author: Dillard, Judge.

text:
    A13A2480.
    MILLER COUNTY BOARD OF EDUCATION v. McINTOSH.
    (756 SE2d 641)
   Dillard, Judge.

This dispute arises from the Miller County Board of Education’s (the “Board”) termination of Robert McIntosh’s employment as superintendent of the Miller County Schools. McIntosh sued the Board for breach of contract, and the trial court denied the Board’s motion for summary judgment. The Board then filed an application for interlocutory appeal, which we granted. On appeal, the Board claims that the trial court erred in denying its motion for summary judgment because (1) McIntosh failed to exhaust his administrative remedies before filing suit, and (2) the contract McIntosh claims was breached is void. For the reasons noted infra, we affirm.

The record shows that McIntosh and the Board entered into an employment agreement (the “2010 Employment Agreement”), whereby McIntosh would serve as the superintendent of Miller County Schools, effective December 30, 2010, and terminating on December 30, 2013. On April 16, 2012, the Board and McIntosh entered into a second employment agreement (the “2012 Employment Agreement”) for a term commencing on April 16, 2012, and terminating on April 15, 2015. There do not appear to be, and the parties do not contend that there are, any material differences between the 2010 Employment Agreement and the 2012 Employment Agreement (referred to collectively herein as the “Employment Agreements”), other than McIntosh’s respective terms of employment under those agreements. And under either contract, McIntosh was subject to dismissal or suspension for the same reasons, such as incompetency and insubordination. But prior to any such dismissal or suspension, the Employment Agreements provided that

[b] efore dismissal or termination of contract or suspension, for any period of time, McIntosh shall be given a written statement of charges in sufficient detail to enable McIntosh to determine the nature of the grounds for dismissal or suspension action. McIntosh shall be required to file written response thereto within seven (7) days, setting forth the contentions of McIntosh, and stating distinctly any special defenses. Either party may request a pre-hearing conference for the purpose of simplifying issues and making arrangements for an exchange of witness names and documents and other determinative evidence. Hearing will be held before a disinterested, impartial tribunal of three (3) educators selected by the Board. The tribunal or State Bar member, as the case may be, shall be required to respond to written questions at least five (5) days before the hearing touching on his, her or their impartiality, and relationships to the Board or its attorney.

And by letter dated November 13, 2012, the Board terminated McIntosh’s employment for cause, effective November 15, 2012, informing him that “a Hearing with respect to the termination of your employment will be held before a Board-appointed Tribunal after November 15, 2012 provided that you request a hearing.” This correspondence further provided that “[i]f a hearing is not requested on or before December 7, 2012 by 4:00 p.m., then your right to a hearing shall be deemed waived.”

In a reply dated November 21, 2012, McIntosh responded to the termination letter, maintaining, inter alia, that its allegations were insufficient factually and legally to constitute cause for his termination, asserting his right to a pre-hearing conference, and advising that “we will have to work together to obtain a mutually agreeable tribunal date.” Nevertheless, no tribunal was ever appointed by the Board, and no hearing was ever held. And thereafter, on January 28, 2013, McIntosh sued the Board in superior court for damages arising out of the Board’s alleged breach of the 2012 Employment Agreement. The Board answered McIntosh’s complaint, and, inter alia, moved that the complaint be dismissed for failure to exhaust administrative remedies. In addition, the Board asserted a counterclaim against McIntosh, seeking a declaratory judgment that the 2012 Employment Agreement is void and unenforceable.

The trial court denied the Board’s subsequent motion for summary judgment, but certified its order for immediate review. The Board then filed an application for interlocutory appeal, which this Court granted. This appeal follows.

1. Because the exhaustion of administrative remedies is a threshold requirement for McIntosh to pursue his action in superior court, we will first address that claim. Specifically, the Board maintains that McIntosh failed to exhaust his administrative remedies because his response to the Board’s termination letter was both too late and substantively insufficient. We disagree.

At the outset, we note that “the terms and conditions of employment of a school superintendent by a local school system shall be determined exclusively by the contract between those parties.” This includes, without limitation, “the conditions under and procedures by which that contract may be terminated prior to the end of the term of that contract.” And if a school superintendent is terminated by the local school system, then that superintendent “must exhaust the administrative remedies made available to him under the contract before pursuing a claim in superior court.”

And while the Board asserts that the 2012 Employment Agreement is void, it represented to the trial court (and to this Court during oral argument) that, in such a case, the relationship between the parties is to be governed by the 2010 Employment Agreement. McIntosh agrees with that assessment, so there is no dispute between the parties on this particular point. Thus, for purposes of this appeal, it is ultimately of no consequence that the 2012 Employment Agreement is void, because, as previously noted, the termination provisions of the 2012 Employment Agreement and the 2010 Employment Agreement are identical. It follows, then, that whatever the parties’ position may be as to the viability of the 2012 Employment Agreement, both agree that McIntosh was, nevertheless, employed under a contract (i.e., the 2010 Employment Agreement) that afforded him a termination hearing “before a disinterested, impartial tribunal of three (3) educators selected by the Board.” Additionally, because the Board’s motion for summary judgment was, in substance, a motion to dismiss for McIntosh’s alleged failure to exhaust administrative remedies, we review that ruling “under the de novo standard of review.”

So viewed, under either Employment Agreement, “McIntosh shall be given a written statement of charges” and is “required to file written response thereto within seven (7) days, setting forth the contentions of McIntosh, and stating distinctly any special defenses.” In this respect, the record shows that the Board transmitted the letter containing the written charges by certified mail on November 13, 2012; McIntosh received the letter on November 15, 2012; and McIntosh responded to the Board’s letter by facsimile transmission, certified mail, and regular mail on November 21, 2012. The Board then received McIntosh’s certified letter on November 26, 2012. And as a result of this sequence of events, the Board maintains that McIntosh “did not file a written response to the November 13, 2012 termination letter setting forth his contentions or stating distinctly any special defenses by November 20, 2012,” and thus failed to avail himself of the right to a hearing regarding his termination.

The Board’s interpretation of the Employment Agreements assumes that the seven-day period for responding to the written statement of charges commenced with the mailing of the letter containing the charges, but that is not what the contracts actually provide. Indeed, the applicable termination provision contemplates that McIntosh be “given” the written statement of charges, but it does not specify any particular method or manner in which that might occur, by mail or otherwise. McIntosh was then “required to file written response [to the written statement of charges] within (7) days, setting forth the contentions of McIntosh, and stating distinctly any special defenses.” If McIntosh is deemed “given” the charges upon their mailing by the Board, then he would be at the mercy of the vagaries of the mail as to the time (or no time at all) afforded him to formulate and file his contentions in response to such charges. As such, any interpretation of the termination provision that possibly results in McIntosh being prevented from filing a timely response is patently absurd and will not be adopted by this Court. Instead, viewing the agreement as a whole, we conclude that the requirement that McIntosh be “given” a statement of written charges contemplates that he actually receive those charges, and the applicable time period for McIntosh to “file [a] written response” began to run at that time. Accordingly, McIntosh had until November 22, 2012 to “file” his response to the Board’s charges.

And setting aside the question of whether the date McIntosh transmitted his response, as opposed to the date the Board actually received the response, might suffice, McIntosh’s reply was filed with the Board in a timely fashion. The Thanksgiving holiday in 2012 fell on November 22, and the record shows that the Miller County School System was closed that entire week. Then, when the school system reopened on November 26, 2012, the Board received McIntosh’s response, which was the next business day following November 22, 2012. As a general rule, albeit by analogy as opposed to its express provisions, OCGA § 1-3-1 (d) (3) applies to contracts. Thus, because the last day for McIntosh to file his response fell on a holiday, he had until the next business day to fulfill that duty, and he did so.

The Board further maintains that even if McIntosh’s response was timely he, nevertheless, failed to comply with the contractual requirement that his response “set[ ] forth the contentions of McIntosh, and stat[e] distinctly any special defenses.” This is because, in his reply, McIntosh simply contended that he “deniefd] the allegations of the charge letter as they are insufficient factually and legally to constitute cause for termination of his contract under Georgia law.” And in the Board’s view, this general denial of the detailed allegations in the charge letter and utter failure to set forth any specific factual contentions or special defenses does not satisfy the requirements set forth in the Employment Agreements.

We agree with the Board that its lengthy written statement of charges was consistent with its contractual obligation to provide “sufficient detail to enable McIntosh to determine the nature of the grounds for dismissal....” But in stark contrast, there is nothing in the termination provision obligating McIntosh to provide a detailed response to the Board’s written statement of charges. And as a principle of construction (applicable to statutes and contracts alike), “[e]xpressio unius est exclusio alterius,” or “[t]he express mention of one thing implies the exclusion of another.” Indeed, a comparison of the express requirements of the written statement of charges and McIntosh’s obligation to merely set forth his “contentions” in response thereto indicates that the parties did not intend to place an equivalent explanatory burden on McIntosh as to the contents of his reply. Accordingly, we find McIntosh’s contentions, albeit general in nature, are nevertheless sufficient to comply with his contractual obligations. Furthermore, while it is true that McIntosh did not set forth specifically designated “special defenses,” the Employment Agreements only required that such defenses be stated if there are “any,” not that McIntosh have such defenses or waive his right to a hearing. Thus, the record shows that McIntosh’s response was both timely and in substantive compliance with the requirements of the Employment Agreements, and thus the Board did not establish that McIntosh waived his right to a hearing.

Lastly, McIntosh was not required to seek relief under OCGA § 20-2-1160 before pursuing a claim in superior court. That statutory provision provides, in pertinent part, that “[a]ny party aggrieved by a decision of the local board rendered on a contested issue after a hearing shall have the right to appeal therefrom to the State Board of Education.” And here, the record shows only that—at the time he sought relief in superior court—McIntosh had done all that was required of him under the applicable provisions of the Employment Agreements, while the Board, having taken the position that McIntosh’s right to a hearing was waived, does not suggest that it ever intended to proceed with the appointment of the hearing tribunal. It would have been futile, then, for McIntosh to attempt an appeal to the State Board of Education under OCGA § 20-2-1160, “since such appeals are confined to the record and presuppose a hearing was held.” It follows, then, that the trial court did not err in refusing to dismiss McIntosh’s complaint for failure to exhaust his administrative remedies.

