text:
    A12A0504.
    GODDARD v. THE STATE.
    (729 SE2d 397)
   Miller, Judge.

This is the second appearance of the case before this Court. In the first appearance, Goddard v. State, 310 Ga. App. 2, 5 (2) (712 SE2d 528) (2011) (“Goddard 7”), we vacated the trial court’s order as it concerned Allen Goddard’s plea in bar on constitutional speedy trial grounds and remanded the case for the entry of a proper order pursuant to Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). Following remand, the trial court entered another order denying Goddard’s plea in bar on constitutional speedy trial grounds. Goddard now appeals the order entered upon remand. For the reasons set forth below, we vacate the trial court’s order and remand this case for a second time for the trial court’s reconsideration.

“We review a denial of a motion to dismiss the indictment on speedy trial grounds for abuse of discretion.” (Citation and punctuation omitted.) Stewart v. State, 310 Ga. App. 551 (713 SE2d 708) (2011).

In Goddard I, we described the relevant factual background as follows:

Goddard was arrested [on December 17,1992] for snatching a cash box from an employee of a tanning business, and [was] subsequently indicted for robbery [OCGA § 16-8-40 (a) (3)] in Newton County on February 19, 1993. On April 12, 1993, the State received a letter from Goddard to the “Newton County Court” stating that he was incarcerated in Fulton County under an alias and that he thought it would be best to “let Newton County know where I’m at before my court date comes up.” On December 28, 1993, Goddard was charged by accusation with reckless driving [OCGA § 40-6-390 (a)] and fleeing and attempting to elude [OCGA § 40-6-395 (a)] in connection with the robbery. Less than a month later, on January 20, 1994, Goddard filed a demand for speedy trial pursuant to OCGA § 17-7-170 seeking an acquittal on all three charges filed in Newton County.
Goddard was released from jail in Fulton County on an unrelated offense on February 1, 1994. On February 11, 1994, the clerk of court mailed Goddard’s notice of trial on the Newton County charges to the wrong address, and when his case was called for trial on February 28, 1994, Goddard failed to appear. The trial court issued a bench warrant for his arrest, but the case was subsequently dead-docketed. [] Goddard claims, and the State does not dispute, that from March 14, 1994[,] until he was finally arrested and transported to Newton County on March 25, 2010, Goddard was in and out of jail in at least two other counties.
Goddard filed a plea in bar on both constitutional and statutory speedy trial grounds on May 19, 2010. The trial court summarily denied Goddard’s plea in bar on both grounds [on July 14, 2010].

(Punctuation omitted.) Goddard I, supra, 310 Ga. App. at 2-3. In Goddard 1, supra, 310 Ga. App. at 4 (1), this Court affirmed the trial court’s denial of Goddard’s plea in bar on statutory speedy trial grounds with regard to the robbery charge, but reversed with regard to the charges of fleeing and attempting to elude and reckless driving. However, this Court vacated the trial court’s order as it concerned Goddard’s plea in bar on constitutional speedy trial grounds and remanded the case for proper consideration of the Barker factors. Id. at 5 (2). Following remand, specifically on September 7,2011, the trial court denied Goddard’s plea in bar on constitutional speedy trial grounds. Goddard has filed the instant appeal to challenge the trial court’s decision.

An analysis of a constitutional speedy trial claim has two stages. The first stage requires a determination of whether the interval from the defendant’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered “presumptively prejudicial.” Where the delay is only ordinary, rather than presumptively prejudicial, the defendant’s speedy trial claim fails at the threshold. A delay that is deemed to be presumptively prejudicial, however, triggers the second stage of the analysis. At this second stage, a court must determine whether the defendant has been deprived of his right to a speedy trial by analyzing a four-part balancing test that considers the conduct of both the State and the defendant (i.e., the Barker[ ] factors): (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the defendant was prejudiced by the delay. Standing alone, none of these factors are a necessary, or sufficient condition to a finding of deprivation of the right to a speedy trial, but rather should be considered as part of a balancing test.

(Citations and punctuation omitted.) Stewart, supra, 310 Ga. App. at 552-553.

