate court will reject the claim.

(Citations and punctuation omitted.) Stuart v. State, 318 Ga. App. 839, 840 (734 SE2d 814) (2012). Here, Hines makes absolutely no effort to articulate how the omission of a charge on knowledge satisfies the plain error standard in this case.

In conducting a plain error review, we consider first whether the record establishes an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. If so, we then consider whether the error was clear or obvious, whether it likely affected the outcome of the trial, and whether we should exercise our discretion to remedy the error.

(Citations and punctuation omitted.) Id. at 840-841.

Addressing the first step in the plain error analysis, we are mindful that “[i]t is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Citation and punctuation omitted.) Vergara v. State, 287 Ga. 194, 198 (3) (b) (695 SE2d 215) (2010). The trial court in this case instructed the jury that the defendant is presumed innocent, that the State has the burden to prove each element of the crime beyond a reasonable doubt, that intent is an essential element of any crime, that a defendant is not presumed to have acted with criminal intent, and that intent may be shown in various, specified ways. Additionally, the trial court defined reasonable doubt and charged the jury on law regarding mere suspicion and mere presence. We find, therefore, that the trial court’s charge covered substantially the same principles as the pattern jury charge on knowledge. See Copeland v. State, 263 Ga. App. 776, 780 (2) (589 SE2d 319) (2003). See also Smallwood v. State, 296 Ga. App. 16,25 (4) (e) (673 SE2d 537) (2009), abrogated on other grounds, Stephens v. State, 289 Ga. 758, 760 (1) (a), n. 2 (716 SE2d 154) (2011). Accordingly, we find no basis for reversal on this ground.

6. Hines also asserts that the trial court erred in giving the jury an Allen charge when it announced it was deadlocked, that the Allen charge given by the trial court was unconstitutional, and that the trial court erred in denying her motions for a mistrial in connection with the charge.

“When a jury reports difficulty in reaching a unanimous verdict, whether to give an Allen charge is committed to the sound discretion of the trial court, and we review the decision to give such a charge only for an abuse of discretion.” (Citations omitted.) Contreras v. State, 314 Ga. App. 825, 826 (2) (726 SE2d 107) (2012). See also Johnson v. State, 278 Ga. 136, 138 (4) (598 SE2d 502) (2004); Sears v. State, 270 Ga. 834, 838 (1) (514 SE2d 426) (1999). As this Court has previously explained, “the giving of an Allen charge amounts to an abuse of discretion when the terms of the charge itself, or the circumstances in which it is given, are coercive, so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.” (Citation and punctuation omitted.) Contreras v. State, 314 Ga. App. at 826 (2).

The jury in this case began deliberating on the fourth day of trial at approximately 1:30 p.m. and ended at 3:00 p.m. when the jury was sent home due to a prior commitment by the trial court. Deliberations began again the next day at 9:00 a.m. and continued for approximately three hours and twenty minutes until the trial judge released Juror Vuong. The jury then broke for lunch and resumed deliberations at approximately 1:30 p.m. after the trial court instructed them that they had to begin their deliberations from the beginning with the alternate juror. At approximately 3:35 p.m., the jury sent the judge a note indicating that they had reached a verdict on all counts as to one of the two defendants, but they were “[h]ung on [the] other defendant.”

The trial judge indicated that he was inclined to give an Allen charge to encourage the jury to reach a verdict on the other defendant, and neither the State nor Jupiter’s attorney had any objection to that procedure. Hines’ attorney, however, asked the trial court to receive the verdict on the one defendant and to declare a mistrial as to the other. The trial court denied the motion for mistrial. The jury had been deliberating less than two hours with the alternate juror, and the trial judge determined that was an insufficient time to declare the jury hung and grant a mistrial in a case that took four days to try.

After confirming with the foreperson that the jury was deadlocked, the trial court then gave a charge that substantially tracked the language of the pattern jury charge. Hines’ counsel objected to the charge on the ground that it was coercive, and again moved for a mistrial, which the trial court denied. The jury returned with a verdict as to both defendants at 5:03 p.m. The trial court polled the jury, and each juror confirmed the verdict and that it was freely and voluntarily given.