2. The Board further contends that it was entitled to summary judgment because the 2012 Employment Agreement is void and unenforceable for violating OCGA § 20-2-101 (a) and (d). We agree with the Board that the 2012 Employment Agreement is void because the Board had no authority to enter into that particular contract. We, nevertheless, affirm the trial court’s denial of the Board’s motion for summary judgment because, construing McIntosh’s complaint forgivingly (as we are required to do at this stage of the proceedings), he asserted a claim for breach of his employment agreement, and the parties agree that if the 2012 Employment Agreement is void then McIntosh was employed by the Board under the 2010 Employment Agreement at the time of his termination.

At the outset of our analysis, we note that summary judgment is only warranted “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.” We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant. With these guiding principles in mind, we will now address the Board’s arguments in support of this enumeration of error.

(a) To begin with, we agree with the Board that the 2012 Employment Agreement is void because it (as previously constituted) did not comply with OCGA § 20-2-101 (d), which provides that,

[a]t any time during the 12 months immediately preceding the expiration of an appointed school superintendent’s contract or term of office, or when a vacancy in the office of school superintendent occurs, the local board may appoint and employ a successor in accordance with the above provisions of this Code section, notwithstanding that the terms of some or all of the board members will expire before the employment of the superintendent so appointed and employed begins.

Indeed, OCGA § 20-2-101 (d) contemplates two conditions under which a local school board may appoint and employ a successor: (1) “any time during the 12 months immediately preceding the expiration of an appointed school superintendent’s contract or term of office” or (2) upon a vacancy in the office of the superintendent. And neither condition applies here, as the 2012 Employment Agreement was entered into 20 months before the expiration of the 2010 Employment Agreement, and there was no vacancy in the office of superintendent at the time the 2012 Employment Agreement was executed by the parties. Thus, in April 2012, the Board had no authority to enter into the 2012 Employment Agreement, and by doing so, it deprived the Board—as later constituted and at a time duly invested with such power—of the discretion to choose its superintendent. It follows, then, that the 2012 Employment Agreement is ultra vires and void.

(b) The Board also argues that, in light of OCGA § 20-2-101 (a), the 2012 Employment Agreement is void as the product of an invalid “roll-over” provision contained within the 2010 Employment Agreement. The premise of this argument is flawed, however, because the term of McIntosh’s employment was not unilaterally extended by the Board nor did McIntosh’s term of employment under the 2012 Employment Agreement “commence on December 30 in the year that the contract is extended,” as provided in the 2010 Employment Agreement’s roll-over provision. In any event, the 2012 Employment Agreement is void under OCGA § 20-2-101 (d) for the reasons already noted supra.

However, the Board’s challenge to the validity of the “roll-over” provision is relevant to the extent it implies that the 2010 Employment Agreement is likewise void. And while we agree with the Board that the roll-over provision of that contract is void, the remainder of the agreement is not destroyed thereby.

The 2010 Employment Agreement allows the Board “to extend the contract of employment herein for an additional term of three (3) years, commencing on December 30 in the year the contract is extended, and the terms and provisions of this agreement shall be applicable.” And under the plain terms of OCGA § 20-2-101 (a), “[superintendents of each school system shall be employed by the local board of education under written contracts for a term of not less than one year and not more than three years.”

Although the 2010 Employment Agreement is for a term of three years, OCGA § 20-2-101 (a) also provides that

[a]ny provision of any such contract which provides for an extension of the duration of employment thereunder, whether automatic or contingent upon the occurrence of one or more events, shall be void if that extension would result in employment under the contract, as extended, for a period which exceeds three years.

Thus, contingent upon the event of the Board’s exercise of the right, the roll-over provision of the 2010 Employment Agreement contemplates an extension of the term of employment beyond three years. As such, pursuant to OCGA § 20-2-101 (a), that “provision . . . shall be void.”

Nevertheless, so long as the 2010 Employment Agreement is severable, as determined by the intent of the parties, “the invalid provision does not render other provisions of the contract void.” And given that the roll-over provision is patently ancillary to the numerous promises contained in the 2010 Employment Agreement, we conclude that the parties did not intend for the invalidity of the roll-over provision to destroy the remainder of the contract.

(c) Notwithstanding the foregoing, the Board represented to the trial court (and this Court) that McIntosh and the Board’s employment relationship is governed by the 2010 Employment Agreement if the 2012 Employment Agreement is void, and McIntosh agrees with the Board on this particular point. Thus, although McIntosh’s term of employment could not have been extended by the void 2012 Employment Agreement beyond December 30, 2013, he was nevertheless employed under the 2010 Employment Agreement when he was terminated effective November 15, 2012. And construing McIntosh’s complaint forgivingly, although McIntosh specifically references only the 2012 Employment Agreement in his complaint, he also sought damages for the breach of his employment contract. The Board failed to show, then, that there is no genuine issue of material fact as to whether McIntosh may recover on his claims that, inter alia, “judgment be entered for contractual damages” and that the Board’s conduct “constitutes a breach of the written agreement between [McIntosh] and the [Board] .’’Accordingly, the trial court did not err in denying the Board’s motion for summary judgment.

Decided March 20, 2014.

Flynn, Peeler & Phillips, Charles E. Peeler, for appellant.

Howard J. Stiller, for appellee.

Judgment affirmed.

Andrews, P. J., and McMillian, J., concur.

       The reasons cited were: “(1) Incompetency; (2) Insubordination; (3) Willful neglect of duties; (4) Failure to comply fully with warranty provisions; and (5) Other good and sufficient cause.”

       OCGA § 20-2-101 (i); see also Grady County Bd. of Ed. v. Hickerson, 275 Ga. 580, 581 (571 SE2d 391) (2002) (noting “the directive of OCGA § 20-2-101 (f) that the terms and conditions of a superintendent’s employment by a school system are governed by the parties’ contract”).

       OCGA § 20-2-101 (f).

        Hickerson, 275 Ga. at 581.

       If it is determined that McIntosh failed to exhaust his administrative remedies, then his suit in superior court is “procedurally barred.” Mayor & Aldermen of the City of Savannah v. Savannah Cigarette & Amusement Svcs., 267 Ga. 173, 174 (476 SE2d 581) (1996). See also We, the Taxpayers v. Bd. of Tax Assessors of Effingham County, 292 Ga. 31, 35 (2) (734 SE2d 373) (2012) (finding taxpayers’ failure to exhaust administrative remedies deprived the trial court of subject-matter jurisdiction over the complaint); Norman v. United Cities Gas Co., 231 Ga. 788, 788 (204 SE2d 127) (1974) (class action properly dismissed for lack of jurisdiction because consumer did not pursue administrative remedies); Arp v. Bremen Bd. of Ed., 171 Ga. App. 560, 560 (320 SE2d 397) (1984) (affirming dismissal of coach’s breach-of-contract claim against the board of education because he failed to exhaust his administrative remedies). As it concerns a matter in abatement, the trial court’s consideration of evidence outside the pleadings did not convert the Board’s request to dismiss the complaint to a motion for summary judgment. See, e.g., Church v. Bell, 213 Ga. App. 44, 45 (443 SE2d 677) (1994) (concluding that “[ujnder OCGA § 9-11-12 (b),... only motions under OCGA § 9-11-12 (b) (6), failure to state a claim upon which relief can be granted, are converted to motions for summary judgment when matters outside the pleadings are considered,” and any evidence considered by the trial court was pursuantto OCGA § 9-11-43 (b)). Compare Day v. Brantley County Sch. Dist., 298 Ga. App. 717, 717 (680 SE2d 496) (2009) (affirming grant of summary judgment where there was nothing in the record to show plaintiff pursued her administrative remedies).

        Welch v. Ga. Dep’t of Transp., 276 Ga. App. 664, 664 (624 SE2d 177) (2005) (punctuation omitted). Accord Sadi Holdings, LLC v. Lib Props., Ltd., 293 Ga. App. 23, 23 (666 SE2d 446) (2008).

        See McIntyre v. Zac-Lac Paint & Lacquer Corp., 107 Ga. App. 807, 820 (131 SE2d 640) (1963) (Felton, J., concurring specially) (“The courts have properly recognized the fallibility of lawyers and laymen in the writing of contracts and seek to lend a helping hand in the solution of the problems of ambiguities and conflicts in contracts and go a long way towards giving a contract a construction which is reasonable and fair and not one which is ridiculous and absurd.”).

        See Archer W. Contractors Ltd. v. Estate of Pitts, 292 Ga. 219, 224 (2) (735 SE2d 772) (2012) (providing that contracts must be construed as a whole); State Auto Property and Cas. Co. v. Matty, 286 Ga. 611, 612 (690 SE2d 614) (2010) (same); Triple Eagle Assoc., Inc. v. PBK, Inc., 307 Ga. App. 17, 24 (2) (c) (704 SE2d 189) (2010) (same); OCGA § 13-2-2 (4) (“The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part”).

       The Compact Oxford English Dictionary 674 (2d ed. 1991) (defining “give” as “[t]o deliver or hand (something) to a person, so that he takes it”).

       McIntosh did not produce evidence supporting when or if the Board received the facsimile transmission and does not rely on the Board’s receipt of that transmission to show that his response was timely.

        See Allstate Ins. Co. v. Stephens, 239 Ga. 717, 718-19 (238 SE2d 382) (1977) (reaffirming prior holding that by analogy former Code Ann. § 102-102 (8), providing for computation of days as to the exercise of any privilege or discharge of any duty, applies to contracts as well as statutes); Brooks v. Hicks, 230 Ga. 500, 501-02 (197 SE2d 711) (1973) (referencing authority that statutes excluding a terminal Sunday or holiday from a period of time “provide a safe and sound rule to be observed in the interpretation of contracts where no different meaning is given by the instrument to be construed or where no different intention is manifest from the contract” (citation and emphasis omitted)); Sanders v. Allstate Ins. Co., 207 Ga. App. 461, 462 (2) (428 SE2d 575) (1993) (applying OCGA § 1-3-1 (d) (3) to an insurance policy).