1. The Threshold Inquiry Presumptive Prejudice. A finding of “presumptive prejudice” is a threshold inquiry that triggers a speedy trial analysis under Barker. See State v. Porter, 288 Ga. 524, 525 (2) (a) (705 SE2d 636) (2011). That is, “[i]f such a presumption is not warranted, the analysis need go no farther because the accused’s speedy trial claim fails [.]” (Citation and punctuation omitted.) Higgenbottom v. State, 290 Ga. 198, 200 (1) (719 SE2d 482) (2011). Here, the trial court found that the pretrial “delay was not so lengthy as to be considered presumptively prejudicial.” The trial court’s finding is erroneous.

Significantly, the trial court erred in calculating the delay in this case as the time elapsed from the date the crime allegedly occurred (December 16, 1992) to the date the case was called for trial (February 28, 1994). “Where a trial has not occurred, the delay should be calculated from the date of arrest or other formal accusation to the date on which a defendant’s speedy trial motion was granted or denied..., rather than any initial date set for the trial.” (Citation and punctuation omitted.) Porter, supra, 288 Ga. at 526 (2) (b); see also Stewart, supra, 310 Ga. App. at 553 (1) (“Speedy trial rights attach at the time of arrest or formal indictment, whichever is earlier.”) (citation and punctuation omitted). Thus, the relevant interval of delay here was the time that elapsed between Goddard’s December 16, 1992, arrest and the trial court’s September 7, 2011, denial of Goddard’s plea in bar on constitutional speedy trial grounds. Cf. Moore v. State, 314 Ga. App. 219, 220 (723 SE2d 508) (2012) (calculating pretrial delay through date that trial court entered new order denying motion to dismiss on speedy trial grounds instead of date on which the trial court entered original order denying the same, where this Court had vacated the original order and remanded the case for the entry of an order expressly applying the analysis contained in Barker). Based on these relevant dates, the pretrial delay in this case has spanned nearly 19 years.

We further note that the presumptive prejudice “inquiry is necessarily dependent upon the peculiar circumstances of the case[; for]... example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” (Punctuation and footnote omitted.) Barker, supra, 407 U. S. at 531 (IV). Here, in light of the trial court’s own statements that Goddard’s robbery case appeared to be “an extremely simple” one, with “extremely simple evidence,” the pretrial delay of nearly 19 years far exceeded the point at which the delay became presumptively prejudicial. See Porter, supra, 288 Ga. at 526-527 (2) (b) (“[0]ne year ... generally marks the point at which delay becomes presumptively prejudicial.”) (citations and punctuation omitted). Clearly, a delay of nearly 19 years triggered the second-stage Barker analysis of Goddard’s constitutional speedy trial claim.

2. Barker Analysis.

(a) Length of the delay. “A delay is considered uncommonly long to the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” (Citation and punctuation omitted.) Ward v. State, 311 Ga. App. 425, 428 (2) (715 SE2d 818) (2011). “This factor is part of the mix of relevant facts, and its importance increases with the length of delay.” (Citation and punctuation omitted.) Higgins v. State, 308 Ga. App. 257, 260 (2) (a) (707 SE2d 523) (2011). Here, the trial court found that the pretrial delay after February 28, 1994, as attributed to the State, was not uncommonly long. The trial court’s finding is flawed.

As indicated above, the trial court neglected to consider the entire relevant pretrial delay in this case — that is, the nearly 19 years that elapsed between Goddard’s December 16, 1992, arrest and the trial court’s September 7, 2011, denial of Goddard’s plea in bar on constitutional speedy trial grounds. Moreover, in attributing the delay to the State, the trial court conflated its consideration of the length of the delay factor with its consideration of the reason for the delay factor under Barker. On remand, the trial court must reconsider the length of delay as a separate factor under Barker, and on balance, determine whether the delay of nearly 19 years was uncommonly long for a robbery charge. See, e.g., Ward, supra, 311 Ga. App. at 428 (2) (concluding that 34-month delay in aggravated assault, robbery, and kidnapping case was uncommonly long, and thus weighed against the State); Higgins, supra, 308 Ga. App. at 260 (2) (a) (concluding that 24-month delay in aggravated assault case was uncommonly long and weighed against State).

(b) Reason for the delay. “The second factor in the Barker[ ] analysis requires the court to examine both the reason for the delay and whether this is attributable to the defendant or the [S]tate.” (Citation and punctuation omitted.) Hayes v. State, 298 Ga. App. 338, 341 (2) (b) (680 SE2d 182) (2009). Here, the trial court found that “[o]n balance, defendant is to blame for the delay in bringing the case to trial after February 28, 1994.” The trial court’s findings of fact in support of its conclusion, however, are incomplete.