We find no abuse of discretion in the trial court’s decision to deny Hines’ motions for mistrial and to give an Allen charge under the facts of this case. See Sears v. State, 270 Ga. at 838 (1) (no abuse of discretion in requiring further deliberation where jury first indicated it was deadlocked after nine hours, and again after three more hours); Todd v. State, 243 Ga. 539, 542 (3) (255 SE2d 5) (1979) (no abuse of discretion in denying mistrial and giving Allen charge after four hours; judge “not bound to accept the jury’s feeling that it is hopelessly deadlocked”); Pendley v. State, 283 Ga. App. 262 (641 SE2d 174) (2006) (no abuse of discretion in giving Allen charge and denying mistrial where jury had been deliberating less than two days).

Nor do we find that the charge was impermissibly coercive. Hines has not established that the charge deviated from any legal rule. See Scott v. State, 290 Ga. 883, 888 (6) (725 SE2d 305) (2012) (no error when defendant failed to identify any language in pattern charge as given was potentially coercive). And the fact that the charge was given after two hours of deliberation with the alternate juror and approximately seven hours of total deliberation and a verdict was returned one-and-a-half hours later does not render it coercive. See Sharpe v. State, 288 Ga. 565, 567 (5) (707 SE2d 338) (2011) (length of deliberations alone cannot make a charge coercive). See also Gamble v. State, 291 Ga. 581, 584 (5) (731 SE2d 758) (2012) (pattern charge not coercive when given after two hours of deliberation and verdict returned less than one hour later).

Accordingly, we find no basis for reversal in connection with the Allen charge.

7. Hines also asserts that she received ineffective assistance of trial counsel.

To establish ineffective assistance, [Hines] must show both that [her] trial counsel’s performance was deficient and that this deficiency prejudiced [her] defense. [Hines] must establish both elements; if we determine that one element is missing we need not consider whether the defendant has established the other element.

(Citations omitted.) Hinton v. State, 290 Ga. App. 479, 481 (2) (659 SE2d 841) (2008). See also Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

Hines alleges six ways in which she asserts that her trial counsel was deficient and asserts in conclusory fashion that “[i]t cannot be said that such errors and omissions were trial strategy.” But neither on appeal nor below did Hines even assert, much less make any attempt to establish, that these alleged errors and omissions prejudiced her defense. Accordingly, Hines has failed to carry her burden of establishing her claim of ineffective assistance of counsel. Mathis v. State, 299 Ga. App. 831, 841 (4) (684 SE2d 6) (2009) (“[Defendant] does not allege that he was prejudiced by trial counsel’s allegedly deficient performance, and therefore, under the Strickland test, his claim for ineffective assistance of counsel fails.”).

Decided March 27, 2013

Cinque M. Axam, for appellant.

Tracy Graham-Lawson, District Attorney, Billy J. Dixon, Elizabeth A. Baker, Assistant District Attorneys, for appellee.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

       The trial court merged the aggravated assault charge with the armed robbery charge for sentencing.

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

       Hines testified that her son was 12 years old at the time of the incident.

       Jupiter later turned himself in to police.

       Prior to Hines’ testimony, the store clerk testified that a 12-year-old boy came into the store alone and bought an ice cream that night before the robbery. He did not remember that a woman was with him.

       The law regarding the sufficiency of circumstantial evidence does not apply in this case because Hines’ convictions were supported by both direct and circumstantial evidence. See State v. Canup, 300 Ga. App. 678, 682 (2), n. 3 (686 SE2d 275) (2009) (The “reasonable hypothesis” rule codified in OCGA § 24-4-6 “applies only when the evidence against the accused was entirely circumstantial.”) (citation and punctuation omitted; emphasis in original).

       The jury had deliberated only about 1 1/2 hours the day before.

       Although at the time, certain jurors had indicated that they would not change their vote, no indication yet existed that the jury might become deadlocked. The jury foreman told the judge that she believed that the jury could still reach a verdict at that point.

       Hines asserts that her trial attorney requested the pattern jury charge on knowledge, and the attorney stated at the hearing on her motion for new trial that the only thing he would have requested is that the trial court give the complete charge on party to a crime, which includes a knowledge component. But the record indicates that Hines’ attorney neither requested such a charge nor objected when such a charge was not given.

       See Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol. II, § 1.43.10 (stating that the State must prove beyond a reasonable doubt that the defendant knew that the crime was being committed and that he or she knowingly and intentionally participated in or helped in the commission of the crime).

       “The grant or denial of a motion for mistrial is similarly within the sound discretion of the trial court and subject to the same standard of appellate review.” Georgia Communications Corp. v. Horne, 174 Ga. App. 69, 70 (4) (329 SE2d 192) (1985).

       See Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol. II, § 1.70.70.

