author: Andrews, Judge.

text:
    A10A1733.
    URSULITA v. THE STATE.
    (706 SE2d 123)
   Andrews, Judge.

Yissel Ursulita appeals after a jury found her guilty of first degree arson and burglary. After reviewing the record, we find no error and affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence at trial was that when police arrived at the victim’s apartment, they found a weight bench that had been slashed, a smoke detector that was ripped out of the ceiling, a damaged Xbox game system, a television that had been put in the bathtub, slashed air mattresses, slashed drywall with chunks missing, and writing on the walls. Officers also found personal papers and clothing that had been put in the oven and set on fire.

An investigator with the fire department testified that there had been a fire started in the oven and, although it was extinguished in its early stages, there was visible smoke damage in the kitchen, den and dining area. The investigator stated that, had the fire not been put out, it could have burned the rest of the apartment.

The officer who initially responded to the call that a burglary had taken place said he talked to the victim Albert Ontivelos, the owner of the apartment, who told him that Ursulita could be responsible for the damage. When the officer and victim were standing in the apartment parking lot, Ursulita drove through the lot at a high rate of speed. The officer stopped Ursulita who admitted to being at the apartment complex earlier in the day, and said she had just recently broken off a relationship with Ontivelos. The officer noticed that Ursulita had a burn mark on her arm and a cut on her finger.

Ursulita was taken into custody and, in her statement to police, admitted causing the damage in Ontivelos’s apartment. Ursulita said she had been living with Ontivelos in his apartment but had moved out a few weeks earlier when Ontivelos ended the relationship. Ursulita said that she went to Ontivelos’s apartment the night before, but her keys did not work in the lock. The next day she went back to the apartment, noticed that the patio door was ajar and went in through that door. Ursulita said she was very upset after she learned that Ontivelos had another girlfriend and when she went into the apartment, she pulled out the smoke alarm, put various items in the oven, poured alcohol on them and set them on fire.

The jury found Ursulita guilty of the arson and burglary charges and not guilty of criminal damage to property in the second degree. This appeal followed.

1. Ursulita argues that her motion for directed verdict should have been granted as to the burglary charge because there was no evidence that she did not have permission to be in the apartment.

The burglary statute, OCGA § 16-7-1 (a) provides in pertinent part: “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters . . . the dwelling house of another.”

Contrary to Ursulita’s argument, there was sufficient evidence from which the jury could conclude that Ursulita entered the apartment without permission. Although Ontivelos did not testify at trial, the evidence was that he had changed the locks after Ursulita moved out and she could no longer use her keys. On the day of the burglary and fire, Ursulita again attempted unsuccessfully to use her keys and then went around to the patio, climbed over the railing around the patio, and went, uninvited, into the apartment through the patio door.

Circumstantial evidence can suffice to prove lack of authority for purposes of the burglary statute. Jones v. State, 258 Ga. 25, 27 (1) (365 SE2d 263) (1988). Further, in a similar case, this Court found that, when the victim gave the defendant a key to her condominium unit, but later changed the lock and did not give the defendant a new key, the authority to enter her condominium had been withdrawn. Hug v. State, 205 Ga. App. 746, 747 (2) (423 SE2d 700) (1992).

Here, Ursulita, by her own evidence, demonstrated that she had no authority to enter the apartment. See Hug, supra. See also Bryant v. State, 282 Ga. 631, 634 (2) (651 SE2d 718) (2007) (testimony that victim had refused to give defendant a new key to her home and reasonable inference that defendant intruded on victim’s privacy sufficient to show lack of authority to enter); Bearfield v. State, 305 Ga. App. 37, 40 (699 SE2d 363) (2010) (defendant’s unauthorized use of code to enter former employer’s facility after it was closed sufficient to show that defendant was without authority to enter).

2. Ursulita also argues that the trial court erred in denying her motion for directed verdict on the arson charge. OCGA § 16-7-60 (a) (5) provides:

A person commits the offense of arson in the first degree when, by means of fire or explosive, he or she knowingly damages or knowingly causes, aids, abets, advises, encourages, hires, counsels, or procures another to damage: Any building, vehicle, railroad car, watercraft, aircraft, or other structure under such circumstances that it is reasonably foreseeable that human life might be endangered.

Ursulita contends that the State did not show that she intended to damage the building nor did it show that it was reasonably foreseeable that human life would be endangered as a result of the fire in the oven. This is incorrect.

There was evidence at trial that Ursulita had ripped out the smoke detector and poured alcohol on the items she put in the oven. The investigator from the fire department testified that the fire was discovered and put out at a very early stage. Had it been undiscovered, he stated that he was reasonably sure that it would have escaped the oven, burned the apartment, and could have spread to the other apartments in the building. Another arson investigator testified that it was “absolutely” foreseeable that this fire could have endangered human life.

In addition, contrary to Ursulita’s argument, there was sufficient evidence of “damage” to support the conviction. The evidence was that there was visible smoke damage on the walls. This was sufficient to constitute “damage” under OCGA § 16-7-60. See Smith v. State, 140 Ga. App. 200 (1) (230 SE2d 350) (1976) (causing smoke damage constitutes arson in the first degree if the other elements of the crime are present).

Another argument raised in this enumeration is that there was no showing that Ontivelos did not consent to the burning of his apartment. Ursulita was charged under OCGA § 16-7-60 (a) (5) which does not mention consent.

3. Ursulita contends that the trial court erred in allowing certain hearsay testimony at trial. Specifically, she argues that an arson investigator who was present when Officer Restrepo interviewed Ursulita in Spanish should not have been allowed to testify as to what Restrepo told him in English that Ursulita said to Restrepo in Spanish. Ursulita cites to no authority in support of this enumeration, and we find none. Even if Restrepo were not available to testify, under the “language conduit” rule,

[a]bsent a motive to mislead, distort or some other indication of inaccuracy, when persons speaking different languages rely upon a translator as a conduit for their communication, the statements of the translator should be regarded as the statements of the persons themselves without creating an additional layer of hearsay.

(Punctuation omitted.) Lopez v. State, 281 Ga. App. 623, 625 (1) (636 SE2d 770) (2006). Moreover, in this case, Restrepo himself testified to the interview with Ursulita, and defense counsel, who did speak Spanish, had the opportunity to question Restrepo closely as to his translation of Ursulita’s statements. Therefore there was no violation of the confrontation clause, and Ursulita can show no harm as a result of this claimed error. See Davis v. State, 281 Ga. App. 855, 863 (7) (637 SE2d 431) (2006) (“As long as the declarant testifies at trial and is available for cross-examination by the defendant, the purpose behind the hearsay rule is satisfied.”).

4. Ursulita argues that she received ineffective assistance of counsel. “To establish ineffective assistance of counsel, [a defendant] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984)[.]” Gross v. State, 262 Ga. 232, 233 (1) (416 SE2d 284) (1992). The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Id. Further, Ursulita must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. Snyder v. State, 201 Ga. App. 66, 70 (8) (410 SE2d 173) (1991). A trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous. Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990).

Decided February 8, 2011.

Hernán, Taylor & Lee, Christopher C. Taylor, Jerome Lee, for appellant.

Daniel J. Porter, District Attorney, Stephen A. Fern, Assistant District Attorney, for appellee.

Ursulita claims that counsel failed to object to the jury verdict after the jury found her guilty of burglary and not guilty of the underlying charge of criminal damage to property. Ursulita argues that the verdicts were inconsistent. “Georgia does not recognize an inconsistent verdict rule, which would permit a defendant to challenge the factual findings underlying a guilty verdict on one count as inconsistent with the findings underlying a not guilty verdict on a different count.” Hines v. State, 276 Ga. 491, 492 (578 SE2d 868) (2003).

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.


source: Caselaw Access Project

author: Phipps, Presiding Judge.

license: Public Domain

text:
    A10A2069.
    McGARITY v. HART ELECTRIC MEMBERSHIP CORPORATION.
    (706 SE2d 676)
   Phipps, Presiding Judge.

Steve McGarity was injured when he made contact with a live electrical wire while visiting real property that was being advertised for sale. McGarity filed a personal injury action against Hart Electric Membership Corporation (HEMC), which had installed and maintained the electrical wire (on private property on which it had an easement), alleging that HEMC had negligently maintained and inspected the wire. HEMC moved for summary judgment, arguing that McGarity was a trespasser and therefore it was not liable because it did not wantonly and wilfully injure him; that it lacked actual or constructive knowledge of the condition which caused McGarity’s injury; and that its policy of inspecting its electrical equipment every eight to ten years, a policy with which it complied in this case, was reasonable as a matter of law. The trial court granted the motion, holding that McGarity was, at best, a licensee, and that, as such, McGarity had failed to create an issue of fact as to whether HEMC wilfully or wantonly injured him or that HEMC breached a duty owed to him. McGarity appeals. For the reasons that follow, we reverse.

We review de novo a trial court’s grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party. To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the nonmovant’s favor, warrant judgment as a matter of law.

Viewed in favor of McGarity, the record shows that on the morning of April 23, 2006, McGarity and a worker he hired to help him move household goods were en route to a store when the worker told McGarity he needed to use the restroom. McGarity told the worker, “I know a spot and I want to look [at it] anyway, it’s for sale.” McGarity suggested that they drive into a nearby subdivision, as he wanted “to look at some lots while it was convenient.” McGarity was “always think[ing] about buying lots” on which to place mobile homes, and a road sign indicated that there were lots available for sale in the subdivision. They drove into the subdivision and got out of the car. As McGarity got out of the car he saw “just ahead,” in an area overgrown with grass and weeds, an object that looked like a bicycle handlebar. McGarity walked over to the object and moved his foot around it to knock down the weeds; he did not realize it was an electrical wire. He “hit it” with his foot and then felt severe pain. McGarity suffered burns to his leg and was rushed to a hospital emergency room and then airlifted to a burn center.

The worker testified that after McGarity got out of the car, he heard a “boom,” saw a flash of light, and saw McGarity airborne. He did not see the wire before McGarity made contact with it, but he saw it immediately thereafter. The worker stated that there was no box or concrete surrounding the wire and that it did not appear that anything had been around the wire for quite some time.