       As to prescribed periods not less then seven days, “[w]hen the last day prescribed for such action falls on a public and legal holiday ... the party having the privilege or duty shall have through the next business day to exercise the privilege or to discharge the duty.” OCGA § 1-3-1 (d) (3).

        Krogh v. Pargar, LLC, 277 Ga. App. 35, 39 (2) (625 SE2d 435) (2005) (punctuation omitted); see also Bailey v. Lumpkin, 1 Ga. 392, 403-04 (1846) (“The maxim ‘expressio unius est, exclusio alterius,’ the express mention of one thing implies the exclusion of another, is frequently quoted in our courts .... This maxim applies, in the first place, rather in the construction of contracts than statutes . .. .”).

       In light of these findings, we need not consider if the parties contemplated that a timely and sufficient response to the written statement of charges was a prerequisite to the administrative hearing contemplated by the Employment Agreements, nor whether the Board waived its rights thereunder by informing McIntosh that he had until “December 7, 2012 by 4:00 p.m.” to request a hearing.

       OCGA § 20-2-1160 (b).

        See generally DeKalb County v. Cooper Homes, 283 Ga. 111, 113 (1) (657 SE2d 206) (2008) (finding that the available remedies are assessed at time relief is sought in the superior court); accord North Fulton Med. Center, Inc. v. Roach, 265 Ga. 125, 128 (2) (453 SE2d 463) (1995) (“The appropriate inquiry is whether the legal remedy existed at the time mandamus relief was sought.”).

        Atlanta Pub. Schs. v. Diamond, 261 Ga. App. 641, 643 (1) (583 SE2d 500) (2003).

        See Mixon v. Ga. Bank & Trust Co., 154 Ga. App. 32, 32 (267 SE2d 483) (1980) (noting that in considering a motion for summary judgment by the defendant, the complaint is to be construed forgivingly in favor of the complainant).

       OCGA § 9-11-56 (c).

        See Woodcraft by MacDonald, Inc. v. Ga. Cas. and Sur. Co., 293 Ga. 9, 10 (743 SE2d 373) (2013).

        See Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).

       OCGA § 20-2-101 (d).

       It might be argued that as an incumbent superintendent, McIntosh was not a “successor” for purposes of OCGA § 20-2-101 (d). However, the General Assembly makes no such distinctions in the text of OCGA § 20-2-101 as to incumbents. Furthermore, to exclude an incumbent superintendent from the application of OCGA § 20-2-101 (d) would be contrary to the General Assembly’s textual directive to limit, rather than expand, the term of superintendent employment contracts. See OCGA § 20-2-101 (a), discussed infra. It is well established that when considering the meaning of a statute, “our charge as an appellate court is to presume that the General Assembly meant what it said and said what it meant.” Martinez v. State, 325 Ga. App. 267, 273 (750 SE2d 504) (2013) (citation and punctuation omitted). And toward that end, “we must afford the statutory text its plain and ordinary meaning, consider the text contextually, and read the text in its most natural and reasonable way, as an ordinary speaker of the English language would.” Id. (citation and punctuation omitted).

       Governor Nathan Deal appointed five new members to the Board on September 29, 2012, and these individuals were sworn into office on October 1, 2012.

        See, e.g., Smith v. Ouzts, 214 Ga. 144, 146 (1) (103 SE2d 567) (1958) (concluding that the board of education had no authority to agree to limit location of a school building as “any contract which controls or restricts the discretion vested in a public officer or public body is contrary to public policy and void”); Barr v. City Council of Augusta, 206 Ga. 750, 750 (3) (58 SE2d 820) (1950) (finding contract “ultra vires and void, in that it restricted legislative and governmental powers of future councils of the city’); Aven v. Steiner Cancer Hosp., Inc. 189 Ga. 126, 140 (5) (5 SE2d 356) (1939) (rule against binding successors arises in common law).

        Horne v. Drachman, 247 Ga. 802, 805 (2) (280 SE2d 338) (1981) (punctuation omitted). See OCGA § 13-1-8 (a) (“Acontract may be either entire or severable. In an entire contract, the whole contract stands or falls together. In a severable contract, the failure of a distinct part does not void the remainder.”); OCGA § 13-1-8 (b) (“The character of the contract in such case is determined by the intention of the parties.”). Similarly, if the Board had been authorized to enter into the 2012 Employment Agreement, which also contains a “roll-over” provision, then the 2012 Employment Agreement would not be void in its entirety on that ground.

        See Horne, 247 Ga. at 806 (2) (finding that a covenant was not such an integral part of the contract that the parties intended that the agreement was premised on its validity).

       Although the transcript of the motion hearing is not included in the record, the record contains post-hearing briefs in which the Board responded to questions raised by the trial court at the hearing, including “whether entering into the [2012 Employment Agreement] functions to terminate the [2010 Employment Agreement].” In response, according to the Board, “the [2012 Employment Agreement] is unlawful and void” but “the employment relationship between the parties is governed by the [2010 Employment Agreement], which expires December 30, 2013 ____”

        See, e.g., Landmark American Ins. Co. v. Khan, 307 Ga. App. 609, 612 (1) (705 SE2d 707) (2011) (finding that “complaints and other pleadings should be construed as to do substantial justice ... in favor of the pleader”) (punctuation omitted).

       The Board acknowledges that, “other than providing a new termination date,” the 2012 Employment Agreement “contains identical material terms as the [2010 Employment Agreement].”


source: Caselaw Access Project

author: MCFADDEN, Judge.

license: Public Domain

text:
    A13A2486.
    WILLIAMS v. THE STATE.
    (756 SE2d 650)
   MCFADDEN, Judge.

After a jury trial, Jerrell Williams was convicted of burglary and forgery arising from a home invasion robbery. The jury deadlocked on armed robbery charges, but Williams subsequently pled guilty to and was convicted of two lesser counts of robbery. Williams appeals, challenging the sufficiency of the evidence as to the burglary conviction, the voir dire of a potential juror, the admission of evidence of a photographic lineup, the use of a prior conviction to impeach Williams’ trial testimony, the state’s closing argument, the replacement of a juror, the effectiveness of trial counsel, and the imposition of a recidivist sentence. However, there was overwhelming evidence of Williams’ guilt, and the other claims of error are without merit, constitute harmless error or were not preserved for appellate review. Accordingly, we affirm.

1. Sufficiency of the evidence.

Williams claims the evidence was insufficient to support his burglary conviction. The claim is without merit.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Brown v. State, 318 Ga. App. 334, 334-335 (733 SE2d 863) (2012) (citations and punctuation omitted).

So viewed, the evidence shows that in the early morning hours of October 12,2007, three men broke into a home, bound the two victims with duct tape, held the victims at knifepoint as they stole various items from the residence, and then fled in a silver Lincoln Town Car with a damaged trunk. A short time later, a police officer saw Williams with the car at a grocery store, where Williams used a credit card stolen from the victims to purchase groceries. As police were talking to Williams, his brother-in-law then arrived at the store in another car that had other items stolen from the victims in it. Williams was arrested, and while in a jail holding cell, he bragged to others about the home invasion robbery and how he had kicked in the door of the victims’ home. Police executed a search warrant at Williams’ home and found a knife matching the description of the one used in the robbery. Both of the victims later identified it as looking like the knife that the robbers had “waved in their face[s]” and used to threaten them.

Contrary to Williams’ argument, it is apparent that “[tjhere was sufficient evidence for the jury to find [him] guilty beyond a reasonable doubt [of burglary].” Jackson v. State, 217 Ga. App. 485, 487 (1) (458 SE2d 153) (1995) (citations omitted).

2. Voir dire.

Williams complains that the trial court erred by injecting its personal opinion into the voir dire of a potential juror. However, Williams has not identified any statement of personal opinion by the trial court, has failed to indicate where he raised such an objection, and the pages of the voir dire transcript he cites to do not contain such an objection. Williams therefore has not preserved the issue for appeal. Brockman v. State, 292 Ga. 707, 720 (7) (e) (739 SE2d 332) (2013). And to the extent Williams’ enumerated error can be construed as a claim that the trial court should have removed the potential juror for cause, it likewise presents nothing for review because Williams “did not move ... to remove the juror for cause. Accordingly, this enumeration of error is waived. [Cits.]” Ashford v. State, 271 Ga. 148, 149 (2) (518 SE2d 420) (1999).

Moreover, even if he had not waived these objections, Williams has shown no error.

Control of the voir dire examination is within the sound discretion of the trial court and the court’s discretion will not be interfered with unless the record shows a manifest abuse of that discretion. After viewing the record, we conclude that the voir dire in this case was sufficient to ascertain the fairness and impartiality of the prospective juror [ ].

Brockman, supra at 720 (8).

3. Photographic lineup.

Williams contends that the trial court erred in denying his motion to suppress evidence of an impermissibly suggestive photographic lineup shown to the two victims. But even if the lineup was impermissibly suggestive, neither victim positively identified Williams as the perpetrator. While they indicated that it was close, both victims were unable to positively identify him from the lineup as one of their assailants. Given that there was no actual identification of Williams as a perpetrator based on the photographic lineup, the trial court did not err in denying the motion to suppress.

Moreover, even

assuming error in the admission of the ... photo lineup, we find any error harmless beyond a reasonable doubt in view of the overwhelming evidence of [Williams’] guilt, including his [possession of the getaway car, use of a victim’s stolen credit card, having the knife from the incident in his house, and admission of his role in] the crime.

McGee v. State, 209 Ga. App. 261, 262 (1) (433 SE2d 374) (1993) (citation omitted), overruled in part on other grounds in Jones v. State, 272 Ga. 900 (537 SE2d 80) (2000).

4. Impeachment evidence.

Williams testified at trial, and on cross-examination the state introduced six of his prior convictions to impeach him. Williams contends that it was error to admit one of those convictions as impeachment evidence because it was for a misdemeanor, rather than a felony, from South Carolina. But even if we presume error, “such an error does not require a new trial if the error is harmless ... [and here,] the overwhelming evidence establishes [Williams’] guilt so as to make harmless the [alleged] error in admitting the prior-conviction[ ] evidence.” Johnson v. State, 307 Ga. App. 791, 793 (706 SE2d 150) (2011).