       Although Hines argues that the trial court should have followed the procedure suggested in this Court’s case of Thornton v. State, 145 Ga. App. 793, 794 (245 SE2d 22) (1978), those procedures are not mandatory, and, in fact, the Court in Thornton found that the trial court’s failure to inquire further into the nature of a jury’s deadlock did not constitute reversible error.


author: PHIPPS, Presiding Judge. DILLARD, Judge,

text:
    A12A2535.
    FIRST CONGREGATIONAL CHURCH v. FULTON COUNTY BOARD OF TAX ASSESSORS.
    (740 SE2d 798)
   PHIPPS, Presiding Judge.

First Congregational Church appeals the superior court’s summary judgment against it and in favor of the Fulton County Board of Tax Assessors. Specifically, the superior court ruled that certain of First Congregational’s real estate (an income-producing parking lot) did not qualify for an exemption from ad valorem property taxation. We affirm.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “In our de novo review of the grant [or denial] of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.”

The material facts are uncontested. At all times relevant, First Congregational was organized as a tax-exempt entity within the meaning of Section 501 (c) (3) of the Internal Revenue Code. It provided religious and charitable services for its members and the community. First Congregational’s sanctuary building, as well as its other properties, were situated within the same city block of downtown Atlanta.

By 1994, First Congregational owned two parking lots — a “main” lot and another lot located behind the building that housed the sanctuary. First Congregational determined it did not have enough parking spaces on its main lot, however. As a First Congregational board of trustees member explained, a problem faced by “downtown churches ... is that they become landlocked and they can’t provide adequate parking, members were parking on the street and having to pay.”

Thus, in May 1994, First Congregational purchased the land parcel at issue (“Property”) for $250,000; it was located across the street from the sanctuary building. According to the board member, “[First Congregational] bought it for the express purpose of creating parking.” Within four months of the purchase, First Congregational tore down the only building situated on the Property, created thereon a paved parking lot with sixty-four parking spaces, and entered into the first of a series of parking contracts with various private companies.

The contract relevant here was executed in 2004. First Congregational (as “Lessor”) entered a “Parking Lot Lease Agreement” with Central Parking System of Georgia, Inc. (as “Lessee”), which covered the “Term” commencing January 3,2005 and ending January 2,2010. The Parking Lot Lease Agreement provided that “Lessor, for and in consideration of the rents ... hereby leases and rents the [Property] to Lessee”; it provided that “Lessee shall use, occupy and operate the [Property] throughout the Term of this Lease for the parking of automobiles only.”

As First Congregational points out, the Parking Lot Lease Agreement provided free parking for its parishioners, guests, and specified others as follows. One provision stated: “Lessee’s operation hours and days shall exclude Sundays, Thanksgiving and Christmas, during which times and days, the Lessor shall have exclusive use of the [Property].” Another provision stated: “Lessor shall have exclusive use of seven (7) reserved parking spaces adjacent to the Church for use by Church personnel, at no cost to Lessor.”

Additionally, the Parking Lot Lease Agreement required the Lessee to “make every reasonable effort to provide at no cost to Lessor or its parishioners and guests” accommodations such as: (i) parking at “funerals and special occasions (weekends and evenings only for special occasions), upon giving Lessee one day’s advance notice”; (ii) “occasional” night parking for “meetings and special events”; and (iii) “temporary’ parking for “Lessor’s contractors and service people from time to time.” These free parking spaces were to be located, as the Parking Lot Lease Agreement specified, either “on the [Property] or at another comparable parking facility managed or owned by Lessee in the immediate vicinity of the [Property].”

Pursuant to the Parking Lot Lease Agreement, First Congregational received from Central Parking System a yearly amount of $90,000, payable in equal monthly installments of $7,500. In turn, the fees that Central Parking System charged its parking patrons fluctuated, depending on, for example, the availability of other parking options for those conducting business in the area, whether the college in the vicinity was in session, and whether special events were convened nearby. As the board member recounted, First Congregational had always used a third-party company in connection with operating the parking lot on its Property because “parking revenues [are] very variable, it’s up and down, and [First Congregational] wanted a fixed amount... a fixed rate so [First Congregational] could count on that and budget that income for its operations budget.” First Congregational used the monies paid to it under the Parking Lot Lease Agreement to support its services and operations, including maintenance and upkeep of its buildings. In 2010, First Congregational sold the Property for $1,225,000.