A sheriffs deputy testified that he went to the scene of the incident shortly after it occurred. The wire was located about ten to twelve feet from the roadway and protruded about two-and-a-half feet out of the ground. Vegetation surrounding the wire was thick. The deputy testified that he saw no concrete pad or box in the area.

A captain with the sheriffs department testified that, upon receiving a call from the hospital, he went to the scene of the incident to investigate. He observed that there was no concrete base nor a junction box or “green box” where the incident occurred. He had patrolled the area for a number of years and had never seen a junction box in the area where the incident occurred. He added that the brush had grown up around the wire and “it didn’t look like there’d been a box or anything around it for a while.” The captain stated that the street on which the incident occurred was open and there were no “No Trespassing” signs.

One of the HEMC linemen who went to the scene shortly after the incident testified that the wire was protruding from the ground and that it should not have been. He stated that the wire should have been in a junction box and the box should have been locked onto a concrete pad. He stated that the boxes are placed over electrical wires to keep people from coming in contact with the charged wires.

The safety director for HEMC testified that he went to the scene shortly after the incident occurred and that there was no junction box or concrete pad in place. He acknowledged that it is HEMC’s duty to safely and properly install and inspect its electrical equipment, that there should have been a pad and a locked junction box in place to prevent the public from coming in contact with the wire, and that the condition of the equipment on the day of the incident presented a risk to the public. He conceded that someone coming into contact with a wire carrying 7,200 volts — like the wire with which McGarity came in contact — could be seriously injured or killed, and that HEMC bore sole responsibility for inspecting its wires. He added that inspections of the wires are necessary because “environmental issues” could occur and “the boxes themselves” needed to be maintained.

In its answers to McGarity’s interrogatories, HEMC stated that it had installed the electrical wire at issue in August 2000 and thereafter had inspected its electrical distribution systems on about a ten-year basis.

In support of its summary judgment motion, HEMC submitted an affidavit from an electrical engineer, as an expert in electric utility design engineering, stating that, based on his interviews and reviews of HEMC’s records, inter alia, the equipment at issue was installed pursuant to industry practice and was inspected after installation. He opined that HEMC’s practice of inspecting its electrical equipment every “nine to ten years” was in compliance with the National Electrical Safety Code (NESC).

HEMC’s vice president of engineering and operation testified that the electrical equipment in the subdivision was inspected in January 2001, which he said confirmed that a junction box had been installed on the lot at issue. He added that the box might have been stolen, and that electrical wiring had been stolen from the subdivision previously.

Another HEMC employee testified that when he mapped the locations of junction boxes in the subdivision on August 22, 2000, a junction box was in place at the location at issue.

1. McGarity contends that the trial court erred in finding as a matter of law that he was on the premises as “at best, a licensee” when there was evidence from which a jury could find that he was an invitee. We point out that HEMC does not argue on appeal, as it did below, that McGarity was a trespasser at the time of the incident; indeed, HEMC states that the trial court properly granted summary judgment upon finding, inter alia, that McGarity was at best a licensee at the time of the incident. Accordingly, we need not discuss whether there also was evidence that he was a trespasser.

The threshold issue in a negligence action is whether and to what extent the defendant owes a legal duty to the plaintiff. It is McGarity’s status as an invitee, licensee, or trespasser that determines the duty of care owed him by HEMC. For instance, the owner or occupier of land has a duty to exercise ordinary care to keep the premises and approaches safe for an invitee, while the owner or occupier has a duty not to wilfully or wantonly injure a licensee after the owner or occupier has become aware of or should have anticipated the presence of the licensee near the peril. The trial court’s ruling as to HEMC’s entitlement to summary judgment was based in part on its finding that McGarity was a licensee.

An invitee is one who, by express or implied invitation, has been induced or led to come upon premises for any lawful purpose; he may be deemed an invitee if his presence on the property is of mutual benefit to him and the owner or occupier. A licensee is one who is permitted, either expressly or impliedly, to go on the premises of another, but merely for his own interest, convenience, or gratification. In deciding whether there is mutual benefit and a visitor is an invitee, the determining question is whether the owner or occupier of the premises will receive some benefit, real or supposed, or has some interest in the purpose of the visit. Stated another way, the question is whether the person coming onto the premises had present business relations with the owner or occupier which would render his presence of mutual benefit to both, or whether his presence was for his own convenience, or was for business with someone other than the owner or occupier. If the relationship was one of mutual interest to the parties, the injured party was an invitee of the owner. Monetary consideration is not essential to invitee status. And the fact that the parties were not actually in a contractual relationship at the time of the incident does not preclude the plaintiff from being an invitee. It is sufficient to show that each party was moved by a lawful purpose or interest in the object and subject matter of the invitation.

HEMC urges that McGarity’s stated purpose for visiting the property, to look at property for sale in addition to using the location as a restroom, was not credible. But credibility is an issue for the finder of fact, and there was evidence that McGarity visited the property to look at real property that was being offered for sale; in fact, the trial court stated in its findings of fact that McGarity and the worker entered upon the property “to look at it because he was in the market for a lot and to urinate.” While HEMC urges that McGarity got out of the car only to change drivers and not to view the property, the evidence does not conclusively establish that assertion. A jury would be authorized to conclude that the property owner, who was advertising the property for sale, would want a person looking to buy property to visit the property and assess whether he was interested in purchasing it. Thus, there was evidence of the requisite mutuality of interest, advantage or potential benefit which would support a determination that McGarity was not on the property merely for his own interest or convenience. Evidence of McGarity’s status as an invitee was not nullified by evidence that he had a dual purpose for being on the property, or by evidence that he may not have had a present intent to purchase the property. A jury could find from the evidence that the property owner received the benefit of a potential sale from McGarity’s visit to the property, and that McGarity was an invitee rather than a licensee.

HEMC argues that, to be an invitee, McGarity was required to demonstrate that he was on the property to further the business of HEMC. But the authority it cites to support this contention, Jarrell v. JDC & Assocs., is inapposite; in that case, the plaintiff was deemed a licensee as a matter of law where he visited the property to review work performed by one of his employer’s vendors, not in connection with the business of the property owner or occupier. Here, there was evidence that McGarity visited the property in connection with the business of the property owner. HEMC points to no authority requiring a plaintiff who was injured due to defective utility equipment to demonstrate that he was an invitee of the utility company (which occupied the property pursuant to an easement) rather than an invitee of the property owner.

There also was evidence that McGarity was a licensee, as HEMC concedes. Consequently, summary judgment is precluded. A jury should decide whether McGarity was a licensee or an invitee, and then consider HEMC’s liability as occupier of the premises under the appropriate premises liability standard.

2. McGarity contends that a jury issue was presented as to whether HEMC exercised ordinary care to keep the premises safe when there was evidence that it failed to conduct reasonable inspections of its electrical equipment. Because we cannot conclude as a matter of law that HEMC’s inspection procedure was reasonable under the circumstances, we agree.

Assuming, without deciding, that McGarity was an invitee, the following standard of care would apply. Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such person for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe. A power company is charged with the duty of exercising ordinary care in the construction and maintenance of its wires, poles, transformers and equipment. Here, there was evidence that the electrical wire presented a safety hazard, that the wire should have been covered with a junction box and placed on a concrete pad, and that at the time of McGarity’s injury it was not. There was no evidence that any inspection was performed for at least five years between the initial post-installation inspection and the incident.

Evidence concerning the reasonableness of HEMC’s inspection policy included the following: HEMC’s safety director testified that HEMC is subject to NESC rules regarding installation and maintenance of underground wires, and that all the NESC requires is inspections “as experience has shown needed.” The safety director understood that to mean “from past experience how often you need to look at the wire and do an inspection,” and stated that HEMC was in compliance with that requirement.

HEMC’s vice president of engineering and operation testified that HEMC was responsible for installing, maintaining and conducting periodic inspections of the equipment, and that HEMC inspects its equipment upon installation and then on an eight-to-ten-year basis. He averred that this interval complied with NESC standards, which do not specify any particular time interval for inspections, but require power companies to perform inspections based on what their experiences have shown to be necessary. HEMC’s expert witness opined that HEMC’s policy of inspecting its electrical equipment every “nine to ten years” is reasonable and consistent with industry standards, namely the NESC.

Although he argued that expert testimony on the issue was not required, McGarity argued that the following testimony presented an issue of fact as to the reasonableness of HEMC’s inspection procedure. HEMC’s safety director testified that (1) HEMC is accredited through the National Rural Electric Cooperative Association (NRECA); (2) to maintain its accreditation (or at least to receive NRECA’s highest score) HEMC must inspect 30 percent of its underground wires each year; (3) in some years HEMC inspects less than 30 percent of its underground wires; and (4) it is important to inspect and maintain the junction boxes because “they do rust and they do get knocked off every now and then.”

HEMC claims that its witness’s testimony regarding the NRECA guidelines was not admissible because no witness introduced a copy of the standards into evidence. But even assuming, arguendo, that the testimony of HEMC’s witness was insufficient to deem the NRECA guidelines admissible, the argument that to avoid summary judgment McGarity was required to present expert testimony on the point is without merit. Contrary to the trial court’s finding, the requirement for expert testimony is not absolute and depends upon the circumstances of the case. Indeed, some acts performed by professionals are acts of simple negligence which would not require proof by expert evidence. McGarity’s claims of negligence do not involve issues that require highly specialized expert knowledge with respect to which a layperson can have no knowledge at all. Under the circumstances presented here, we find that McGarity’s claims require that a jury determine the reasonableness of the frequency of HEMC’s inspections of its live electrical wires, not the quality of any such inspections. The reasonableness of the frequency of inspections is routinely decided by jurors. A jury can assess whether the circumstances of this case required more frequent inspections, taking into account, for example, the nature of the business, the nature of the dangerous condition, and the property location. Here, a live electrical wire was placed just feet from the roadway in a subdivision with lots available for sale, HEMC installed the underground wire such that it protruded from the ground, and HEMC knew that its equipment had been previously stolen from that subdivision and that junction boxes become rusted and occasionally get “knocked off.” Evidence showed that the box and pad were missing long enough for the wire to have become overgrown with weeds. A jury could find without expert testimony that HEMC had a duty to conduct more frequent inspections to ensure that its live electrical wires were not left uncovered.