5. Closing argument.

Williams claims that his conviction must be reversed because the prosecutor was allowed to make the misleading statement during closing argument that Williams is a six-time convicted felon, when in fact he only has five prior felony convictions since the South Carolina conviction discussed above was only for a misdemeanor. However, Williams did not object at trial to the closing argument, and a “defendant’s failure to object to the [s]tate’s closing argument waives his right to rely on the alleged impropriety of that argument as a basis for reversal.” Easter v. State, 322 Ga.App. 183, 189 (6) (744 SE2d 374) (2013) (citation and punctuation omitted).

6. Replacement of juror.

Williams argues that the trial court erred in replacing one of the jurors with an alternate juror. We disagree.

The record shows that after the case had been submitted to the jury, one of the jurors stopped participating in the deliberations. The juror told the court that she suffers from post-traumatic stress disorder, that she had taken the maximum dose of prescribed medication for her mental health issue, that the stress of the jury deliberations was causing her to shut down mentally and emotionally, that she had broken down and cried during the deliberations, and that she had physically removed herself from the group by sitting on the floor in the corner.

OCGA § 15-12-172 provides: “If 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.” This Code section gives the trial court discretion to discharge a juror and replace him or her with an alternate at any time, and we will not reverse as long as the court’s exercise of discretion has a sound legal basis.

Wooten v. State, 250 Ga. App. 686, 687 (3) (552 SE2d 878) (2001) (citations and punctuation omitted). The juror’s mental health concerns, stated inability to deliberate further, and her “admitted actions during jury deliberations, constituted legal cause for removal.” Norris v. State, 230 Ga. App. 492, 495 (5) (496 SE2d 781) (1998) (citations omitted). Accordingly, we cannot say that the trial court abused its discretion in removing the juror and replacing her with an alternate juror.

7. Ineffective assistance.

Williams claims his trial counsel was ineffective in failing to obtain a mental evaluation of him and to present evidence of his mental health history at sentencing. To sustain his ineffective assistance claim, Williams “must show both that counsel’s performance fell below a reasonable standard of conduct and that, but for counsel’s deficient performance, there is a reasonable probability the outcome of the trial would have been different.” Anthony v. State, 275 Ga. App. 274, 279 (6) (620 SE2d 491) (2005) (citation omitted). Williams has failed to show that his trial counsel’s performance was deficient.

It is true that where a defense attorney receives information from a reliable source that his client has had a history of psychiatric problems, but fails to adequately investigate this history, counsel fails to provide effective assistance. If trial counsel lacks notice of a prior psychiatric problem, however, the failure to investigate a defendant’s mental health does not necessarily constitute deficient performance.

Breland v. State, 285 Ga. App. 251, 253 (2) (648 SE2d 389) (2007) (citations and punctuation omitted).

In this case, counsel testified at the motion for new trial hearing that he met with Williams more than 14 times to prepare for trial; that counsel had no difficulty communicating with Williams and saw no indication that he had any mental health problems; that Williams took an active role in assisting with his defense of the case; that Williams understood the charges and possible consequences, and had no difficulty understanding what was going on with the case; that counsel was never presented with any information showing that Williams had mental health issues; and that neither Williams nor his family told counsel of any mental health history. Because this evidence that trial counsel lacked notice of any mental health issues supports the trial court’s determination that counsel provided effective assistance, the “allegation of error on this ground presents no basis for reversal.” Breland, supra at 254 (2).

8. Recidivist sentence.

The trial court sentenced Williams as a recidivist pursuant to OCGA § 17-10-7 (c), which provides:

[A]ny person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

Williams contends that the case should be remanded for resentencing because the state introduced evidence that he had six purported prior felony convictions, but one of those convictions was actually the South Carolina misdemeanor offense mentioned above, for possessing a stolen motor vehicle with a value of $1,000. The state claims that while the offense was a misdemeanor in South Carolina, it was considered a felony in Georgia at the time of sentencing in this case. However, we need not make that determination, because even if we assume that the offense was a misdemeanor, any error in admitting evidence of it was harmless since the five other felony convictions mandated recidivist sentencing under OCGA § 17-10-7 (c). See Bostick v. Ricketts, 236 Ga. 304, 307 (2) (223 SE2d 686) (1976) (any consideration of prior misdemeanors during recidivist sentencing was harmless in light of defendant’s numerous prior felony convictions); Johnson v. State, 284 Ga. App. 724, 727 (3) (644 SE2d 544) (2007) (pretermitting whether court erred in considering prior first offender plea, proof of defendant’s other felony convictions was sufficient to authorize punishment under OCGA § 17-10-7 (c)); Jenkins v. State, 235 Ga. App. 547, 550 (3) (c) (510 SE2d 87) (1998) (at sentencing, any error in discussion of defendant’s prior arrests was harmless since recidivist sentence was authorized by defendant’s prior felony conviction). Accordingly, there is no need to remand the case for resentencing.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.

Decided March 20, 2014.

Solomon A. Amusan, for appellant.

MegE. Heap, District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.


author: McFADDEN, Judge.

text:
    A13A1628.
    KIM v. FIRST INTERCONTINENTAL BANK.
    (756 SE2d 655)
   McFADDEN, Judge.

This case involves the priority of competing interests in a parcel of property. First Intercontinental Bank brought this action for equitable subrogation and reformation of its security deed, which contained an incorrect legal description of the encumbered property. Chan K. Kim appeals the grant of summary judgment to First Intercontinental. Kim argues that First Intercontinental is not entitled to equitable subrogation because it was guilty of culpable neglect, and to allow equitable subrogation would prejudice Kim’s interest. Alternatively, Kim argues that the trial court should limit the amount to which First Intercontinental is equitably subrogated. Finally, he argues that First Intercontinental is not entitled to reformation because Kim was not a party to the security deed containing the mistake. We conclude that because Kim will not be prejudiced — his position of priority is unchanged—First Intercontinental was entitled to a reformation of its deed and equitable subrogation but only to the extent it paid off a prior encumbrance. We therefore vacate and remand.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.

Secured Equity Financial v. Washington Mut. Bank, 293 Ga. App. 50 (666 SE2d 554) (2008) (citation omitted).

Viewed in this light, the evidence shows that on December 22, 1999, Yong Ho Han, a defendant below, purchased the property at issue, a shopping center in Augusta. He granted a security deed in the property for $80,800 to SunTrust Bank Augusta, N.A., which is not a party to this case. He refinanced his debt with SunTrust twice, eventually granting SunTrust security deeds for $486,000 and $90,900. Those security deeds were recorded.

In January 2006, Han conveyed to Kim by warranty deed an undivided one-half interest in the property. The warranty deed was not recorded until November 26, 2008, however. The same day in January 2006, that Han conveyed the interest to Kim, both men conveyed their interests in the property by warranty deed to H&K Deans Bridge Properties, LLC, also a nonparty. That warranty deed, too, was not recorded until November 26, 2008. Given that the SunTrust security deeds were recorded and within the chain of title, Kim and H&K had notice of SunTrust’s interest in the property.

After the January 2006 Han-to-Kim and Han-and-Kim-to-H&K conveyances but before the recording of those warranty deeds, in August 2006, Han refinanced his debt for $620,000, this time with appellant First Intercontinental, granting a security deed in the entire parcel. The security deed was recorded but it contained an incorrect legal description of the property, describing an adjoining piece of property that Han did not own.

First Intercontinental paid off Han’s debt to SunTrust. At the time, First Intercontinental had no actual notice of Kim’s and H&K’s interests in the property, since their warranty deeds had not yet been recorded.

As noted, in November 2008, the warranty deeds from Han to Kim and Han and Kim to H&K were recorded. Two months later, in January 2009, H&K reconveyed the property to Han and Kim by recorded warranty deed.

First Intercontinental filed this action against Han and Kim, seeking a reformation of its security deed to correct the legal description of the property. First Intercontinental also sought equitable subrogation of its security deed, claiming first priority lien position because of its payment of the SunTrust security deeds. The trial court granted First Intercontinental’s motion for summary judgment, and Kim filed this appeal.

1. (a) Equitable subrogation.

Kim argues that the trial court erred in holding that First Intercontinental was entitled to equitable subrogation because First Intercontinental was guilty of culpable or inexcusable neglect and to allow equitable subrogation would prejudice Kim’s interests. We disagree.

“Essentially, [the equitable subrogation] doctrine provides that where it was the intent of the parties to substitute a new creditor’s rights for the rights of the creditor that is being paid off, the new creditor steps into the shoes of the old creditor in terms of priority.” Chase Manhattan Mtg. Corp. v. Shelton, 290 Ga. 544, 549 (4) (722 SE2d 743) (2012). In Davis v. Johnson, 241 Ga. 436, 438 (246 SE2d 297) (1978), our Supreme Court set out the complete rule:

Where one advances money to pay off an encumbrance on realty either at the instance of the owner of the property or the holder of the encumbrance, either upon the express understanding or under circumstances under which an understanding will be implied that the advance made is to be secured by the senior lien on the property, in the event the new security is for any reason not a first lien on the property, the holder of the security, if not chargeable with culpable or inexcusable neglect, will be subrogated to the rights of the prior encumbrancer under the security held by him, unless the superior or equal equity of others would be prejudiced thereby. . . .

Id. (citations and punctuation omitted). Here, it is undisputed that First Intercontinental advanced money to pay off SunTrust’s encumbrances on the property with the understanding that the loan would be secured by a senior lien on the property.

Kim argues that First Intercontinental is guilty of culpable or inexcusable neglect, defeating its right of equitable subrogation, because it had actual knowledge of Kim’s interest in the property but advanced the funds anyway. His argument is based on the faulty premise that First Intercontinental had actual knowledge because Kim’s “tenants have been in exclusive, open notorious, and continuous possession” of the property. As First Intercontinental points out, the property was a commercial shopping center, and for all First Intercontinental knew, the tenants were Han’s — the party with whom First Intercontinental dealt and an undisputed owner of the property.