This case concerns tax year 2008. First Congregational submitted an application for exemption from ad valorem taxation for the Property, describing the Property as a paved parking lot that was open to the public, and claiming that the Property was “used for charitable purposes.” Regarding a question on whether “income or fees [were] received for the use of any part of this [P]roperty,” First Congregational responded, ‘Tes, the Church leases the parking lot to an Operator and receives lease income as well as uses parking lot for its Services.”

First Congregational’s application was denied by the Fulton County Board of Tax Assessors. The Fulton County Board of Equalization likewise concluded that the Property did not qualify for tax exempt status in 2008. Thereafter appearing before the superior court, First Congregational and the Fulton County Board of Tax Assessors presented on cross-motions for summary judgment the question whether the Property qualified for tax-exempt status in 2008 under either of two paragraphs of OCGA § 48-5-41 (a), as discussed below.

First Congregational claimed that the Property was exempt under: (i) OCGA § 48-5-41 (a) (2.1), pertaining to “places of religious worship,” and/or (ii) OCGA § 48-5-41 (a) (4), pertaining to “institutions of purely public charity.” Fulton County countered that First Congregational’s use of the Property to secure income pursuant to the Parking Lot Lease Agreement with a third-party commercial entity disqualified the Property from tax-exempt status. As Fulton County’s representative deposed, “The property [was] being leased to a commercial entity for use in a commercial enterprise. . . . The property was operated as a commercial parking facility, commercial parking lot.” Hence, Fulton County cited, inter alia, the restriction set forth in OCGA § 48-5-41 (d) (1), which states that, except as provided therein, the exemption provisions relied upon by First Congregational “shall not apply to real estate or buildings which are rented, leased, or otherwise used for the primary purpose of securing an income thereon.” And according to Fulton County, no exception was invoked.

The superior court agreed with Fulton County, determining that “First Congregational had leased the parking lot to a commercial enterprise for the primary purpose of securing income” and that, under OCGA § 48-5-41 (d), the use ofthe Property disqualified it from tax-exempt status (having also determined that no exception to that Code provision was invoked). Further, the superior court rejected First Congregational’s alternate ground for summary judgment, which alleged that Fulton County had granted ad valorem tax exemptions to other churches for their income-producing parking lots. The superior court thus granted the summary judgment motion filed by Fulton County and denied the cross-motion filed by First Congregational.

1. As an initial matter, we recognize that these general principles govern. “Taxation is the rule; exemption from taxation is the exception.” “[C]laims for exemption from taxation should generally be construed in favor of the State and against the taxpayers.” Therefore, “we strictly construe taxation statutes, and we will not find an exemption unless it is clear that the legislature intended such exemption.” “[T]he facts of each case must be viewed as a whole and all of the circumstances surrounding the institution [of purely public charity or the place of religious worship] must be considered.”

2. First Congregational contends that the superior court erred by concluding that neither the tax exemption for places of religious worship nor the tax exemption for institutions of purely public charity applied to its Property. First Congregational charges the superior court with misapplying the two paragraphs of OCGA § 48-5-41 (d), analyzed below.

(a) Paragraph (1) of that subsection pertinently provides:

Except as otherwise provided in paragraph (2) of this subsection, this Code section... shall not apply to real estate or buildings which are rented, leased, or otherwise used for the primary purpose of securing an income thereon and shall not apply to real estate or buildings which are not used for the operation of religious, educational, and charitable institutions. . . ,

First Congregational cites evidence that it had purchased the Property for the purpose of creating a parking lot, and that after it converted the Property into a paved parking lot, it indeed used the Property for overflow parking for its parishioners and guests attending religious activities or obtaining charitable services. First Congregational acknowledges that it derived income from the Property by way of its contract with a third party, but points out that the income received by it (as opposed to whatever income was received by Central Parking System) was used to support its religious services and charitable pursuits. In light of these circumstances, First Congregational maintains that the Property’s “primary” use was the provision of overflow parking, that income production of $90,000 yearly was an “incidental” use of its Property, and that under Nuci Phillips Mem. Foundation v. Athens-Clarke County Bd. of Tax Assessors, its Property was entitled to the claimed tax exemptions.