The fact that HEMC may have complied with its own interpretation of NESC’s vague requirement regarding the frequency of inspections (“as experience has shown needed”) is not determinative. First, McGarity has not alleged that HEMC was negligent because it violated an NESC standard.

Second, as stated above, a power company owes a duty to maintain its equipment in such a manner and at such a location as not to injure persons who might reasonably be expected to come in contact with such lines. From the evidence presented, a jury could conclude that HEMC was negligent in failing to discover the exposed live wire through more frequent inspection of its equipment. Even if McGarity was a licensee rather than an invitee, HEMC could be liable because “it is usually wilful or wanton not to exercise ordinary care to prevent injury to a person who is known to be or may reasonably be expected to be within a hidden peril on one’s premises,” and there was evidence from which a jury could find that McGarity’s presence on the property (which was being advertised for sale) may reasonably have been expected. Thus, there was evidence of a material issue of fact regarding whether HEMC exercised the requisite degree of care, and the trial court erred in granting HEMC’s motion for summary judgment.

3. McGarity contends that a question of fact remains as to the parties’ relative knowledge of the hazard and the reasonableness of their actions. We agree.

Where the injured party is an invitee, failure to discover a defect through the exercise of reasonable care in inspecting the premises gives rise to constructive knowledge where the owner or occupier had an opportunity to discover the dangerous condition and to remedy it. A jury could find that the dangerous condition had existed for a sufficient time for an inspection to have discovered it and for HEMC to have removed the danger. Questions of fact remain, therefore, as to HEMC’s constructive knowledge of the hazard. Moreover, McGarity testified that he did not know that the object he made contact with was an electrical wire. Under the facts presented, whether McGarity exercised reasonable care for his own safety is a question for the jury.

Decided February 8, 2011

Law & Moran, Peter A. Law, Jeffrey P. Shiver, for appellant.

McNatt, Greene & Peterson, Hugh B. McNatt, Troy L. Greene, Walter J. Gordon, Sr., Timothy K. Hall, for appellee.

Judgment reversed.

Miller, P. J., and McFadden, J., concur.

        Latson v. Boaz, 278 Ga. 113 (598 SE2d 485) (2004) (citations omitted).

       See Matlock v. Cobb Elec. Membership Corp., 289 Ga. App. 632, 633-634 (658 SE2d 137) (2008) (a trespasser is one who, though peacefully or by mistake, wrongfully enters upon property owned or occupied by another).

        Barrett v. Ga. Dept. of Transp., 304 Ga. App. 667, 669 (1) (697 SE2d 217) (2010).

        Matlock, supra at 633.

       See Jarrell v. JDC & Assocs., 296 Ga. App. 523, 525 (675 SE2d 278) (2009); Rozy Investments v. Bristow, 276 Ga. App. 278, 279 (4) (623 SE2d 171) (2005).

       See Matlack, supra at 634; Jones v. Barrow, 304 Ga. App. 337, 339 (1) (696 SE2d 363) (2010).

        Matlack, supra.

        Mut. Life Ins. Co. &c. v. Churchwell, 221 Ga. App. 312, 313 (2) (471 SE2d 267) (1996); D. J. Powers Co. v. Hendry, 190 Ga. App. 297, 298 (379 SE2d 1) (1989); see Hicks v. M. H. A., Inc., 107 Ga. App. 290, 292 (2) (b), n. Í (129 SE2d 817) (1963) (plaintiff who visited tenants of shopping center owner/defendant was an invitee because success of shopping center venture depended upon whether tenants did a satisfactory volume of business).

        Mut. Life Ins. Co., supra; Moore-Sapp Investors v. Richards, 240 Ga. App. 798, 799 (1) (a) (522 SE2d 739) (1999).

       See Flint River Cotton Mills v. Colley, 71 Ga. App. 288, 291 (30 SE2d 426) (1944) (on motion for rehearing).

        Frankel v. Antman, 157 Ga. App. 26, 27 (276 SE2d 87) (1981); see Walker v. Daniels, 200 Ga. App. 150, 154 (1) (407 SE2d 70) (1991), rev’d on other grounds, Bd. of Regents &c. v. Daniels, 264 Ga. 328, 329 (446 SE2d 735) (1994).

        Findley v. Lipsitz, 106 Ga. App. 24, 27 (1) (126 SE2d 299) (1962).

        Burkhead v. American Legion &c., 175 Ga. App. 56-57 (332 SE2d 311) (1985).

       See Holmes v. Achor Center, 249 Ga. App. 184, 192 (2) (b) (547 SE2d 332) (2001).

       See generally Atkins v. Tri-Cities Steel, 166 Ga. App. 349, 350-351 (304 SE2d 409) (1983) (summary judgment not proper because jury was authorized to conclude that decedent was invitee as there was evidence that owner would want him to be visible on premises) (physical precedent only).

       See Frankel, supra; Findley, supra.

       See Brown v. Hall, 81 Ga. App. 874, 881 (60 SE2d 414) (1950).

       See Howard v. Gram Corp., 268 Ga. App. 466, 469 (602 SE2d 241) (2004) (even if the injured party does not have a present intent to make a purchase upon entry, the existence of a possible economic exchange is of mutual benefit to both parties); Mut. Life Ins. Co., supra (visitor is an invitee where owner or occupier will receive some benefit from the visit, real or supposed).

       See Brown, supra.

       Supra.

       Id.

       See Hartley v. Macon Bacon Tune, 234 Ga. App. 815, 817-818 (507 SE2d 259) (1998); Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 876 (2) (392 SE2d 535) (1990).

       Note that HEMC concedes in its brief that it was an occupier of the land. See generally Matlock, supra (employing premises liability analysis in negligence action brought against power company as owner/occupier of land where plaintiff struck guy wire on private property on which power company had easement).

       OCGA § 51-3-1.

        Schuessler v. Bennett, 287 Ga. App. 880, 886 (3) (652 SE2d 884) (2007); Collins v. Altamaha Elec. Membership Corp., 151 Ga. App. 491-492 (1) (A) (260 SE2d 540) (1979).

       See Dayoub v. Yates-Astro Termite Pest Control Co., 239 Ga. App. 578, 581 (2) (b) (521 SE2d 600) (1999) (private standards are not admissible without expert testimony to identify, authenticate and explain them).

       See Ga. Real Estate &c. v. Krouse, 299 Ga. App. 73, 76 (1) (681 SE2d 737) (2009).

        Kneip v. Southern Engineering Co., 260 Ga. 409, 410 (3) (395 SE2d 809) (1990).

       Compare Jordan, Jones & Goulding, Inc. v. Wilson, 197 Ga. App. 354, 355-356 (1) (398 SE2d 385) (1990).

       See J. H. Harvey Co. v. Reddick, 240 Ga. App. 466, 471 (1) (b) (522 SE2d 749) (1999).

       See generally id.; Three Notch Elec. Membership Corp. v. Bush, 190 Ga. App. 858-859 (1) (380 SE2d 720) (1989).

       See generally Ga. Real Estate &c., supra; J. H. Harvey Co., supra; Three Notch Elec. Membership Corp., supra (question of fact presented as to whether maintenance of power line without modification or warning constituted negligence where there was evidence that power company did not negligently install power lines, but had notice of dangerous change in conditions).

       Compare Lynch v. Ga. Power Co., 185 Ga. App. 256 (363 SE2d 777) (1987).

        Habersham Elec. Membership Corp. v. Dalton, 170 Ga. App. 483, 485 (317 SE2d 312) (1984).

       See Schuessler, supra at 885 (3).

       See Hartley, supra at 817.

        Christensen v. Overseas Partners Capital, 249 Ga. App. 827, 829 (1) (549 SE2d 784) (2001).

       See id.

        Schuessler, supra at 886-887 (3); Christensen, supra.

       See generally Howard, supra; Pylant v. Samuels, Inc., 262 Ga. App. 358, 361 (2) (585 SE2d 696) (2003).


author: PHIPPS, Presiding Judge.

text:
    A10A2106.
    PITTMAN v. THE STATE.
    (706 SE2d 126)
   PHIPPS, Presiding Judge.

After a jury trial, Nicholas Pittman was convicted of family violence battery for kicking his brother. Pittman appeals, arguing that he lacked mental capacity to commit the offense as his behavior was “clearly attributable to the after-effects of [a] concussion” he had suffered one week earlier. We affirm the conviction.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. To sustain a conviction, the evidence must be sufficient to enable a rational trier of fact to find the appellant guilty of the crimes charged beyond a reasonable doubt.

So viewed, the evidence shows that on the evening of the incident, August 14, 2008, Pittman was at home with his wife. About a week earlier, on August 6, 2008, Pittman had suffered a concussion and was taken to the hospital for treatment. In the interim, Pittman had been having difficulty communicating, often blacked out, sometimes screamed that he was being attacked, needed assistance with basic tasks, and had to be supervised.

Some time after 7:00 p.m. on August 14, 2008, Pittman had consumed a portion of an alcoholic beverage, though his wife opined that it was not enough to render him intoxicated. Pittman went to bed, and when his wife attempted to straighten the covers, he jumped out of bed, screaming and exclaiming that someone was trying to kill him. Pittman then made a telephone call and asked someone to come get him because people were trying to kill him. Pittman ran out of the house and into the street, falling down and yelling. Pittman’s wife was unable to calm him down.

Pittman’s brother, Terrell Pittman, arrived at the house and saw Pittman talking to law enforcement officers. Pittman told Terrell Pittman that he and his wife had been arguing and he wanted to go home with Terrell Pittman; the officers did not object. When Pittman and Terrell Pittman arrived at their destination, Pittman continued to scream and beg for help. Terrell Pittman could not calm him down, and he called 911. A sheriffs deputy arrived to find Pittman arguing with and apparently trying to start a fight with Terrell Pittman, cursing and yelling loudly, and refusing to calm down or go inside the house. According to another brother of Pittman, who also was present, Terrell Pittman was not trying to help Pittman; rather Terrell Pittman “kept saying smart things” and remarking that Pittman “was faking it.” While the deputy was placing Pittman under arrest for disorderly conduct, Pittman kicked Terrell Pittman in the leg, leaving a mark. Although Pittman’s wife and his other brother testified that Pittman did not appear to them to be intoxicated, the deputy testified that Pittman had a strong odor of alcohol on his breath and appeared to be intoxicated. Terrell Pittman also testified that Pittman had a strong smell of alcohol about him.