Kim also argues that First Intercontinental is not entitled to equitable subrogation because it would prejudice Kim’s interest in the property. This is not true. Equitable subrogation simply allows First Intercontinental to “step[ ] into the shoes of the old creditor[, SunTrust], in terms of priority.” Chase Manhattan Mtg. Corp., 290 Ga. at 549 (4). Kim never had first priority; his interest was subordinate to SunTrust’s, which he knew or should have known, given that SunTrust’s security deeds were recorded. See Baxter v. Bayview Loan Servicing, 301 Ga. App. 577, 585 (1) (b) (688 SE2d 363) (2009) (“A purchaser of real property is not only charged with notice of every fact shown by the records in the chain of title, but is also presumed to know every other fact which the title examination suggested.”) (citations and punctuation omitted). And now, his interest is subordinate to First Intercontinental. “We cannot say that [First Intercontinental’s] exercise of the right of subrogation would prejudice [Kim’s] rights where, as here, he remains second in order of priority, after the amount secured by the [SunTrust loans] .’’Baxter, 301 Ga. App. at 588 (1) (c) (citations and punctuation omitted).

Kim cites Bankers Trust Co. v. Hardy, 281 Ga. 561 (640 SE2d 18) (2007), in support of his argument that allowing equitable subrogation prejudices his interest, but that case is inapposite. In that case, our Supreme Court held that, “subrogation will not apply to protect the subrogating lender if doing so would prejudice the legitimate interests of the other lienholder.” Id. at 564. But there, the lender “knowingly acquired a secured debt for the property at issue even though the party to whom the loan had been issued was only a joint tenant and the other joint tenant had not been included in the loan transaction.” Id. Here, on the other hand, Kim knew or should have known of the encumbrance on the property at the time he purchased his interest because SunTrust’s security deeds were of record. He was never first in priority.

(b) Amount.

The trial court found that First Intercontinental was entitled to a decree of equitable subrogation and accordingly ordered that “Kim’s interest is subject to and encumbered by [First Intercontinental’s] security deed.” But First Intercontinental is entitled to subrogation only to the extent the loan proceeds extended to Han were used to satisfy the SunTrust deeds to secure debt. Baxter, 301 Ga. App. at 586-587 (1) (c). The executive vice president of First Intercontinental testified in his affidavit that the amount it paid to satisfy the SunTrust security deeds as part of Han’s refinance was $403,610.82. Accordingly, we vacate the judgment and remand the case so that the trial court may specify the amount to which First Intercontinental is subrogated.

2. Reformation of the deed.

Kim argues that the trial court was not authorized to reform the deed to correct the legal description of the property because the mistake was not mutual, because there is no privity between Kim and First Intercontinental, and b ecause First Intercontinental is estopped by its actual notice of Kim’s interest in the property. We disagree.

Under Georgia law, “[i]f the form of conveyance is, by accident or mistake, contrary to the intention of the parties in their contract, equity shall interfere to make it conform thereto.” OCGA § 23-2-25. The statute applies when the form of conveyance is a security deed. See DeGolyer v. Green Tree Servicing, 291 Ga. App. 444, 447 (662 SE2d 141) (2008). “Equity will grant relief as between the original parties or their privies in law, in fact, or in estate, except bona fide purchasers for value without notice.” OCGA § 23-2-34. Similarly, when a party acquires title after the questionable conveyance and that party is an innocent purchaser without notice of such mistake, a deed may not be reformed. See Cox v. Zucker, 214 Ga. 44, 51 (2) (102 SE2d 580) (1958).

(a) Mutual mistake.

Kim argues that because he was not a party to the flawed instrument, the mistake was not mutual and the instrument cannot be reformed. But the statute contemplates reforming an instrument when the mistake is “contrary to the intention of the parties in their contract.” OCGA § 23-2-25. “A mutual mistake in an action for reformation means one in which both parties had agreed on the terms of the contract, but by mistake of the scrivener the true terms of the agreement were not set forth.” First Nat. Bank v. Carr, 260 Ga. App. 439, 440 (1) (579 SE2d 863) (2003) (citations and punctuation omitted). In other words, it is the parties to the original instrument that must be mutually mistaken for reformation to occur. And here, First Intercontinental presented uncontroverted evidence that the mistake was mutual as to it and Han.

(b) Privity.

Similarly, Kim argues that because there is no privity between Kim and First Intercontinental, the deed may not be reformed. But there is privity between Kim and Han, a party to the deed sought to be reformed. Such privity “rests upon some actual mutual or successive relationship to the same right of property.” Phillips v. Phillips, 211 Ga. 305, 309 (1) (85 SE2d 427) (1955). Kim’s successive relationship to Han’s right of property means that equity may grant relief as between Kim and First Intercontinental. OCGA § 23-2-34.

(c) Notice.

Finally, Kim argues that the security deed may not be reformed because the bank had actual notice of his interest in the property. But as detailed above, the fact that tenants occupied the commercial shopping center did not put First Intercontinental on notice of Kim’s interest.

For these reasons, we vacate and remand the judgment for further proceedings not inconsistent with this opinion.

Judgment vacated and case remanded.

Doyle, P. J., and Boggs, J., concur.

Decided March 21, 2014.

William A. Trotter III, for appellant.

Weissman, Nowack, Curry & Wilco, Allison C. Jett, for appellee.

       We initially transferred the ease to our Supreme Court on the basis of its jurisdiction over “[cjases involving title to land,” Ga. Const. 1983, Art. VI, Sec. VI, Par. Ill (1), and “[a]U equity cases.” Id. at Par. Ill (2). That court returned it to us, finding that it “does not have jurisdiction over cases involving either reformation of a deed or equitable subrogation.”


author: Miller, Judge.

text:
    A13A1925.
    McNEAL v. THE STATE.
    (756 SE2d 660)
   Miller, Judge.

Following a jury trial, Stevie Latawn McNeal was convicted of trafficking in cocaine (OCGA § 16-13-31 (a)); possession of marijuana with, intent to distribute (OCGA § 16-13-30 (j)); obstruction of an officer (OCGA § 16-10-24(a)); andfailuretomaintainlane (OCGA § 40-6-48). McNeal appeals from the denial of his motion for new trial, contending that the evidence is insufficient to support his drug convictions; the trial court erred in instructing the jury; and his trial counsel was ineffective. We discern no harmful error and affirm.

On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict and [the defendant] no longer enjoys a presumption of innocence. In evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia[, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979)].

(Citation, punctuation and footnotes omitted.) White v. State, 295 Ga. App. 366 (671 SE2d 851) (2008).

So viewed, the evidence was that, on February 13, 2006, a Spalding County sheriff’s corporal, who was a supervisor in the narcotics unit, special operations, was patrolling Interstate 75 southbound when he observed a tan Ford F-150 crossing the fog line several times. The corporal and his partner conducted a traffic stop and found McNeal driving and Lamont Walters in the passenger seat of the truck. When the corporal first walked up to the passenger window, he smelled the overwhelming odor of marijuana coming from inside the truck. He asked McNeal for his driver’s license, which McNeal provided. As McNeal handed the license to him, the corporal noticed that McNeal’s hand was trembling, Walters was breathing heavily, and the corporal could see a visible pulse in Walters’s neck. McNeal got out of the truck at the corporal’s request and moved to the rear. The corporal observed McNeal’s eyes were bloodshot and glassy. The corporal asked McNeal whose truck it was, and McNeal responded that it was a rental. Asked who his passenger was, McNeal responded “Marcus,” but could not tell the corporal his last name. When asked if Walters had the rental papers, McNeal called to him, and Walters began to get out of the truck. The corporal told Walters to stay in the truck and asked for the rental agreement. As Walters was getting the agreement, the corporal saw in plain view what he believed to be pieces of marijuana or marijuana residue on the front floorboard of the truck. The corporal picked up the piece closest to the passenger door jamb and, in his opinion, it was marijuana. The corporal then asked Walters to get out of the truck and for some identification. As Walters was getting identification from his wallet, the corporal saw two stacks of $100 bills wrapped in plastic, which the corporal considered highly suspicious.

At this point, the corporal began to search the truck. In the middle of the back seat, he observed something large covered by two jackets. Lifting the jackets, the corporal saw a large dark plastic bag. He put his hand on the bag and immediately recognized the contents as suspected marijuana. The corporal went to McNeal and started to place him under arrest. McNeal attempted to break away and ran toward the driver’s side of the truck. After wrestling with McNeal, the corporal pulled his Taser and told McNeal if he did not quit fighting, he was either going to taser him or release his patrol dog on him. McNeal then got down on the ground, and the corporal handcuffed him while his partner handcuffed Walters.

After securing the two men, the corporal returned to the truck and opened the black plastic bag in the back seat. He found eight one-gallon ziplock bags containing marijuana, along with several sandwich size bags of marijuana. The corporal also recovered two more plastic baggies of marijuana from a shopping bag. The marijuana had a total weight of 9.75 pounds. Behind the driver’s seat on the floorboard, the corporal found a tan leather bag similar to a bowling bag. Inside the leather bag, the corporal found a large brick, wrapped in two plastic bags, which proved to be a kilogram (2.2 pounds) of 75.6 percent pure powder cocaine. In one of the jackets from the back seat, which was claimed by Walters, the corporal found a small bag of marijuana. While the officers and the two men were waiting for transport, Walters asked, if he claimed all the “dope,” would they let McNeal go. The corporal responded negatively and cautioned Walters about any statements he made because the corporal had not yet advised the men of their rights.

1. In his first two enumerations, McNeal argues that the circumstantial evidence was insufficient to support his convictions of possession of marijuana with intent to distribute and trafficking in cocaine and the State failed to exclude the reasonable hypothesis that the drugs were solely possessed by Walters. We disagree.

[T]he law recognizes that possession can be actual or constructive, sole or joint.... A person has actual possession of a thing if he knowingly has direct physical control of it at a given time. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. If one person alone has actual or constructive possession of a thing, possession is sole, but if two or more persons share actual or constructive possession of a thing, possession is joint.