In Nuci Phillips Mem. Foundation, the Supreme Court of Georgia explained that, under OCGA § 48-5-41 (d) (l), whether a tax exemption was available for an income-producing property required a determination of the “primary purpose” of the property. In that case, a foundation had applied for a tax exemption for its facility, a “building [that] provided] a safe haven for musicians, or others, who [were] coping with mental illness.” At its facility, the foundation “rent[ed] out rehearsal space as well as space for private birthday parties and wedding receptions.” When the foundation sought an exemption as an institution of purely public charity, the taxing authority cited such income-producing activities as disqualifying the facility from tax-exempt status. However, the Supreme Court determined, “The activities cited by the [taxing authority], such as rehearsal space and party rentals are an incidental use of the property.” The Court took into account that “[m]ost activities that take place on the property, such as the professional counseling assistance program, the provision of group meeting space for Survivors of Suicide and other groups, and the career resources board, are at the core of the organization’s charitable purposes.” Given those circumstances, the Court concluded:

The Foundation is not disqualified from the tax exemption under the restrictions in OCGA § 48-5-41 . . . (d) (1). . . . Although the organization periodically rents out part of its building to third parties, the primary purpose of the building is not to raise income but to provide services for those seeking mental health assistance. Any income raised is incidental to the primary use of the property.

Unlike the entity in Nuci Phillips Mem. Foundation, which “periodically rent[ed] out part of its building to third parties,” and which entity otherwise used its property for activities that were “at the core of the organization’s charitable purposes,” First Congregational used almost the entirety of its Property (reserving exclusive use of only seven of the sixty-four parking spaces) approximately eighty-five percent of the time (six days of every week, save Thanksgiving Day and Christmas Day) to secure income pursuant to the Parking Lot Lease Agreement. As a result, most activities that took place on First Congregational’s Property — essentially leasing its Property to a third-party, commercial entity for the designated purpose of the parking of automobiles for the general public — were patently not at the core of First Congregational’s religious or charitable purposes. Such activities, unlike the ones at issue in Nuci Phillips Mem. Foundation, did not amount to an incidental use of the property. Because the circumstances underlying this case are inapposite to those underlying Nuci Phillips Mem. Foundation, First Congregational’s reliance upon that case is misplaced.

First Congregational points out that, even for those six days of every week (Monday through Saturday, save Thanksgiving Day and Christmas Day), the Parking Lot Lease Agreement contained certain other provisions for accommodating free parking for its parishioners, guests, and other specified individuals. But that argument is unavailing. None of those cited provisions required Central Parking System to provide free parking to any of those persons; Central Parking System was obligated only to “make every reasonable effort” to do so; and even if free parking could be provided, Central Parking System was not required to provide for such upon the Property; the Parking Lot Lease Agreement provided that “another comparable parking facility” would suffice. Additionally, the cited provisions contemplated only sporadic parking: at “funerals and special occasions,” “occasional” night parking for “meetings and special events,” and “temporary parking.” What is more, First Congregational has cited no evidence regarding the extent to which its parishioners, guests, or other specified individuals parked free upon the Property on those six days (Monday through Saturday).

Given the circumstances here — in particular, the Parking Lot Lease Agreement and its impact upon First Congregational’s use of the Property, we conclude that the Property was “real estate . . . rented, leased, or otherwise used for the primary purpose of securing an income thereon,” as contemplated by OCGA § 48-5-41 (d) (l). There is no merit in First Congregational’s contention that the superior court misapplied that paragraph.

(b) Nor is there any merit in First Congregational’s contention that the superior court erred by finding inapplicable OCGA § 48-5-41 (d) (2), the exception to OCGA § 48-5-41 (d) (1) that First Congregational claimed was invoked. OCGA § 48-5-41 (d) (2) states:

With respect to paragraph (4) of subsection (a) of this Code section, a building which is owned by a charitable institution that is otherwise qualified as a purely public charity and that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code and which building is used by such charitable institution exclusively for the charitable purposes of such charitable institution, and not more than 15 acres of land on which such building is located, may be used for the purpose of securing income so long as such income is used exclusively for the operation of that charitable institution.

According to its plain and unambiguous terms, this paragraph limits “land” to that upon which a qualifying building is located.

To be sure, the language of OCGA § 48-5-41 (d) (2) set forth above became effective as part of a 2007 amendment. Prior to that amendment, the paragraph did not include the limiting language with respect to “land”; it pertinently provided instead:

With respect to paragraph (4) of subsection (a) of this Code section, real estate or buildings which are owned by a charitable institution that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code and used by such charitable institution for the charitable purposes of such charitable institution may be used for the purpose of securing income so long as such income is used exclusively for the operation of that charitable institution.

Had the General Assembly intended for OCGA § 48-5-41 (d) (2), as amended in 2007, to apply to land other than that upon which a qualifying building is located, it would not have included the limiting language, which plainly and unambiguously states otherwise.