OCGA § 16-5-23.1 (a) provides that a person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another. OCGA § 16-5-23.1 (f) provides, in relevant part, that if the offense of battery is committed between persons living or formerly living in the same household, then such offense shall constitute the offense of family violence battery.

Decided February 8, 2011.

Carrol L. Perrin, for appellant.

As discussed above, there was evidence that Pittman had suffered a concussion about a week before the underlying incident and in the interim had been behaving erratically. But there was also evidence that Pittman smelled of alcohol, that he had consumed alcohol earlier that evening, that he appeared to be intoxicated, and that he had been arguing with and trying to fight his brother shortly before he kicked him.

Contrary to Pittman’s argument, evidence that he had suffered a concussion approximately a week earlier did not demand a finding that he lacked the requisite criminal intent to commit the battery as charged. Georgia law presumes every person is of sound mind and discretion; criminal trials begin with the rebuttable presumption that the defendant is sane, and this presumption is evidence. The jury was free in this case to reject testimony that a concussion negated Pittman’s ability to form criminal intent and to conclude instead that he intended to commit the offense, perhaps inferring from the evidence that his conduct was attributable to his voluntary intoxication and anger at Terrell Pittman, who had summoned law enforcement and accused him of “faking” his injury. Conflicts in the testimony of the witnesses are for the jury to resolve. This includes conflicts regarding the accused’s intent to commit the crime charged. Where, as here, there is sufficient evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld.

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

Donald E. Moore, Solicitor-General, Donald L. Hudson, Jr., Assistant Solicitor-General, for appellee.

       OCGA§ 16-5-23.1 (f).

        Meeks v. State, 274 Ga. App. 517, 517-518 (618 SE2d 152) (2005) (citation omitted).

        Durrence v. State, 287 Ga. 213, 215 (1) (a) (695 SE2d 227) (2010).

       Id.

       See Larsen v. State, 253 Ga. App. 196, 198 (1) (558 SE2d 418) (2001) (voluntary intoxication is not an excuse for any criminal act).

       See generally Campbell v. State, 258 Ga. App. 863, 864-865 (575 SE2d 748) (2002) (criminal intent to commit aggravated battery inferred from fact that defendant was visibly angry with victim and the incident occurred after a heated verbal confrontation).

       See Ward v. State, 274 Ga. App. 511, 512 (1) (618 SE2d 154) (2005).

       Id.

       Id.


author: McFADDEN, Judge.

text:
    A11A0021.
    In the Interest of D. M., a child.
    (706 SE2d 683)
   McFADDEN, Judge.

A delinquency petition was filed in the Juvenile Court of DeKalb County, accusing 14-year-old D. M. of committing acts which, if committed by an adult, would constitute two counts of aggravated assault with a deadly weapon, and one count each of criminal street gang activity, possession of a handgun by a minor, possession of a firearm during the commission of a crime, and carrying a pistol without a license. After a hearing, the juvenile court adjudicated D. M. delinquent for all of the alleged offenses and entered a designated felony order, committing him to the Department of Juvenile Justice for 60 months, 48 of those months to be served in restrictive custody.

D. M. appeals, challenging the sufficiency of the evidence supporting the adjudication as to criminal street gang activity, the juvenile court’s failure to merge two of the weapons offenses, and the effectiveness of his counsel. Contrary to D. M.’s claims, there is sufficient evidence to support the criminal gang activity adjudication. The weapons offenses do not merge, because each requires proof of a fact that the other does not. As to ineffective assistance, we remand the case to the juvenile court for a hearing, as this appeal was D. M.’s first opportunity to raise that claim.

1. In reviewing an adjudication of delinquency, this court construes the evidence and all reasonable inferences therefrom “in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged.” (Citation and punctuation omitted.) In the Interest of C. R., 294 Ga. App. 164 (669 SE2d 193) (2008). So construed, the evidence shows that on June 24, 2009, D. M., his older brother D. T., and at least one other young man traveled by car to an apartment complex and came upon Deshaun Hooker and Hooker’s brother. D. M. and the others got out of the car, each of them wearing a black bandana around his neck or face, and began firing gunshots at Hooker and his brother. According to Hooker, both D. M. and D. T. had the reputation of being members of the Gangster Disciples gang. A police detective, who was qualified as an expert in gang investigations, also testified that D. M. and D. T. were known members of the Gangster Disciples, and that D. M. had previously admitted to him that he was a member of that gang. The detective further testified that a black bandana is attire associated with the Gangster Disciples and that wearing such a bandana during a shooting is particularly significant because it “proclaim[s] to the world that they are a member and that this is a gang act[.]”

OCGA § 16-15-4 (a) makes it “unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of any offense enumerated in paragraph (1) of Code Section 16-15-3.” Those enumerated offenses include any crime “that involves violence, possession of a weapon, or use of a weapon. . . .” OCGA § 16-15-3 (1) (J). An isolated offense by a member does not necessarily establish criminal gang activity. Rodriguez v. State, 284 Ga. 803, 808 (2) (671 SE2d 497) (2009). There must be “a specific intent to further [the gang’s] criminal purposes. [Cits.]” Id. at 807 (1). “[A] conviction under OCGA § 16-15-4 (a) requires that there ‘be some nexus between the enumerated act and an intent to further street gang activity.’ [Cit.]” (Punctuation omitted.) In the Interest of C. P., 296 Ga. App. 572, 575 (675 SE2d 287) (2009).

D. M. argues that the state failed to show that he is a member of a gang or that there is a nexus between the shooting and an intent to further street gang activity. But the evidence recounted above, including D. M.’s admission that he is a member of the Gangster Disciples and the expert testimony that wearing the black bandana was a proclamation that the shooting was a gang act, established that D. M. is a gang member and that there is a nexus between the shooting and an intent to further gang activity. Accordingly, “[t]his evidence was sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to support [D. M.’s] adjudication of delinquency for participation in criminal street gang activity. . . . [Cit.]” In the Interest of X. W., 301 Ga. App. 625, 629-630 (3) (688 SE2d 646) (2009). See also In the Interest of C. P., supra at 575-576 (sufficient evidence where juvenile wore gang colors, admitted gang membership, and officers opined based on training and experience that alleged acts were committed to further gang activity); Warren v. State, 245 Ga. App. 768, 769 (1) (b) (538 SE2d 840) (2000) (sufficient evidence that drive-by shooting was gang activity included officer testimony that blue bandana found at crime scene was a gang symbol).

2. D. M. contends that the disposition for carrying a pistol without a license is void because it was proved by the same facts that established, and is a lesser included offense of, possession of a handgun by a minor. In determining whether one crime is included in another, we apply the required evidence test. Drinkard v. Walker, 281 Ga. 211, 212-214 (636 SE2d 530) (2006); Taylor v. State, 304 Ga. App. 395, 397 (1) (696 SE2d 686) (2010).

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. As this court [previously] stated . . ., a single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

(Punctuation and footnotes omitted.) Drinkard, supra at 215.

Contrary to D. M.’s contention, the statutes defining the offenses of carrying a pistol without a license and possession of a handgun by a minor each required proof of at least one fact that the other did not. Among other things, the applicable version of OCGA § 16-11-128 (a) required proof that a person carried a pistol or revolver outside his home, motor vehicle or business without having a valid license on his person, whereas OCGA § 16-11-132 (b) required proof that a person under the age of 18 had possession or control of a handgun. Because proof of the fact that D. M. was under the age of 18 was not required to establish a violation of OCGA § 16-11-128, and proof of the facts that D. M. carried a pistol outside his home, vehicle or business without a license were not necessary to show a violation of OCGA § 16-11-132, the offenses did not merge, and D. M. was not exempt from adjudication and punishment for each offense. See generally Blanch v. State, 306 Ga. App. 631, 635 (4) (703 SE2d 48) (2010) (no merger where each offense required proof of a fact not required to establish the other).

3. D. M. asks that we remand the case to the trial court for an evidentiary hearing on his claim of ineffective assistance of counsel, and the state agrees that the case should be remanded because this appeal presented the first opportunity for the issue to be raised by appellate counsel. “Generally, when the appeal presents the earliest practicable opportunity to raise an ineffectiveness claim, and the claim is indeed raised for the first time on appeal, our appellate courts remand the case to the trial court for an evidentiary hearing on the issue.” (Citation and punctuation omitted.) Ruiz v. State, 286 Ga. 146, 149 (2) (b) (686 SE2d 253) (2009). Accordingly, we remand the case to the juvenile court for a hearing and ruling on the issue of ineffective assistance of counsel. See Acey v. State, 281 Ga. App. 197, 203 (4) (635 SE2d 814) (2006).

Judgment affirmed and case remanded with direction.

Phipps, P. J., and Andrews, J., concur.

Decided February 8, 2011.

Ford & Harrison, Joshua R. Drexler, Stephen M. Reba, for appellant.

Gwendolyn Keyes Fleming, District Attorney, Elisabeth G. MacNamara, Sherd C. Grant, Assistant District Attorneys, for appel-lee.


text:
    A10A1658.
    VAUGHN v. THE STATE.
    (706 SE2d 137)
   Andrews, Judge.

Christopher Vaughn appeals after a jury found him guilty of child molestation and sexual exploitation of children. Vaughn argues that the evidence was insufficient to support the verdict, that he received ineffective assistance of counsel, that the trial court erred in not allowing him to call a witness at trial, and that the trial court also erred in limiting his questioning of a witness at the hearing on his motion for new trial. After reviewing the record, we conclude there was no error and affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence at trial was that Vaughn was living in the same house as the two victims, K. F. and D. J., during the time the crimes at issue were committed. K. F. was five years old at the time, and D. J. was two years old. Vaughn was a friend of Bart Jordan, who was the biological father of D. J. and the stepfather of K. F. The house belonged to Jordan’s mother, and he and his brother David lived there with the two girls. For some months during the summer of 2004, Vaughn lived at the house and slept on the sofa in the living room.