(Citation and punctuation omitted.) Holiman v. State, 313 Ga. App. 76, 78 (1) (720 SE2d 363) (2011). See also Maddox v. State, 322 Ga. App. 811, 811-814 (1) (746 SE2d 280) (2013) (Maddox, who was front seat passenger in car owned by another, found in constructive possession of cocaine in console between passenger and driver’s seats when no one was in driver’s seat, back seat passengers could not easily access console, and Maddox had bundles of cash on his person).

In this case, both McNeal and Walters were charged with trafficking in cocaine and possession of marijuana with intent to distribute. Therefore, the State was not required to show that McNeal was in sole constructive possession of the cocaine and marijuana, but rather that McNeal and Walters were in joint constructive possession of the drugs.

“A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Mere presence without proof of participation is insufficient.” (Citation omitted.) Vines v. State, 296 Ga. App. 543, 545 (675 SE2d 260) (2009). Here, McNeal and Walters were the only two people traveling in a rented truck which smelled strongly of marijuana; there were pieces of marijuana on the front floorboard of the truck; and McNeal’s eyes were bloodshot and glassy. Both men were extremely nervous when the corporal walked up to the truck. Walters was carrying $2,400 in cash in two plastic wrapped stacks of $100 bills. Two jackets covered the large bag of marijuana in the rear seat, and the leather bag containing the cocaine was directly behind McNeal on the rear floorboard. When asked his passenger’s name, McNeal gave an incorrect first name and could not give a last name. Also, when the corporal attempted to arrest McNeal, he fled.

Here, McNeal’s “presence, companionship, and conduct before and after the offenses are circumstances from which his participation in the criminal intent may be inferred.” (Citation and punctuation omitted.) Jackson v. State, 314 Ga. App. 272, 275 (1) (a) (724 SE2d 9) (2012). We find the evidence legally sufficient. See Clowers v. State, 324 Ga. App. 264, 266 (2) (a) (750 SE2d 169) (2013) (driver of SUV who backed into parking space beside undercover officers during a controlled buy, sat in the SUV while passenger exited SUV and sold gallon sized bag containing marijuana to undercover officer, then driver fled when officers attempted to arrest him, driver found guilty of possession of marijuana with intent to distribute).

In order to support a conviction, such circumstantial evidence does not have to exclude every possible hypothesis other than the defendant’s guilt, but only reasonable hypotheses. Whether a hypothesis is reasonable is a question for the jury, and such finding will not be disturbed on appeal unless the guilty verdict is insupportable as a matter of law.

(Punctuation omitted; emphasis in original.) Able v. State, 312 Ga. App. 252, 254 (1) (718 SE2d 96) (2011).

2. In his third enumeration, McNeal contends that the trial court erred by instructing the jury on the permissive presumption of possession against him as the driver of the vehicle, where there was clear evidence of equal access and the passenger/co-defendant requested the charge. In his fifth enumeration, McNeal also argues that, if the permissive presumption charge were appropriately given, the trial court erred by failing to charge equal access also. They are addressed together.

As an initial matter, the record shows that McNeal never objected to the trial court’s charge. Where no objection is made to a jury charge at trial, “appellate review for plain error is required whenever an appealing party properly asserts an error in jury instructions.” (Footnote omitted.) State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011).

The “plain error” test adopted by this Court in [Kelly] authorizes reversal of a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.

(Citation omitted.) Smith v. State, 292 Ga. 316, 319 (3) (737 SE2d 677) (2013).

Evidence that McNeal was the driver of the car gave rise to a rebuttable presumption that he exercised possession and control of the drug contraband found inside the car. See Ramirez v. State, 290 Ga. App. 3, 4 (1) (658 SE2d 790) (2008). McNeal argues that, because Walters had equal access to the car, the permissive presumption or inference is not applicable and charging it to the jury was plain error.

It is true... that the presumption of possession flowing from a defendant’s status as driver of a vehicle maybe rebutted if the driver presents evidence that other persons had equal access to the vehicle and contraband. Notably, however, the equal access rule does not apply to eliminate the presumption of possession where all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of the contraband.

(Citations and punctuation omitted; emphasis supplied.) Id. at 4 (1); see also Gamble v. State, 223 Ga. App. 653, 655 (1) (478 SE2d 455) (1996) (“The equal access doctrine does not apply to those charged with being in joint constructive possession of contraband.”) (citation omitted).

Since both McNeal and Walters were charged with joint possession of the marijuana and cocaine, the equal access rule did not apply. Even though the presumptive possession charge was requested by Walters instead of the State, we do not find that the trial court plainly erred in giving it. Cf. Delavega v. State, 312 Ga.App. 79, 80 (717 SE2d 681) (2011).

3. In his fourth and sixth enumerations, McNeal argues that the permissive presumption charge initially given by the trial court and then recharged to the jury upon their request was a misstatement of the law, was burden shifting, not tailored to the facts of the case, and placed too much emphasis on the presumption.

Even assuming that the charge and recharge as given were subject to these objections, McNeal has failed to show, pursuant to Kelly, supra, 290 Ga. at 33 (2) (a), that the charge affected his substantial rights, i.e., affected the outcome of the trial court’s proceedings. Here, the jury convicted both McNeal and Walters, finding that both of them were in joint possession of the bags of marijuana and the brick of cocaine. Therefore, we do not find harmful error in the trial court’s denial of the motion for new trial on this ground.

4. McNeal’s seventh enumeration is that the trial court erred by making an improper comment as to the circumstantial evidence of possession. We disagree.

During the trial, the prosecutor asked the corporal “[w]as there any doubt in your mind that this stuff, the cocaine and the marijuana, belonged to these two individuals?” The trial court sustained defense counsels’ objections, but then stated that “I’m not necessarily sustaining it because I don’t think there’s any evidence linking this to anyone. I have no thing [sic] to say about that. I’m just sustaining the objection because I think it’s speculative right now.”

OCGA § 17-8-57 provides: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” “To constitute an improper comment under OCGA § 17-8-57, the trial court’s statement must express an opinion about whether the evidence had proven a material issue in the case, whether a witness was credible, or whether the defendant was guilty.” (Punctuation omitted.) Anthony v. State, 282 Ga. App. 457, 458 (1) (638 SE2d 877) (2006).

We have explained before, however, that this rule

does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence. Furthermore, we have previously determined that remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.

(Citations and punctuation omitted.) Butler v. State, 290 Ga. 412, 416 (4) (721 SE2d 876) (2012). See also Boyd v. State, 286 Ga. 166, 168 (3) (686 SE2d 109) (2009).

Here, the statement at issue was made by the trial judge in the context of a colloquy concerning an evidentiary objection and the ruling of the court on that objection. Accordingly, the statement did not amount to an expression of an opinion of the proof or the guilt of the accused. See Ellis v. State, 292 Ga. 276, 281-282 (3) (736 SE2d 412) (2013) (a trial judge commented regarding a witness’s statement in the presence of the jury that “I think it is admissible as a prior consistent” and the statement was made in the context of a ruling on Ellis’s objection to the earlier statement, OCGA § 17-8-57 was not violated). Moreover, here, the trial court cautioned the jury explicitly at the close of the trial that

nothing I have said or done during this trial was intended to suggest, hint or intimate to any of you which side should prevail. I have no leanings in this case. My job is to see that this case be fairly presented to you according to the law and that your verdict speak the truth as you determine the truth to be from the evidence that’s been presented to you.

See Butler, supra, 290 Ga. at 416 (4); Creed v. State, 255 Ga. App. 425, 428 (1) (565 SE2d 480) (2002). In these circumstances, we see no violation of OCGA § 17-8-57.

5. In his final seven enumerations, McNeal contends that his trial counsel provided constitutionally inadequate assistance in a number of instances. They are considered together.

To establish deficient performance, a person challenging a conviction must show that “counsel’s representation fell below an objective standard of reasonableness.” A court considering a claim of ineffective assistance must apply a “strong presumption” that counsel’s representation was within the “wide range” of reasonable professional assistance. . . .
With respect to prejudice, a challenger must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Harrington v. Richter, 562 U. S. 86,_(IV) (131 SCt 770, 178 LE2d 624) (2011) (quoting Strickland v. Washington, 466 U. S. 668, 687-689, 693-694 (104 SCt 2052, 80 LE2d 674) (1984)).

To show that the performance of his lawyer was deficient, McNeal must prove that his lawyer performed her duties at trial in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. This burden, although not impossible to carry, is a heavy one. Jones v. State, 292 Ga. 593, 599 (7) (740 SE2d 147) (2013).

(a) McNeal asserts that trial counsel was ineffective for failing to object to the trial court’s comment and for failing to request a charge on equal access. As discussed above in Divisions 2 and 4, there was no improper comment by the trial court, and a charge on equal access was inappropriate. Hayes v. State, 262 Ga. 881, 884-885 (3) (c) (426 SE2d 886) (1993) (“Failure to make a meritless objection cannot be evidence of ineffective assistance.”).

(b) McNeal contends that trial counsel inadequately prepared for trial because she did not personally or through an investigator examine the physical evidence prior to trial. At trial, during her cross-examination of the corporal, trial counsel asked the corporal to remove a set of keys from the leather bag containing the cocaine and display them to the jury. The corporal did so and testified that there was nothing in the bag containing identification.

Trial counsel testified at the motion for new trial hearing that, during her closing argument, she reached into the leather bag which contained the cocaine and pulled out a second key chain containing an inscription of “boy’s name” loves “girl’s name” which she had never seen before and which had not been contained in the photographs of the evidence which she had seen. After she finished her closing, she realized that the boy’s name was Walters’s first name and she had made a huge mistake in failing to argue that point. She did not seek to reopen the evidence to pursue the issue nor did she bring this issue to anyone’s attention until her testimony at the motion for new trial hearing.

During her cross-examination, however, trial counsel equivocated as to whether there had been one or two key chains in the leather bag, finally stating “maybe it was the same key chain, maybe there was a second key chain.” Neither of the key chains was produced by McNeal during the hearing on the motion for new trial.