Correctly, the superior court found that “the provision references a building and there is no building on the parcel/lot,” then ruled that this exception to OCGA § 48-5-41 (d) (1) did not apply so as to exempt First Congregational’s Property from ad valorem taxation.

The cases cited hy First Congregational, Marathon Investment Corp. v. Spinkston and Elder v. Trustees of Atlanta Univ., do not provide for an outcome in its favor. Those cases were decided prior to the 2007 amendment to OCGA § 48-5-41 (d) (2); moreover, the issues resolved therein did not concern income-producing real estate.

(c) First Congregational complains that, if the superior court’s summary judgment rulings are not reversed, “religious institutions will be forced to let their parking facilities sit fallow or be taxed, which would wastefully prohibit the public from parking on those lots during the work week.”

However, as recognized above as governing principles: taxation is the rule; exemption from taxation is the exception; and we will not find an exemption unless it is clear that the legislature intended such exemption. Moreover, “exemptions are made, not to favor the individual owners of property, but in the advancement of the interests of the whole people.” Whether and the extent to which an exemption applies are matters of policy judgment reserved for the legislature.

The evidence showed that, by procuring the land parcel, then converting it into a parking lot, First Congregational increased available off-street, free parking spaces for its parishioners and guests. But the evidence further showed that First Congregational, determined to secure a fixed amount of income, placed its Property under contract so that (during the time period relevant here) 90 percent of its Property would be used by a third-party commercial enterprise approximately 85 percent of the time to compete in the business of public paid parking in a congested area of downtown Atlanta. By doing so, First Congregational deliberately put its Property

in direct competition with private concerns which are engaged in the same business but enjoy no tax-exemption benefit. If our system of private enterprise is to survive, government must not by exempting competitors of free enterprise from taxes aid in destroying it by such unfair competition.

In balancing the competing policies at issue here, our General Assembly has determined that, except under circumstances not shown here, no exemption from ad valorem property taxation is permitted for places of religious worship or for institutions of purely public charity, if the “real estate . . . [is] rented, leased, or otherwise used for the primary purpose of securing an income thereon.” Because First Congregational’s Property constituted such real estate, First Congregational’s complaint is unavailing.

3. First Congregational points to evidence that Fulton County has granted tax exemptions to other churches in the Atlanta area for their income-producing parking lots. Merely citing 1983 Ga. Const. Art. VII, Sec. I, Par. Ill (a), it makes the conclusory assertion that the superior court’s grant of summary judgment to Fulton County “[violates the Constitutional Rule of Uniformity in Taxation.”

First Congregational’s assertion is unaccompanied by any meaningful legal argument. Furthermore, the conclusory assertion fails to demonstrate how First Congregational was entitled to a ruling allowing for an exemption from ad valorem taxation where such is statutorily proscribed. No reversible error has been demonstrated.

Decided March 27, 2013.

Morris, Manning & Martin, Jason P. Wright, John B. Vitale, for appellant.

Cheryl M. A. Ringer, Shalanda M. J. Miller, for appellee.

4. Given the foregoing, there is no merit in First Congregational's claim that it presented undisputed evidence entitling it to summary judgment.

Judgment affirmed.

Ellington, C. J., concurs. Dillard, J., concurs in judgment only.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As such, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited by future parties as binding precedent. See Court of Appeals Rule 33 (a).

That said, I do agree with the majority that these cases are highly fact specific, and that the outcome in this case is largely driven by “the Parking Lot Lease Agreement and its impact upon First Congregational’s use of the Property.” Maj. op. at p. 875. And while I believe the majority ultimately reaches the correct result, I fear that the language employed by the majority in its opinion might be misconstrued in subsequent cases to wrongfully deny charitable organizations tax exemptions that they are lawfully entitled to receive. We leave for another day, then, the question of whether a differently worded parking-lot lease agreement might satisfy the statutory requirements for tax exemption.

       OCGA § 9-11-56 (c).

        Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010) (citation and punctuation omitted); see Norton v. Budget Rent A Car System, 307 Ga. App. 501 (705 SE2d 305) (2010) (“We review the denial of summary judgment de novo, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.”) (footnote omitted).

       According to this individual, the board of trustees was responsible for managing and safeguarding First Congregational’s financial assets.

       Although First Congregational asserts in its brief that it applied for an exemption for tax years 2007, 2008, and 2009, the Board of Equalization’s decision of record is for “TAX YEAR: 2008.” Moreover, counsel for First Congregational acknowledged to the superior court that the ruling (from the Board of Equalization) “only addressed the 2008 tax appeal portion of it.” And the superior court’s order expressly so noted. See generally Hart v. Groves, 311 Ga. App. 587, 588 (1) (716 SE2d 631) (2011) (“This is a Court for correction of errors below, and, in the absence of a ruling by the trial court, this Court has nothing to review.”) (citation and punctuation omitted).