David Jordan testified that in August he borrowed his mother’s camera and, when he looked at pictures on a memory stick from the camera, discovered nude photographs of his nieces. Jordan told his mother about the pictures, and she reported them to the police.

At the forensic interview of K. E, she said that Vaughn had taken photographs of her and D. J. with their clothes off. She said that her sister was asleep and Vaughn took her clothes off and photographed her. Although K. F. was called to testify at trial, she stated that she was scared and denied that anyone had ever taken her picture without her clothes on.

D. J., who was two years old at the time the pictures were taken and was four at the time of trial, testified that Vaughn touched her “private part.” She also said that Vaughn had taken pictures of her and K. F. while they were taking a bath.

David Jordan testified that sometimes Vaughn would go to work with him to help out but stated that Vaughn did not go to work on June 16 and 21. In addition, the owner of the company that David Jordan worked for testified that, after checking his records, Vaughn did not come in to work on June 16 or 21. Although Bart Jordan was not working and was watching the girls during the time period in question, Susan Jordan, the girls’ grandmother, testified that Vaughn would sometimes tell her not to wake Bart as she was leaving for work, saying that he would look after the girls.

The clinical psychologist who treated both girls said that D. J. told her that Vaughn had taken pictures of her “butt” and touched her “butt.” D. J. also said that Vaughn had taken pictures of K. F. and touched her “butt.” In her discussions with K. E, the psychologist said that K. F. told her that Vaughn touched her “private part.” K. F. also told her that she was scared to testify in court, saying “what if Chris gets on to me; he told me not to tell.” The psychologist testified that throughout all the sessions with both girls, the girls were consistent in their recitation of what occurred and that Vaughn was the person who took the photographs and touched them.

Vaughn was charged with three counts of child molestation, two counts alleged that he had unclothed and engaged in a lewd exhibition of the genitals and pubic area of K. F. and D. J., and one count alleged that he had inserted his finger into the vagina of K. F. Vaughn was also charged with three counts of sexual exploitation of children in violation of OCGA § 16-12-100 (b) (5) for taking digital photographs of K. F. and D. J. that showed their genitals and pubic area.

1. Vaughn argues on appeal that the evidence was insufficient to support the sexual exploitation of children charge because, although the photographs had a day and time stamped on them, there was no month or year. Vaughn also argues that D. J. was only two years of age at the time of the alleged incidents and her testimony could not be believed. He points out that D. J. testified at trial that he took the photographs while she was in the bathtub, but the photographs do not show a bathtub. Further, Vaughn claims that there was no evidence that he was ever alone with the girls, and that at trial, K. F. stated that no one had taken pictures of her without her clothes. In addition, he argues that the girls’ testimony was at times erratic and, when interviewed by the Department of Family and Children Services shortly after the incidents were alleged to have taken place, the girls made no mention of them. He also points out that K. F. said he touched her while giving her a bath, and Bart Jordan’s testimony was that Vaughn never gave the girls a bath.

“Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” Herring v. State, 263 Ga. App. 470 (588 SE2d 286) (2003). Moreover, the victim’s testimony standing alone, is sufficient to support the convictions. Vaughn v. State, 301 Ga. App. 391, 392 (687 SE2d 651) (2009).

In this case, the girls’ testimony, although it varied as to details, was consistent throughout that it was Vaughn who touched them and Vaughn who took the photographs. The interviewers said the girls did not appear to be coached. Although K. F. refused to testify at trial, she told the psychologist that she was afraid of Vaughn, and there was testimony that this was not uncommon in victims of abuse. Moreover, the jury viewed the forensic interview of K. F. and could make its own determination as to her credibility.

2. Vaughn also argues that the trial court erred in refusing to allow him to call a witness who was not disclosed to the State prior to trial. On the day of trial, defense counsel stated that she wanted to call the victim’s mother to testify about another allegation of child molestation made by K. F. Defense counsel said she knew about the witness the week before but did not inform the State until just before the jury was being brought in on the morning of trial. The trial court asked defense counsel if she wanted a continuance, and she responded that she did not, but rather requested a “delay.” The State objected and the trial court denied the request for a delay. Vaughn now argues that the trial court should have allowed the witness to testify because the State made no showing that it would be prejudiced by the mother’s testimony and there was also no showing of bad faith on the part of defense counsel. Vaughn cites to OCGA § 17-16-6 which provides:

If at any time during the course of the proceedings it is brought to the attention of the court that the [defendant] has failed to comply with the requirements of this article, the court may order the [defendant] to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the [defendant] from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. . . .

As previously stated, the trial court first asked defense counsel if she wanted a continuance, and she said she did not. Moreover, contrary to Vaughn’s argument, the above Code section does not require the trial court to make a finding of prejudice or bad faith. “(I)n enacting OCGA § 17-16-6, the legislature did not impose a rigid formulation or grant an exclusive remedy ... or a fatal consequence . . . for failure to comply with the discovery mandates. Instead, it cloaked the trial court with the discretion to use its own judgment to ensure a fair trial.” (Punctuation omitted.) Acey v. State, 281 Ga. App. 197, 199-200 (635 SE2d 814) (2006).

Hill v. State, 232 Ga. App. 561 (502 SE2d 505) (1998), relied on by Vaughn, is not on point. In that case, defense counsel was unable to state what the expected testimony would be, and therefore there was no evidence from which the court could conclude that the defendant acted in bad faith or that the State would have been prejudiced. Id. at 563. Here, defense counsel stated what she expected the testimony to show. Counsel said that she had spoken to the mother and “learned through her a lot of history about the case, which I think is relevant to show the intentions of some of the State’s witnesses. I also learned that there is a videotaped interview of one of the children where she has accused another man in Woodstock of committing the same act as she has accused my client of.” Defense counsel then stated that she might need to do additional investigation depending on what the video revealed. The trial court questioned defense counsel about why she waited so late to interview the mother, why she did not notify the State as soon as she learned of the mother’s evidence, and why she had not attempted to subpoena the videotape. The tried court then asked defense counsel twice if she wanted a continuance.

The trial court had sufficient information to determine whether the State would be prejudiced by the late disclosure of this witness and videotape. The requirement of prejudice to the State is satisfied because the State had no notice of the witness or the videotape until the day of trial and thus had no opportunity to interview the witness or view and investigate the videotape. Acey, supra at 200. The requirement of bad faith is satisfied because nothing in the record indicates that Vaughn did not know of this witness or videotape until the day of trial. Id. There was no abuse of discretion in the trial court’s exclusion of this witness.

3. Vaughn also argues that the trial court erred in not allowing him to introduce evidence of a conviction of one of the State’s witnesses. But as the State points out, the trial court reconsidered its ruling, and defense counsel was able to tender the conviction. There is no merit to this enumeration.

4. Vaughn contends that he received ineffective assistance of counsel. “To establish ineffective assistance of counsel, [a defendant] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984)[.]” Gross v. State, 262 Ga. 232, 233 (1) (416 SE2d 284) (1992). The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Gross, supra. Further, Vaughn must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. Snyder v. State, 201 Ga. App. 66, 70 (8) (410 SE2d 173) (1991). A trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous. Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990).

Vaughn first argues that counsel was ineffective for failing to challenge the competency of the child witnesses.

Notwithstanding the provisions of subsection (a) of [OCGA § 24-9-5],... in criminal cases involving child molestation, and in all other criminal cases in which a child was a victim of or a witness to any crime, any such child shall be competent to testify, and his credibility shall be determined as provided in Article 4 of this chapter.

OCGA § 24-9-5 (b). Here, the transcript shows that both girls were asked to demonstrate their understanding of the difference between the truth and a lie and both stated that they would tell the truth. Vaughn has given no basis upon which, had defense counsel challenged their competency, the trial court would have ruled the children incompetent to testify. Defense counsel is not required to make a meritless objection. Sims v. State, 281 Ga. 541, 543 (640 SE2d 260) (2007).

Vaughn also argues that counsel failed to call an expert witness to impeach the testimony of the child witnesses and the State’s expert witnesses. In Falak v. State, 261 Ga. App. 404 (583 SE2d 146) (2003), a similar argument was made because, although counsel consulted with an expert witness, she decided not to call him. Id. at 409. This Court held that this was not ineffective because, among others, “the inconsistencies mentioned were explored at trial during the direct and cross-examinations. . . .” Id. at 409.

In this case, the transcript shows that defense counsel thoroughly cross-examined the experts on the techniques used to interview the children. She also discussed the inconsistencies in her testimony with D. J.

Goldstein v. State, 283 Ga. App. 1 (640 SE2d 599) (2006), relied on by Vaughn, is not persuasive. In Goldstein, the State’s experts’ theories were, according to one expert, “inconsistent with any child she has ever examined or any report she has read in the medical literature.” Id. at 8. That is not the case here. Accordingly, we conclude that Vaughn has failed to show that, but for counsel’s failure to call an expert witness, there is a reasonable probability that the outcome of the trial would have been different.

Vaughn claims that trial counsel was ineffective for failing to do proper follow-up on other cases involving the child victims. This is incorrect. There was only one other instance involving the children, and the allegations were that their mother’s new husband had touched them improperly while bathing them. There is no evidence in the record to show that the allegations were false, and it appears that this was a separate case in Cherokee County that was being investigated at the time of trial. Unlike Gibbs v. State, 287 Ga. App. 694, 697 (652 SE2d 591) (2007), relied on by Vaughn, the accusation here had not been shown to be false at the time of trial.

Vaughn also contends that counsel was ineffective for not objecting to expert witnesses’ testimony as to the truthfulness of the child victims. Specifically, Vaughn objects to testimony about whether the child victims appeared to have been “coached.” “[Testimony by a witness that he did not see any evidence that the child victim had been coached did not constitute bolstering of the child’s credibility and did not impermissibly address the ultimate issue.” (Punctuation omitted.) Towry v. State, 304 Ga. App. 139, 143 (695 SE2d 683) (2010). Because this testimony was not objectionable, counsel was not deficient in failing to raise an objection. See Sims, supra at 543.