When a defendant alleges ineffective assistance of counsel based on the failure to introduce certain evidence claimed to be exculpatory, the defendant must produce that evidence at the motion for new trial hearing. Cf. Jones, supra, 292 Ga. at 600 (7) (c) (when defendant claims error in failing to call witness, defendant must introduce either the testimony from the witness or a legally recognized substitute at the motion for new trial).

Because McNeal failed to produce the key chain or chains at his motion for new trial hearing, his claim of ineffectiveness is wholly speculative, and he cannot show that the outcome of his trial would have been different. Jones, supra, 292 Ga. at 600 (7) (c).

(c) McNeal claims ineffective assistance for trial counsel’s failure to object to the corporal’s statement that he arrested the two men because they possessed narcotics; failure to object to testimony regarding the rental documents that were not introduced into evidence; failure to object to the corporal’s explanation of why he did not believe a statement of McNeal; and failure to object to the corporal’s statement that he would arrest McNeal even if Walters claimed the narcotics.

The question regarding possession of the narcotics was objected to by Walters’s counsel, joined in by McNeal’s counsel, and sustained by the trial court.

The corporal’s answer to the question of what the rental documents show was unclear as to which of the two men’s names appeared on the documents. The corporal’s opinion that McNeal was not truthful when he said he did not know drugs were in the truck was elicited by Walters’s counsel, not the State, as was the corporal’s statement that he would arrest McNeal even though Walters claimed the narcotics.

Trial counsel’s opinion five and one-half years after the trial that certain actions of hers amounted to ineffective assistance gives us the opportunity to remind counsel that “hindsight has no place in an assessment of the performance of trial counsel and a lawyer second-guessing [her] own performance with the benefit of hindsight has no significance for an ineffective assistance of counsel claim.” (Citation omitted.) Shaw v. State, 292 Ga. 871, 876 (3), n. 9 (742 SE2d 707) (2013).

We conclude that McNeal has failed to show a reasonable probability that, but for trial counsel’s unprofessional errors, the result of the proceeding would have been different. Therefore, there was no error in the trial court’s denial of his motion for new trial on this ground.

Decided March 21, 2014.

W. Allen Adams, Jr., for appellant.

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

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       The outermost solid white line on the side of the interstate.

       Lamont Walters’s conviction of trafficking in cocaine and possession of marijuana with intent to distribute was affirmed in an unpublished opinion, Case No. A10A2206, 307 Ga. App. XXIV (2010).

       The bills totaled $2,400.

       Flight is circumstantial evidence of consciousness of guilt, and the weight to he given to such evidence is for the jury to decide. Brooks v. State, 324 Ga. App. 352, 354 (1) (750 SE2d 423) (2013).

       “I further charge you, ladies and gentlemen, that the contents of an automobile are inferred to be those of one who operates it and is in charge of it.” Thereafter, in response to a jury question, the trial court recharged this instruction.

       Closing arguments were not taken down or transcribed.

       McNeal’s trial occurred in October 2006 and the hearing on the motion for new trial occurred five and one-half years later in May 2012 and was conducted by a judge who did not conduct the trial.


text:
    A13A2012.
    ARNSDORFF v. PAPERMILL PLAZA, LLC et al.
    (756 SE2d 668)
   MCFADDEN, Judge.

This appeal arises from a trial court judgment denying a claim for a leasing commission sought pursuant to the terms of a limited liability company’s operating agreement. Because the trial court correctly ruled that the claimed commission was not due under the terms of the agreement because certain prerequisites, including the adoption of an overall plan for the development of a shopping center, were not met, we affirm.

Papermill Plaza, LLC (hereinafter “Plaza”) was formed to develop a retail shopping center. The original members of Plaza were Branch Capital Partners, LP (hereinafter “Branch”) and Papermill Partners, LLP (hereinafter “Partners”). Plaza and Branch filed a complaint for declaratory relief against Stephen Arnsdorff, claiming that Partners was dissolved and that Arnsdorff, as former sole member of Partners and purported successor-in-interest, was no longer a member of Plaza. Arnsdorff answered and filed a counterclaim, stating that he is the successor of Partners, that in April 2011 Plaza entered into a lease with Whole Foods Market Group, and that as a result of that lease he is entitled to a commission owed pursuant to Plaza’s operating agreement. After a hearing, the trial court entered final judgment in favor of Plaza and Branch on their complaint for declaratory relief, finding that Arnsdorff has not been a member of Plaza since October 31, 2011. And after denying Arnsdorff’s motion for summary judgment on his counterclaim, the trial court entered final judgment in favor of Plaza and Branch, finding that Arnsdorff is not entitled to the claimed commission. Arnsdorff appeals.

1. Leasing commissions under the operating agreement.

Arnsdorff contends that the trial court erred in finding that he is not entitled to a leasing commission under the operating agreement. The contention is without merit.

Plaza’s operating agreement identifies Branch as the company’s managing member. Article 10.3 of the operating agreement expresses the members’ “intention that the shopping center ... be redeveloped and renovated,” and also sets forth Partners’ preliminary duties with regard to the redevelopment. That article provides, among other things, that Partners shall

develop a detailed plan for the redevelopment of the Property. Branch shall consult with [Partners] on a regular basis with respect to each such aspect of the redevelopment of the Property. The overall plan finally approved by Branch for the redevelopment of the Property shall be referred to herein as the “Development Plan.” Once adopted, [Plaza] shall engage [Partners] ... to implement the Development Plan.

(Emphasis supplied.)

The fees to be paid to the members were set forth in Article 10.4 of the operating agreement. Subsection (b) of that article established Branch’s management fee as four percent of the gross income of the property. And subsection (c) of that article sets forth the fees to be paid to Partners. The following article, at section 10.4 (c), specifies what had to happen for Partners to earn those fees.

At such time as the Members agree to the Development Plan and commence redevelopment of the Property, [Plaza] shall engage [Partners]... as developer to supervise and manage redevelopment of the Property. In connection with such engagement, [Plaza] shall pay to [Partners] ... a development fee equal to three (3%) percent of the budgeted direct costs of implementing such Development Plan . ... In addition, [Plaza] shall engage [Partners] to coordinate the leasing of the Property and shall pay leasing commissions to [Partners] equal to $3.00 per square foot for new leases entered into by [Plaza] where no co-brokers are involved, and $4.50 per square foot for new leases entered into by [Plaza] where one or more co-brokers are involved (with [Partners] being responsible for any fee or commission owed to such cooperating broker).

(Emphasis supplied.)

“The construction of a contract is a question of law for the court, and it is the cardinal rule of contract construction that the court should ascertain the intent of the parties. OCGA §§ 13-2-1; 13-2-3.” Davis v. VCP South, 321 Ga. App. 503, 504 (1) (740 SE2d 410) (2013). The entire contract must be examined to determine the parties’ intent. LifePine Roofing Partners v. Besser, 265 Ga. App. 464, 467 (594 SE2d 387) (2004). The “court must consider [the contract] as a whole, give effect to each provision, and interpret each provision to harmonize with each other.” AFLAC v. Chubb & Sons, 260 Ga. App. 306, 307 (1) (581 SE2d 317) (2003) (citation and punctuation omitted).

The plain language of the operating agreement evinces the parties’ intent that Partners develop a detailed plan for redevelopment of the property; that such detailed Development Plan be approved by Branch; that the Development Plan be adopted before Plaza engages Partners to implement it; and that upon adoption of the Development Plan and commencement of the redevelopment, Plaza then shall engage Partners to implement the Development Plan, which includes supervising the redevelopment and coordinating leasing of the property. The first sentence of Article 10.4 (c) is a topic sentence for the entire paragraph, establishing that Plaza shall engage Partners as manager of the redevelopment only after the Development Plan has been adopted. The next two sentences, connected by the conjunction “[i]n addition,” serve as distinct items within that topic, establishing the manner in which Partners shall be paid for its services in implementing the Development Plan. See AFLAC, supra at 308, n. 2 (conjunctions serve as connectors). Thus, in construing the contract as a whole and harmonizing its provisions, it is clear the parties intended that Plaza’s obligations to engage Partners and to pay for its services through development fees and leasing commissions are contingent on adoption of the detailed Development Plan.

Arnsdorff’s claimed construction of the contract, that it “creates an unconditional obligation upon Plaza to pay a [leasing] commission to him” for “any lease that Plaza enters at any time with any tenant at any location,” is unreasonable and overly broad. Contrary to this overly broad construction, “ ‘a contract should be given a reasonable construction that will uphold the agreement rather than a construction that will render the agreement meaningless and ineffective.’ [Cits.]” Willesen v. Ernest Communications, 323 Ga. App. 457, 462 (2) (746 SE2d 755) (2013). And as explained above, that reasonable construction provides that Plaza’s obligation to pay leasing commissions arises only after the Development Plan has been adopted and Partners has been engaged to coordinate leasing of the property.

Arnsdorff, however, has made no showing that the required Development Plan was ever created, approved by Branch and adopted by the members; nor has he shown that redevelopment pursuant to such a plan ever commenced or that Partners was ever engaged to coordinate leasing. On the contrary, at his deposition, Arnsdorff admitted that to his knowledge the Development Plan never existed. Consequently, absent adoption of the Development Plan, Plaza’s obligation to pay leasing commissions under Article 10.4 (c) was never triggered. And therefore, the trial court did not err in ruling that Arnsdorff, as successor of Partners, was not entitled to such a commission. Although this was not the basis for the trial court’s ruling, “[u]nder the ‘right for any reason’ rule, an appellate court will affirm a judgment if it is correct for any reason, even if that reason is different than the reason upon which the trial court relied. [Cit.]” City of Gainesville v. Dodd, 275 Ga. 834, 835 (573 SE2d 369) (2002).

Decided March 21, 2014.

Flynn & Gottlieb, Jon A. Gottlieb, for appellant.

FordHarrison, F. Carlton King, Jr., for appellees.

2. Other enumerations.

Because of our holding above in Division 1, we need not address any remaining enumerations of error.

Judgment affirmed.