       (Enumerating categories of property exempt from ad valorem property taxes).

       OCGA § 48-5-41 (a) (2.1) (A).

       See OCGA § 48-5-41 (d) (1) (containing language “[ejxcept as otherwise provided in paragraph (2) of this subsection”).

        Thomas v. Northeast Ga. Council, Inc., Boy Scouts of America, 241 Ga. 291, 293 (244 SE2d 842) (1978) (citation and punctuation omitted); see Leggett v. Macon Baptist Assn., 232 Ga. 27, 28 (I) (205 SE2d 197) (1974).

        Johnson v. Wormsloe Foundation, 228 Ga. 722, 728 (2) (187 SE2d 682) (1972) (citation omitted); see Fulton County Bd. of Tax Assessors v. Visiting Nurse Health System of Metropolitan Atlanta, 243 Ga. App. 64, 65 (2) (532 SE2d 416) (2000).

        Visiting Nurse Health System of Metropolitan Atlanta, supra at 67 (3) (footnote omitted).

        Nuci Phillips Mem. Foundation v. Athens-Clarke County Bd. of Tax Assessors, 288 Ga. 380, 385 (1) (703 SE2d 648) (2010) (citations and punctuation omitted) (plurality opinion).

       (Emphasis supplied.)

       Supra.

       (Expressly “excluding paragraph (1) of subsection (a) of this Code section”).

        Nuci Phillips Mem. Foundation, supra at 383 (1) (citing paragraphs (1) and (2) of OCGA § 48-5-41 (d)). While expressly noting that “OCGA § 48-5-41 (d) (1) prefaces its restrictions with the phrase ‘(e)xcept as otherwise provided in ((d)) (2),”’ Nuci Phillips Mem. Foundation, supra at 386-387 (2), the Nuci Phillips Mem. Foundation Court held that “for an institution to be granted a property tax exemption pursuant to OCGA § 48-5-41 (a) (4), it must satisfy [inter alia] OCGA § 48-5-41... (d) (1) and (2).” Nuci Phillips Mem. Foundation, supra at 385 (2). The special concurrence, however, interpreted the noted prefacing phrase as expressly excepting from OCGA § 48-5-41 (d) (l)’s “primary purpose” test the property of a purely private charity used to secure income as provided in paragraph (d) (2). Nuci Phillips Mem. Foundation, supra at 395 (6), 398 (6) (Nahmias, J., concurring specially). But as the special concurrence acknowledged, “the plurality opinion will be [the Supreme Court’s] effective precedent, governing the outcome of future cases raising this issue.” Nuci Phillips Mem. Foundation, supra at 398-399 (8) (Nahmias, J., concurring specially). And at any rate, the facts of the instant case render OCGA § 48-5-41 (d) (2) unavailing to First Congregational. See Division 2 (b), infra.

        Nuci Phillips Mem. Foundation, supra at 385 (2).

       Id. at 380.

       See id. at 386 (2).

       Id. (emphasis supplied).

       Id.

       Id. (emphasis supplied).

       Accord Ga. Osteopathic Hosp. v. Alford, 217 Ga. 663, 668 (124 SE2d 402) (1962) (disallowing tax exemption, where hospital was “engaged principally for non-charitable purposes and apparently chiefly for the benefit of its staff”); Cobb County Bd. of Tax Assessors v. Marietta Educational Garden Center, 239 Ga. App. 740, 744-745 (2) (521 SE2d 892) (1999) (disallowing tax exemption for the Center not because the Garden Center generated income by charging membership dues and renting its facilities for social events, using the income to offset the center’s expenses, but rather because the Center provided substantial benefits, including free use of the Center, only to dues-paying member clubs). Cf. Nuci Phillips Mem. Foundation, supra at 387 (2); Church of God of the Union Assembly v. City of Dalton, 216 Ga. 659, 661-662 (119 SE2d 11) (1961) (explaining that the language “this exemption shallnot apply to real estate or buildings other than those used for the operation of such institution and which is rented, leased or otherwise used for the primary purpose of securing an income thereon” is unambiguous language which means that “if the property is used primarily for . . . purposes other than the operation of the institution, it is not exempt from taxes,” and thus concluding that a “restaurant, located in the main church building . . . , being a part of the church and used primarily for church purposes . . . comes with the exemption conferred by law”); Elder v. Henrietta Egleston Hosp. for Children, 205 Ga. 489 (53 SE2d 751) (1949) (allowing exemption to charitable hospital open to all patients, where 45 percent were not charged due to poverty, 24 percent were partly charged in light of their limited finances, and 31 percent of its patients were charged for all their medical care because they were financially able to pay).