Vaughn claims that counsel was ineffective for failing to object to child hearsay. Vaughn does not cite us to any authority in support of this claim nor do we find any. Rather, as Vaughn acknowledges, the trial court held a hearing outside the presence of the jury for both witnesses who testified about statements made to them by the victims. After each witness testified, the trial court found that there was sufficient indicia of reliability to admit the hearsay statements of the victims. It follows that it was not necessary for defense counsel to make an objection in order to require a hearing on the admissibility of the statements. This allegation of ineffectiveness is totally without merit.

5. In his final enumeration, Vaughn argues that the trial court erred in limiting appellate counsel’s questioning of an expert witness at the hearing on his motion for new trial. Vaughn contends that he was prevented from showing what the testimony of the witness would have been had trial counsel called him to testify. Vaughn contends that without this testimony, he is unable to “perfect the record” and prove his contention that trial counsel was ineffective.

Decided February 9, 2011.

Stanley W. Schoolcraft III, for appellant.

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

The transcript of the hearing shows that appellate counsel called this witness and questioned him about the techniques used to question young children and the reliability of a young child’s testimony. The trial court decided to limit the testimony only when appellate counsel began asking specific questions about one of the interviews. Accordingly, there was sufficient evidence before the trial court to show what the expert’s testimony would have been had defense counsel called him as a witness. There was no error.

Judgment affirmed.

Ellington, C. J., concurs. Doyle, J., concurs in the judgment only as to Division 2.

       Each image on the memory stick had the time and day of the month printed on it.


text:
    A10A1736.
    MACEDONIA BAPTIST CHURCH OF ATLANTA v. LIB PROPERTIES, LTD.
    (707 SE2d 380)
   Andrews, Judge.

This appeal arises from the bench trial of a counterclaim for a declaratory judgment brought by LIB Properties, Ltd. against the plaintiff/defendant-in-counterclaim, Macedonia Baptist Church of Atlanta (MBCA), by which LIB sought a declaration that a loan note and a security deed were valid and enforceable against MBCA. MBCA appeals from the trial court’s grant of declaratory judgment in favor of LIB, and for the following reasons, we reverse.

Acting through church members, MBCA, an unincorporated association, brought suit on March 30, 2007, against LIB, Macedonia Baptist Church of Atlanta, Inc. (MBCA, Inc.), and Scottie L. Cousins and Alan Moon (both church members). The suit claimed that, without authority of the church membership, Cousins and Moon incorporated MBCA, Inc. as a nonprofit corporation in January 2007, and that Cousins attempted to name himself as pastor of the church and take control of church property from the existing pastor, Daniel Dickson. The suit also alleged that Cousins signed documents on March 7, 2007, as president of MBCA, Inc. by which the corporation obtained a loan from LIB in the amount of $202,500, and gave LIB a note in that amount and a security deed over vacant real property owned by the church. The suit sought various damages along with injunctive relief preventing LIB from foreclosing against MBCA on the note and security deed or otherwise encumbering church property. LIB answered and filed a counterclaim against MBCA seeking a declaratory judgment validating the note and the security deed.

Without objection from any party, the trial court held a bench trial on LIB’s counterclaim for declaratory judgment, and at the conclusion of the trial entered a judgment in favor of LIB against MBCA declaring the validity of the note and the security deed. The trial court considered the following evidence. The church was originally incorporated as a nonprofit corporation in January 2001 under the name Macedonia Baptist Church of Atlanta, Inc. In July 2001, this original corporation was deeded title to the real property, including vacant land, owned by the previously unincorporated church. The vacant real property deeded to the original corporation in July 2001 was the same vacant real property described in the 2007 security deed given by MBCA, Inc. to LIB. The vacant real property deeded to the original corporation in July 2001 was held subject to a mortgage note and security deed given by the original corporation in October 2001 to Capital City Bank & Trust Company (Capital City). In January 2007, the church pastor, Dickson, asked Cousins, who worked for the church and was also a mortgage broker, to look for a new mortgage loan for the church. In doing so, Dickson authorized Cousins to receive church financial records and to obtain loan offers. In January 2007, Cousins approached LIB for a loan and represented that he was acting on behalf of the church as the church pastor and as the president of the nonprofit corporation, MBCA, Inc., which he incorporated in January 2007. The record shows that, because of failure to pay fees, the original corporation was administratively dissolved by the Secretary of State in 2005. The original corporation remained administratively dissolved in January 2007 when Cousins incorporated MBCA, Inc. as a new nonprofit corporation using the same corporate name as the administratively dissolved corporation. When MBCA, Inc. entered into the loan transaction with LIB on March 7, 2007, and gave the note and security deed to LIB, the original corporation was still administratively dissolved. There is no evidence that the original corporation or MBCA, which filed the present suit as an unincorporated association, authorized or had prior knowledge of the loan transaction with LIB. Shortly after learning about the LIB loan transaction, MBCA filed the present suit on March 30, 2007. Although the original corporation remained administratively dissolved when the present suit was filed, it eventually paid the necessary fees and, prior to the bench trial, was reinstated by the Secretary of State with its original corporate name, Macedonia Baptist Church of Atlanta, Inc. We hereafter refer to the administratively dissolved and reinstated original corporation (incorporated in January 2001) as Original MBCA, Inc.; we refer to the new corporation using the same name (incorporated by Cousins in January 2007) as New MBCA, Inc.; and we refer to the unincorporated association which brought the present suit as MBCA Association.

Accordingly, evidence showed that the loan was made by LIB to New MBCA, Inc. on March 7, 2007, based on loan documents and a $202,500 note given.by New MBCA, Inc. to LIB, all signed by Cousins as the president of New MBCA, Inc. The loan was secured by a March 7, 2007 security deed given to LIB over the same vacant real property deeded in July 2001 to Original MBCA, Inc. The security deed was given to LIB by New MBCA, Inc., and was signed by Cousins as the president of New MBCA, Inc. A title search and a search of corporation records kept by the Secretary of State was performed for LIB in conjunction with the loan closing and security deed. These searches showed that the vacant real property at issue was deeded in July 2001 to Original MBCA, Inc.; that title to the real property was subject to the security deed given by Original MBCA, Inc. in October 2001 to Capital City; that Original MBCA, Inc. remained administratively dissolved at that time; and that New MBCA, Inc. was incorporated by Cousins in January 2007 using the same corporate name as Original MBCA, Inc. There was no evidence of any deed from Original MBCA, Inc. conveying title to the real property to any other entity. When asked whether there was concern that no deed existed in the chain of title conveying title to the real property from the administratively dissolved Original MBCA, Inc. to New MBCA, Inc., the attorney who closed the loan for LIB testified that Cousins told him that the Secretary of State instructed him “to reincorporate because it would be faster than having the old corporation reinstated.” Apparently concluding that Original MBCA, Inc. and New MBCA, Inc. were one and the same corporation and that no deed conveying title to the real property to New MBCA, Inc. was necessary, the closing attorney testified that “the corporation had been reformed using the same name as it had before,” but with different officers and a different address. Relying on this conclusion, LIB’s $202,500 loan to New MBCA, Inc. closed on March 7, 2007, and New MBCA, Inc. gave LIB a $202,500 note and a security deed over the real property. Loan proceeds obtained by New MBCA, Inc. from LIB in the amount of $113,608.61 were used to pay off and release the existing note and security deed given by Original MBCA, Inc. to Capital City, and about $14,000 of the loan proceeds was used to pay overdue property taxes owed on real property owned by Original MBCA, Inc. After suit was filed by MBCA Association, the balance of the loan proceeds paid by LIB to New MBCA, Inc. was placed by agreement of the parties in the registry of the trial court.

Based on this record, LIB contended on two alternative grounds that it was entitled to a declaratory judgment affirming that MBCA Association was bound by the March 2007 loan note and the security deed. LIB contended that MBCA Association was bound because (1) it authorized its agent, Cousins, to enter into the loan transaction on its behalf, or (2) it subsequently ratified the loan transaction made on its behalf by its agent, Cousins, who acted without authority.

To establish the first alternative, LIB was required to show that Cousins was MBCA Association’s agent authorized to enter into a loan transaction on its behalf. Although there was evidence that MBCA Association authorized Cousins to act as its agent to look for and obtain offers for a new mortgage loan, there is no evidence that MBCA Association authorized Cousins to enter into a loan transaction on its behalf. But even if MBCA Association had authorized Cousins to enter into a loan transaction on its behalf, Cousins did not enter into the loan transaction with LIB on behalf of MBCA Association. Rather, Cousins signed the note and the security deed as president of New MBCA, Inc. in a loan transaction between New MBCA, Inc. and LIB. There is no evidence that MBCA Association authorized Cousins to incorporate New MBCA, Inc., name himself as president, and represent that this newly created corporation controlled the church and its property. In fact, the record shows that, even though it was administratively dissolved at the time of the loan transaction, Original MBCA, Inc. continued its corporate existence apart from New MBCA, Inc., and that Original MBCA, Inc. retained title to the real property described in the security deed given by New MBCA, Inc. to LIB. OCGA § 14-3-1421 (c).

To establish the second alternative, LIB was required to show that MBCA Association subsequently ratified the unauthorized acts of its agent, Cousins, taken on its behalf. “Ratification may occur if a business entity accepts the benefits of an act done by another on its behalf, although that person had no actual or apparent authority to act for the business.” (Footnote omitted.) Rains v. Dolphin Mtg. Corp., 241 Ga. App. 611, 614 (525 SE2d 370) (1999). Nevertheless, “a principal cannot ratify a contract which is not in the first instance made on its behalf.” Broyles v. Kirkwood Court Apartments, 97 Ga. App. 384, 386 (103 SE2d 97) (1958); Greene v. Golucke, 202 Ga. 494 (43 SE2d 497) (1947). “An act can not be subject to ratification unless done in behalf of the person adopting it and attempting to ratify it.” Lemmons v. City of Decatur, 215 Ga. 647, 648 (112 SE2d 597) (1960); Witcher v. JSD Properties, LLC, 286 Ga. 717, 720 (690 SE2d 855) (2010). As set forth above, Cousins was not acting on behalf of MBCA Association when he signed the note and security deed in his capacity as president of New MBCA, Inc. Rather, he was acting on behalf of New MBCA, Inc., a corporation he created for his own purposes, and which had no legal title to the property it purported to convey in the security deed given to LIB. Thus, even if MBCA Association accepted the benefits of the loan transaction by accepting the benefit of payment made to Capital City on the existing mortgage loan and payment of overdue property taxes, it was not bound by ratification to the terms of the note or the security deed given by New MBCA, Inc. to LIB.