Boggs, J., concurs. Doyle, P. J., concurs in judgment only.


text:
    A13A2037.
    SULLIVAN v. THE STATE.
    (756 SE2d 671)
   Miller, Judge.

Following a bench trial, Michael Sullivan was convicted of driving under the influence of alcohol to the extent it was less safe to do so. Sullivan appeals from the trial court’s denial of his motion for new trial, contending that the evidence was legally insufficient; the trial court improperly considered similar transaction evidence; and the trial court improperly considered Sullivan’s refusal to perform field sobriety tests. Finding no error, we affirm.

“On appeal from a criminal conviction that follows a bench trial, the defendant no longer enjoys a presumption of innocence, and we view the evidence in a light favorable to the trial court’s finding of guilt.” (Citation and punctuation omitted.) Hinton v. State, 319 Ga. App. 673 (738 SE2d 120) (2013). “We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia. [] This same standard applies to our review of the trial court’s denial of [defendant’s] motion for new trial.” Stephens v. State, 247 Ga. App. 719 (545 SE2d 325) (2001).

So viewed, the evidence was that, at approximately 1:00 a.m. on October 2, 2009, Georgia State Trooper Osby, in a marked patrol car, was patrolling in Atlanta as a member of the Night Hawks, a DUI Task Force. In his career as a trooper and, previously, as a military police officer, Osby had handled approximately 1,000 DUI cases. At the intersection of Piedmont Road and Lindbergh Drive, Osby was stopped at the traffic light on Piedmont heading north when he noticed a black Nissan 350Z stopped across the intersection heading south. As the light turned green, the 350Z sped off at a high rate of speed, causing the car to spin out before gaining traction. Osby estimated the 350Z was traveling 50 to 55 mph in a 35 or 40 mph speed zone. Osby made a u-turn and pursued the car, which had sped away over a hill. Osby then stopped the 350Z and made contact with Sullivan. As Osby asked Sullivan for his driver’s license, he noticed a strong odor of alcohol coming from the car and observed that Sullivan’s eyes were bloodshot and watery. Osby then asked Sullivan to get out of his car and walk toward Osby’s patrol car. Sullivan was very slow to get out of his car, and Osby noticed Sullivan’s speech was slow and mumbled. When asked if he had been drinking prior to driving, Sullivan stated that he had a couple of beers prior to driving. Osby then asked Sullivan if he would submit to field sobriety tests, but Sullivan refused and said he knew he would be going to jail. Sullivan also refused the aleo-sensor test. Osby stated that, based on these facts and his training, it was his opinion that Sullivan was under the influence of alcohol to the extent it was less safe for him to drive.

Two prior incidents were admitted by the trial court as similar acts to show Sullivan’s bent of mind and course of conduct. On July 6, 2006, around 12:30 a.m., Corporal Hight of the Doraville Police Department was entering Interstate 285 from Buford Highway when he noticed a black Nissan 350Z pass him at a high rate of speed. Hight paced the 350Z for about a mile at 85 mph in a 55 mph speed zone. Hight activated his blue lights, but the 350Z continued on for a mile and a half before stopping. During this time, Hight observed that the driver appeared to be digging under the front seat. When the 350Z pulled over, Hight approached Sullivan’s car from the passenger side and observed that Sullivan had bloodshot eyes, his speech was mumbled, and there was an odor of alcoholic beverage coming from inside the car. Hight told Sullivan he could smell alcohol and asked if Sullivan had been drinking. Sullivan said he had had nothing to drink all night. Hight got Sullivan out of his car and asked him to submit to field sobriety tests, which Sullivan refused. While talking to Sullivan, Hight observed that he was swaying and unsteady on his feet and he continued to mumble. Hight read the implied consent warning to Sullivan, who refused to take the breath test. Because he was driving a Mustang police car, Hight called for a transport unit. Hight walked Sullivan over to the guardrail to wait, and Sullivan nearly fell. Hight then searched Sullivan’s car and found two cold bottles of beer under the driver’s seat, one open and one unopened. Although Sullivan was charged with DUI, less safe, the charge was reduced to reckless driving.

On September 3, 2006, uniformed Hall County Sheriff’s Deputy Orme was fueling his marked police car at a convenience store around 2:00 a.m. when he heard an engine revving and noticed a black Nissan 350Z pulling into the gas station. The 350Z passed within two arm lengths of Orme, with the driver’s side nearest Orme. As the 350Z passed, Orme looked directly at Sullivan, who looked back at him. Orme noticed that Sullivan looked really sleepy and tired and his countenance was very droopy. As the 350Z was leaving the lot, Sullivan was gassing the car and spinning his tires. Orme finished fueling his patrol car and was responding to another call when he encountered the 350Z sitting sideways in the road blocking both northbound lanes on Highway 60. Sullivan and another man were outside the vehicle walking around in the rain and discharge from a nearby business’s sprinkler system. The driver’s side door of the 350Z was open and the leather interior was getting soaked. Orme advised Sullivan of this, and Sullivan shut the car door. Orme detected a strong odor of alcohol coming from Sullivan’s mouth and breath and observed that both Sullivan and the other man were staggering around the car. When Orme asked Sullivan how much he had had to drink, Sullivan told him he was not driving, even when Orme said he had seen Sullivan driving. Sullivan refused the alco-sensor test, saying he did not want to do any type of evaluations or incriminate himself. Orme arrested Sullivan and read the implied consent warning. Again, Sullivan refused the testing. Although charged with DUI, less safe, Sullivan was allowed to plead guilty to reckless driving.

1. In his first two enumerations, Sullivan contends that the trial court used the similar transaction evidence for an improper purpose and that, even prior to the enactment of the new Evidence Code, effective January 1, 2013, this Court should not allow consideration of such evidence for any purpose. We disagree.

The trial court conducted a hearing regarding the proffered similar transaction evidence which was offered by the State for the purpose of showing Sullivan’s pattern of declining to take any testing when pulled over, i.e., to show his course of conduct and bent of mind. The trial court allowed the evidence for that limited purpose.

We review the trial court’s findings of fact regarding similar transaction evidence under the clearly erroneous standard and we will not disturb the trial court’s ultimate decision to admit evidence absent an abuse of discretion. See Reed v. State, 291 Ga. 10, 14(3) (727 SE2d 112) (2012) (for similar transaction evidence, we accept the trial court’s factual findings unless they are clearly erroneous; the decision to admit similar transaction evidence is within the trial court’s discretion and will not be disturbed absent an abuse of discretion).

Sullivan argues that the factual differences in the two similar transactions and the charged offense make the allowance of the similar transactions improper.

A transaction does not have to mirror every detail in order to authorize its admission; rather, the proper focus is upon the similarities between the incidents and not upon the differences. Where, as here, such evidence is admitted for the purpose of showing bent of mind, a lesser degree of similarity is required than if introduced to prove identity.

(Citations and punctuation omitted.) Collum v. State, 281 Ga. 719, 723 (4) (642 SE2d 640) (2007).

However, with regard to prior DUI convictions,

it is the simple act of driving while under the influence that establishes the commission of the crime. Evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the defendant has the bent of mind to get behind the wheel of a vehicle when it is less safe for him to do so.

(Citations, punctuation and footnote omitted.) Shy v. State, 309 Ga. App. 274, 276 (1) (709 SE2d 869) (2011). See, e.g., Reese v. State, 252 Ga. App. 650, 652 (2) (556 SE2d 150) (2001) (evidence of prior DUI offense is logically connected to pending charge and relevant to establish accused’s bent of mind).

Here, we find the similar transactions were properly considered by the trial court because, in all three incidents, Sullivan declined to take any of the proffered tests, indicating his awareness that he was likely to fail those tests. As he stated when he refused the testing in the charged incident, he knew he would be going to jail. Similarly, in the Hall County incident, Sullivan refused the testing, saying he did not want to incriminate himself, and in the DeKalb County incident, Sullivan refused all testing.

2. Sullivan contends that the evidence was legally insufficient and the trial court improperly considered his refusal to submit to testing. We disagree.

OCGA § 40-6-391 (a) (1) provides that “[a] person shall not drive or be in actual physical control of any moving vehicle while: . . . [u]nder the influence of alcohol to the extent that it is less safe for the person to drive[.]”

The State can prove this offense by presenting evidence that the defendant refused to take a breath test, as well as the officer’s own observations regarding the defendant’s behavior and the odor of alcohol on his person. See Harris v. State, 307 Ga. App. 847, 848 (706 SE2d 702) (2011); Long v. State, 271 Ga. App. 565, 567 (610 SE2d 74) (2004) (defendant’s refusal to take state-administered chemical test admissible as circumstantial evidence of intoxication).

Here, late at night, Sullivan, stopped at a red light directly across from a marked state trooper vehicle, gunned his car and sped off in excess of the speed limit. When the trooper stopped Sullivan, he noted the strong odor of alcohol and Sullivan’s bloodshot and watery eyes. Sullivan was very slow to exit his car when instructed to do so and spoke slowly or mumbled. Sullivan acknowledged having had a couple of beers, refused to submit to any testing, and said he knew he would be going to jail. In the experienced trooper’s opinion, Sullivan was less safe to drive. See Hinton, supra, 319 Ga. App. at 675-676 (officer’s testimony regarding defendant’s speed, the smell of alcohol, the defendant’s slurred speech and refusal to submit to state-administered testing was sufficient for DUI-less safe conviction); Duncan v. State, 305 Ga. App. 268, 270 (1) (699 SE2d 341) (2010); Crusselle v. State, 303 Ga. App. 879, 880-881 (1) (694 SE2d 707) (2010).

Therefore, we find the trial court did not abuse its discretion in denying Sullivan’s motion for new trial.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

Decided March 21, 2014

Head, Thomas, Webb & Willis, Thomas J. Thomas, for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

       OCGA § 40-6-391 (a) (1).

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

       Ga. L. 2011, p. 99, § 101. The new Evidence Code shall apply to any motion made or hearing or trial commenced on or after January 1, 2013. Sullivan’s trial was conducted on September 21,2012. We decline Sullivan’s request that we find all similar transaction evidence inadmissible for acts committed prior to enactment of this new code.