       (Emphasis supplied.)

       See generally Chase v. State, 285 Ga. 693, 695 (2) (681 SE2d 116) (2009) (“[W]here the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.”) (punctuation and footnote omitted).

       Ga. L. 2007, p. 341, § 1; see Nuci Phillips Mem. Foundation, supra at 382 (1).

       Ga. L. 2006, pp. 376, 377, § 1 (emphasis supplied); see Nuci Phillips Mem. Foundation, supra.

       See Nuci Phillips Mem. Foundation, supra at 383 (1) (holding that OCGA § 48-5-41 (d) (2), as amended in 2007, contemplates “any building and not more than 15 acres of land owned by the institution”) (emphasis supplied); see further Nuci Phillips Mem. Foundation, supra at 394 (4) (Nahmias, J., concurring specially) ("The only substantial change made by the 2007 amendment was to limit - to the building owned by the charity and not more than 15 acres on which the building sits - the extent of property that may be used primarily to generate income. The reason for this limitation is not apparent from the statute . . . .”).

       See Collins v. City of Dalton, 261 Ga. 584, 585-586 (4) (a) (408 SE2d 106) (1991) (“Exemption, being the exception to the general rule, is not favored; but every exemption, to be valid, must be expressed in clear and unambiguous terms, and, when found to exist, the enactment by which it is given will not be enlarged by construction, but, on the contrary, will be strictly construed.”).

       281 Ga. 888-889 (1) (644 SE2d 133) (2007) (finding that a land parcel which was “the site of the Church’s auxiliary parking lot, not its actual sanctuary” was exempt as a “place[ ] of religious worship,” reasoning that “the proper use, occupancy and enjoyment of places of religious worship can require that accommodation be provided for the vehicles of the members of the attending congregation”).

       194 Ga. 716, 722 (2) (22 SE2d 515) (1942) (“The issue of tax exemptions should not depend upon whether or not a street separates some buildings from others, all a part of one institution and all used for college purposes.”).

        Marathon Investment Corp., supra at 889 (1); Elder, 194 Ga. at 718, 723 (2) (concerning tax exemption that covered “ ‘all buildings erected for and used as a college,’.. and provided that such property ‘is not used for purposes of private or corporate profit or income’ noting further that the land tracts at issue were either not income-producing or were tracts which the parties had “agreed to be subject to be taxed”).

       See Division 1, supra.

        Collins, supra at 585 (4) (a) (citation and punctuation omitted).

        Perdue v. Baker, 277 Ga. 1, 14 (6) (586 SE2d 606) (2003) (“The core legislative function is the establishment of public policy through the enactment of laws.”) (footnote omitted); Commonwealth Investment Co. v. Frye, 219 Ga. 498, 499 (134 SE2d 39) (1963) (holding that “the legislature, and not the courts, is empowered by the Constitution to decide public policy, and to implement that policy by enacting laws; and the courts are bound to follow such laws if constitutional”).

        United, Hosp. Svc. Assn. v. Fulton County, 216 Ga. 30, 34 (114 SE2d 524) (1960).

       OCGA § 48-5-41 (d) (1).

       See Division 2 (a), supra.

       See Court of Appeals Rule 25.

       See Division 2, supra.

       See Brooks v. Meriwether Mem. Hosp. Auth., 246 Ga. App. 14, 16 (2) (539 SE2d 518) (2000) (determining that appellant failed to preserve for appellate review her contention that she was deprived of due process, where she cited no authority other than the Due Process Clause, nor provided any real argument in support of her contention, except to repeatedly assert that she was being denied due process, even though she mentioned certain facts that suggested she was contending that statute was unconstitutional only as applied to her case); see generally Chapman v. State, 290 Ga. 631, 633 (2) (724 SE2d 391) (2012) (although appellant mentioned in summary fashion numerous instances of what he maintained supported his contention that he was denied a constitutional right, such claims were not pursued by specific legal argument and consequently were deemed to have been abandoned).

       While I do not specifically address each section of the majority’s opinion, this concurrence in judgment only is intended to cover the entirety of the majority opinion.