Decided February 9, 2011.

Carmelia M. Jackson, for appellant.

Morris, Manning & Martin, John H. Williamson, Adamson B. Starr, Nathaniel C. Wheelwright, Daniel B. Greenfield, for appellee.

It follows that the trial court erred by entering a declaratory judgment in favor of LIB declaring that MBCA Association was bound under principles of agency or ratification to the terms of the March 2007 note and security deed.

Judgment reversed.

Ellington, C. J., and Doyle, J., concur.

       LIB also counterclaimed against MBCA on the basis of equitable subrogation and unjust enrichment, and cross-claimed against Cousins and Moon for unjust enrichment, fraud, indemnification, and contribution.

       There is evidence in the record that, during the pendency of the suit, Original MBCA, Inc. was reinstated by the Secretary of State. While administratively dissolved, the nonprofit corporation “may not carry on any business except that necessary to wind up and liquidate its business and affairs under Code Section 14-3-1406.” OCGA § 14-3-1421 (c). But “[w]hen the reinstatement is effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the corporation resumes carrying on its business as if the administrative dissolution had never occurred.” OCGA § 14-3-1422 (d). No issue was presented in this appeal as to whether Original MBCA, Inc. was the real party in interest.


text:
    A10A1790.
    PINE GROVE BUILDERS, INC. et al. v. SUNTRUST BANK.
    (706 SE2d 129)
   Andrews, Judge.

SunTrust Bank held a promissory note, secured by a deed to secure debt over real property, given by Pine Grove Builders, Inc. and guaranteed by Robert C. Belans. After Pine Grove and Belans defaulted on the note, SunTrust exercised power granted in the security deed to conduct a nonjudicial foreclosure sale of the real property, and thereafter obtained an order from the Paulding County Superior Court pursuant to OCGA § 44-14-161 which confirmed the sale as to Pine Grove and Belans. The order found that Pine Grove and Belans were properly served with notice; that the foreclosure sale was lawfully conducted; and that the property sold for at least its fair market value. Pine Grove and Belans appeal from the confirmation order. We affirm confirmation of the sale as to Pine Grove, and reverse confirmation as to Belans.

1. Belans correctly contends that the court erred by confirming the foreclosure sale as to him because he was not served with notice of the confirmation hearing as required by OCGA § 44-14-161 (c). Under OCGA § 44-14-161 (c), “[t]he court shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto. ...” Because of evidence that Belans could not be located and was concealing himself to avoid diligent attempts to serve him personally, the court properly directed that he be served by publication. Belans v. Bank of America, 303 Ga. App. 35, 36-38 (692 SE2d 694) (2010). In Belans, we found under similar circumstances, and respecting the same debtor, that “the trial court did not err in concluding that serving Belans by publication with the notice of confirmation hearing was sufficient.” Id. at 38. But in the present case, the record shows that service by publication was deficient because, although it gave Belans notice of the confirmation application, it is undisputed that it failed to give him notice of the date and time of the confirmation hearing. Because this failed to comply with the statutory requirement in OCGA § 44-14-161 (c) that Belans be given “notice of the hearing,” the court’s confirmation of the sale as to Belans must be reversed. Henry v. Hiwassee Land Co., 246 Ga. 87, 88-89 (269 SE2d 2) (1980).

We find no merit in SunTrust’s contention that, when Belans filed a notice of appeal from the confirmation order in the superior court, this amounted to a general appearance and consent to the court’s jurisdiction and a waiver of any objection to notice of the hearing. SunTrust’s application for confirmation named Belans as a debtor entitled to receive notice of the confirmation hearing pursuant to OCGA § 44-14-161 (c). Belans did not respond to the application; did not attend the confirmation hearing; filed no motion to set aside after entry of the confirmation order; and made no appearance in the superior court until he and Pine Grove filed a notice of appeal. Even if Belans had actual notice or knowledge of the confirmation hearing, in the absence of notice complying with OCGA § 44-14-161 (c), he could elect to make no appearance without waiving the lack of statutory notice. Henry, supra at 88. “Where there has been no legal service or waiver of service, the court’s judgment is null and void.” Id. Without waiving the notice issue or consenting to the court’s jurisdiction, Belans could have moved to set aside the confirmation order for lack of notice and then appealed from a denial of the motion. Id. Belans was also entitled without waiving notice or consenting to jurisdiction to appeal directly to this Court on the notice issue without filing a motion to set aside the order. See Brock Built City Neighborhoods v. Century Fire Protection, 295 Ga. App. 205, 206, n. 1 (671 SE2d 240) (2008). By filing a notice of appeal in the superior court after entry of the confirmation order, Belans did not waive , the notice issue and submit himself retroactively to the jurisdiction of the court. See Bank of America Nat. Trust &c. v. Carr, 292 P2d 587, 591-593 (Cal. App. 2d 1956).

Decided February 9, 2011.

Schreeder, Wheeler & Flint, John A. Christy, Philip R. Green, for appellants.

Husch, Blackwell & Sanders, Camden B. Scearce, Jr., Caroline B. Stefaniak, Timothy L. Mickel, for appellee.

2. Pine Grove claims that the trial court erred by confirming the foreclosure sale because there was a lack of evidence to support a finding that the sale took place. We find no merit to this claim. “The trial court is the trier of fact in a confirmation proceeding, and an appellate court will not disturb its findings if there is any evidence to support them.” Nash v. Compass Bank, 296 Ga. App. 874, 875 (676 SE2d 28) (2009). In producing evidence that the foreclosure sale was lawfully conducted and that the property sold for at least its fair market value, SunTrust produced testimony from an eyewitness to the sale that the sale occurred. Accordingly, confirmation of the foreclosure sale as to Pine Grove is affirmed.

Judgment affirmed in part and reversed in part.

Ellington, C. J., and Doyle, J., concur.

       SunTrust’s confirmation application also named Gregory W. Shoops as a debtor who guaranteed the defaulted note and was entitled to notice of the confirmation hearing. The trial court’s confirmation order found that Shoops was not given notice of the hearing as required under OCGA § 44-14-161 (c), so the order did not confirm the foreclosure sale as to Shoops.


author: Barnes, Presiding Judge.

text:
    A10A1982.
    LaFARGE BUILDING MATERIALS, INC. v. PRATT et al.
    (706 SE2d 131)
   Barnes, Presiding Judge.

LaFarge Building Materials, Inc. brought suit against Lowell Pratt Residential, LLC and its principal, Lowell F. Pratt, seeking payment for building materials supplied for residential construction projects in Gwinnett and Hall Counties. LaFarge claimed that Pratt was individually liable for the debt pursuant to a personal guaranty executed by him as part of a credit application. The trial court denied LaFarge’s motion for summary judgment and granted Pratt’s renewed motion for partial summary judgment, concluding that the guaranty was unenforceable as a matter of law. Because the guaranty failed to sufficiently identify the principal debtor and thus did not comply with the statute of frauds, we affirm.

Summary judgment is appropriate where “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). “A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (Citation and footnote omitted.) Dabbs v. Key Equip. Finance, 303 Ga. App. 570 (694 SE2d 161) (2010).

So viewed, the record reflects that Lowell Pratt Residential, LLC (“LPR”) was in the residential construction business. Lowell F. Pratt was a member and manager of LPR. LaFarge Building Materials, Inc., formerly known as Blue Circle, Inc., was a supplier of residential building materials that would extend credit to qualifying customers. Central to this case is an unsigned “Application For Credit” submitted to Blue Circle on behalf of LPR (the “Application”), the second page of which includes a separate box containing a “Continuing Guaranty” signed by Pratt (the “Guaranty”).

The Application, dated October 17, 2000, is a two-page form document drafted by Blue Circle. At the top of the first page is a blank for the “Name of Company/Individual,” where the name LPR is handwritten, along with LPR’s address. Directly underneath is a section for listing “Owners, Partners and Officers,” where the name “Lowell F. Pratt” is handwritten. The next section is entitled “For Residential Builder Or Individual Building Own Home,” and contains several blanks requesting information about the home or subdivision under construction. “Carriage Station” in Gwinnett County is identified in this section as the subject subdivision.

Nothing on the face of the Application indicates that either Blue Circle or LPR reached agreement concerning the extension of credit. In this regard, in the “Office Use Only” section of the Application, nothing is handwritten in the box under “Approved,” “Credit Limit,” or “Date.” The “Authorized Signature” line of the Application, which was intended for the signature of a representative of the customer seeking credit, is likewise left blank.

The Guaranty is found in a separate box on the second page of the Application. Under the heading “Continuing Guaranty,” the Guaranty provides that the “undersigned” would “unconditionally guaranty the payment when due of all indebtedness now due or which may become due by Applicant to Blue Circle Inc., including all divisions and subsidiaries thereof.” The Guaranty does not incorporate the terms of the Application by reference, and it does not define “Applicant” or otherwise identify the “Applicant” by name. Pratt executed the Guaranty on the line for “Signature of Personal Guarantor” on October 18, 2000. There are no other documents in the record that memorialize the credit relationship between the parties other than the Application and the Guaranty.

During 2006 and 2007, LPR ordered and received building materials from LaFarge for construction projects in Gwinnett and Hall Counties. None of these projects was for a subdivision known as Carriage Station. LPR has not paid for the materials delivered in 2006 and 2007. Consequently, LaFarge filed a verified complaint against LPR and Pratt seeking to collect on the debt.

Pratt filed a motion for partial summary judgment, arguing that the Guaranty was unenforceable on several grounds. The trial court denied the motion. LaFarge subsequently filed a motion for. summary judgment on the issue of the enforceability of the Guaranty, and Pratt renewed his motion for summary judgment on the same issue. The parties agreed that the question of whether the Guaranty was enforceable was a legal one that should be resolved by the trial court. The cross-motions for summary judgment then were heard by a different trial judge sitting by designation.

In a detailed order, the trial court concluded that LaFarge could not recover against Pratt individually because the Guaranty was unenforceable as a matter of law. Among other things, the trial court concluded that the Guaranty did not sufficiently identify the principal debtor and, therefore, violated the statute of frauds. Accordingly, the trial court denied LaFarge’s motion for summary judgment; set aside the prior order denying Pratt’s motion for partial summary judgment; and granted Pratt’s renewed motion for partial summary judgment. This appeal followed.

The statute of frauds requires that “[a] promise to answer for the debt ... of another,” in order to be binding on the promisor, “must be in writing and signed by the party to be charged therewith.” OCGA § 13-5-30 (2). “This requirement has been interpreted to mandate further that a guaranty identify the debt, the principal debtor, the promisor, and the promisee.” John Deere Co. v. Haralson, 278 Ga. 192, 193 (599 SE2d 164) (2004). See Roden Elec. Supply v. Faulkner, 240 Ga. App. 556, 556 (1) (524 SE2d 247) (1999); Sysco Food Svcs. v. Coleman, 227 Ga. App. 460, 461 (489 SE2d 568) (1997). “Even where the intent of the parties is manifestly obvious, where any of these names is omitted from the document, the agreement is not enforceable because it fails to satisfy the statute of frauds.” Dabbs, 303 Ga. App. at 572. See McDonald v. Ferguson Enterprises, 274 Ga. App. 526, 527 (1) (618 SE2d 45) (2005); Coleman, 227 Ga. App. at 461. Furthermore,

[t]he guarantor’s liability may not be extended by implication or interpretation. And parol evidence is not admissible to supply any missing essential elements of a contract required to be in writing by our statute of frauds. Thus, this Court is not authorized to determine the identity of the principal debtor, of the promisee, or of the promisor by inference as this would entail consideration of impermissible parol evidence.

(Citations, punctuation and footnotes omitted.) Dabbs, 303 Ga. App. at 572-573. See OCGA § 10-7-3; McDonald, 274 Ga. App. at 527 (1); Fontaine v. Gordon Contractors Bldg. Supply, 255 Ga. App. 839, 840 (567 SE2d 324) (2002); Roden Elec. Supply, 240 Ga. App. at 557 (1).

LaFarge does not dispute that the Guaranty fails to identify the principal debtor by name, but argues that the identity of the principal debtor is obviously LPR when the Application and the Guaranty are read together. But LaFarge’s argument is predicated on the erroneous assumption that the Application and the Guaranty can be read together in this case. Under the strict rules of construction applicable in this context, “nothing may be inferred merely from the presence of another form on the same paper.” Workman v. Sysco Food Svcs. of Atlanta, 236 Ga. App. 784, 785 (513 SE2d 523) (1999). Hence, the fact that two separate agreements involving different promisors, the Application and the Guaranty, are included in the same two-page document does not lead inexorably to the conclusion that they should be construed together. See id.; Coleman, 227 Ga. App. at 461. Rather, the Application and the Guaranty must be treated as two separate writings, and the rules of construction must be applied with that understanding in mind. See id. Under the applicable rules of construction, a personal guaranty can be read in conjunction with another writing without violating the statute of frauds if (1) the guaranty refers to the other writing or (2) the two can be deemed contemporaneous writings under OCGA § 24-6-3 (a). See Dabbs, 303 Ga. App. at 573-574; Schroeder v. Hunter Douglas, Inc., 172 Ga. App. 897, 898-899 (2) (324 SE2d 746) (1984). See generally Harris v. Baker, 287 Ga. App. 814, 816 (652 SE2d 867) (2007). Each of these possibilities will be discussed in turn.

1. If a personal guaranty “referís] to any other writing which can be identified completely by this reference, without the aid of parol evidence,” the guaranty can be construed together with the other writing to satisfy the statute of frauds. (Citations and punctuation omitted.) Schroeder, 172 Ga. App. at 899 (2). See Roach v. C. L. Wigington Enterprises, 246 Ga. App. 36, 37 (539 SE2d 543) (2000). Applying this rule, we have held that if a guaranty does not incorporate a credit application by reference or use the same material terms, the two cannot be read together to determine the identity of the principal debtor, even if the guaranty is part of the same document as the credit application. See Fontaine, 255 Ga. App. at 840-841; Workman, 236 Ga. App. at 785; Coleman, 227 Ga. App. at 461.

Here, the Guaranty does not incorporate the terms of the Application by reference. Compare Cox v. U. S. Markets, Inc., 278 Ga. App. 287, 289 (1) (628 SE2d 701) (2006) (noting that guaranty “specifically incorporated the terms of the promissory note and amortization schedule”); Roach, 246 Ga. App. at 37 (enforcing guaranty that referred to terms of promissory note “set forth above”); Charles S. Martin Distrib. Co. v. Bernhardt Furniture Co., 213 Ga. App. 481, 482 (1) (445 SE2d 297) (1994) (noting that guaranty “cites the attached addendum”). Moreover, while the Guaranty refers to the principal debtor as the “Applicant,” that term is not defined in the Application, nor does the Application identify any entity as the “Applicant.” See McDonald, 274 Ga. App. at 527 (1) (guaranty referring to principal debtor as the “Applicant” was unenforceable where credit application did not identify any entity as the “Applicant”); Roden Elec. Supply, 240 Ga. App. at 557 (1) (guaranty referring to principal debtor as “the above business” was unenforceable where credit agreement did not identify an entity as “the business”). Additionally, while the Guaranty states that it is a “Continuing Guaranty” that covers “all indebtedness now due or which may become due,” the Application refers to an extension of credit for materials related to one specified subdivision, Carriage Station. Under these circumstances, the Guaranty cannot be said to have referred to the Application with sufficient clarity to justify relying upon the Application to satisfy the statute of frauds. See Turner v. Lorillard Co., 100 Ga. 645, 650-651 (28 SE 383) (1897); Workman, 236 Ga. App. at 785; Coleman, 227 Ga. App. at 461.

In reaching this result, we note that the present case is materially similar to Fontaine, 255 Ga. App. at 840-841. That case involved a guaranty provision contained within a credit application, and the credit application identified the “Name of Company or Business” as McIntyre Development, Inc. Id. at 839. The guaranty provision referred to the principal debtor generically as the “customer” rather than by specific name and did not incorporate the terms of the credit application by reference, but the creditor argued that the identity of the principal debtor could be identified as McIntyre Development based upon the credit application. Id. at 840. We disagreed, concluding that there was “no clear identification of the principal debtor” in the guaranty and that the credit application could not be construed together with the guaranty to cure the deficiency. Id. Similarly, in the present case, the Guaranty refers generically to the principal debtor as the “Applicant” and does not incorporate the Application by reference, while the Application identifies LPR as the “Name of Company/Individual.” Accordingly, our decision in Fontaine controls the outcome in this case and supports the trial court’s ruling.

2. Under OCGA § 24-6-3 (a), “[a]ll contemporaneous writings shall be admissible to explain each other.” Interpreting this statutory provision, the Supreme Court of Georgia has held “that as long as all the necessary terms are contained in signed contemporaneous writings, the statutory requirements and purpose of the [sjtatute of [flrauds have been met, whether or not the writings are cross-referenced.” Baker v. Jellibeans, Inc., 252 Ga. 458, 460 (1) (314 SE2d 874) (1984). See Dabbs, 303 Ga. App. at 573. If the writings relied upon are not signed, the contemporaneous writing rule enunciated by the Supreme Court does not apply. See Baker, 252 Ga. at 460 (1), discussing North & Co. v. Mendel & Brother, 73 Ga. 400, 403-404 (1884). Moreover, the evidence must demonstrate that the writings were “executed at the same time and in the course of the same transaction... in order to allow the writings to be construed together.” (Citations, punctuation and footnotes omitted.) Dabbs, 303 Ga. App. at 574. See Duke v. KHD Deutz of America Corp., 221 Ga. App. 452, 453 (471 SE2d 537) (1996). And “where the statute of frauds is applicable, a party may not rely on parol evidence to establish that the [writings] were executed in the course of the same transaction.” Dabbs, 303 Ga. App. at 575. See Turner, 100 Ga. at 650-651 (2).

In this case, the Application is unsigned, rendering the contemporaneous writing rule inapplicable. See Baker, 252 Ga. at 460 (1); North & Co., 73 Ga. at 403-404. What is more, because there is nothing in the Application reflecting that the parties formed a binding contract regarding the extension of credit, LaFarge would have to introduce parol evidence to establish that the Application was entered into at the same time and in the course of the same transaction as the Guaranty, and such evidence is not permitted in this context. See Dabbs, 303 Ga. App. at 575. It follows that the requirements for construing the Application and the Guaranty as contemporaneous writings under OCGA § 24-6-3 (a) have not been satisfied, and LaFarge could not rely upon the Application to explain the term “Applicant” found in the Guaranty. See Baker, 252 Ga. at 460 (1); North & Co., 73 Ga. at 403-404; Dabbs, 303 Ga. App. at 574-575.

Decided February 9, 2011.

Dietrich, Evans, Scholz & Williams, John A. Williams, Scott A. Schweber, for appellant.

Webb, Tanner, Powell, Mertz & Wilson, Anthony O. L. Powell, Melody A. Glouton, for appellees.

For these combined reasons, as a matter of law, the Guaranty was unenforceable under the statute of frauds for failure to identify the principal debtor. The trial court committed no error in denying LaFarge’s motion for summary judgment and in granting Pratt’s renewed motion for partial summary judgment.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

       LPR was formed in 2000, and the first subdivision that it developed was Carriage Station in Gwinnett County.

       LaFarge relies heavily upon Capital Color Printing v. Ahern, 291 Ga. App. 101, 104-107 (1) (661 SE2d 578) (2008). In that case, the two guaranty provisions included in the credit application expressly referred to the terms contained “on the reverse side of this agreement” and “on the front of this credit application.” Id. at 103. Therefore, the guaranties specifically referenced the other writing, i.e., the credit application, allowing for the guaranties and credit application to be construed together without violating the statute of frauds.