First, the trial court failed to consider the approximately 14-month delay between Goddard’s arrest on December 16, 1992, and his call to trial on February 28, 1994. In its appellate brief in Goddard I, the State conceded that it was responsible for this initial delay in bringing Goddard to trial. The State cited no specific reason for this delay, instead asserting only that 14 months was “a very reasonable and common period of time.” However, “when there is no apparent reason for a delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial.” (Footnote omitted.) Johnson v. State, 313 Ga. App. 895, 901 (2) (b) (723 SE2d 100) (2012). “Generally, delay attributed to the [S]tate’s negligence, rather than a deliberate act, is weighed as a ‘relatively benign’ factor against the [S]tate.” (Footnote omitted.) Davis v. State, 308 Ga. App. 843, 845 (2) (b) (709 SE2d 343) (2011).

The next interval of delay was the approximately sixteen and one-half year delay between Goddard’s call to trial on February 28, 1994, and the trial court’s original July 14, 2010, denial of Goddard’s plea in bar on constitutional speedy trial grounds. The trial court issued a bench warrant for Goddard’s arrest when he failed to appear for trial on February 28, 1994. See Goddard I, supra, 310 Ga. App. at 3. The record reflects, however, that Goddard failed to appear on February 28, 1994, because the Newton County clerk of court mailed the notice of trial to the wrong address. See id. at 3, 4 (1). Moreover, the State conceded that it was negligent in failing to properly enter the February 28, 1994, bench warrant into the Georgia Crime Information Center (“GCIC”) database. Thus, although Goddard was frequently arrested and incarcerated from March 13, 1994, through February 2010, for other, unrelated charges in different counties, it was not until March 25, 2010, that Goddard was finally arrested on the outstanding bench warrant for the Newton County charges. See id.

The trial court concluded that although the State’s negligence played a role in the delay, such was “relatively benign,” and that on balance, “any delay after the case was called to trial [was] due more to the defendant’s inaction [than] the [S]tate’s action.” As an initial matter, we note that “[a] defendant has no duty to bring himself to trial[.]” (Footnote omitted.) Barker, supra, 407 U. S. at 527 (III). That being said, however, we agree that Goddard played a role in the delay following his call to trial on February 28, 1994. Notably, the record reflects that beyond Goddard’s letter to the State in April 1993 regarding his incarceration in Fulton County (on other charges) and use of an alias, Goddard otherwise failed to make any further contact with the State, the trial court, his attorney, or his bondsman concerning his whereabouts or otherwise inquire about his pending charges in Newton County. Cf. Rafi v. State, 289 Ga. 716, 718 (2) (715 SE2d 113) (2011) (weighing reason for delay factor against defendant where neither he nor his attorney made themselves aware of the actual status of the case between 1998 and 2005, and defendant failed to keep his address up to date with the trial court, such that the trial court was unable to send the notice of a 2001 arraignment to defendant’s home address); Mayfield v. State, 264 Ga. App. 551, 556-557 (1) (593 SE2d 851) (2003) (concluding that pretrial delay was largely due to defendant, where he failed to contact the trial court in any way, even though he had an outstanding arrest warrant against him for failing to appear for trial). Moreover, some of the delay following Goddard’s March 25, 2010, arrest could also be attributed to Goddard’s change in public defender and subsequent request for a continuance from the May 2010 trial calendar — a circumstance that the trial court failed to consider in its analysis of the reason for delay factor. Cf. Hudson v. State, 277 Ga. 581, 583 (2) (b) (591 SE2d 807) (2004) (“As to the reason for the delay, the initial delay . . . must be weighed against [defendant] because it was due to change in counsel and continuance motions filed on [defendant’s] behalf.”) (punctuation omitted).

Notwithstanding Goddard’s role in contributing to the delay following his call to trial on February 28, 1994, the trial court must reassess whether such fully counteracted the State’s negligence as a negative factor. See State v. White, 282 Ga. 859, 862 (2) (b) (655 SE2d 575) (2008). Notably, while there is no evidence that the State deliberately attempted to hamper the defense after February 28, 1994, the trial court nevertheless erred in finding that the State’s negligence was “relatively benign.” Cf. Hayes, supra, 298 Ga. App. at 345 (2) (b). The trial court’s finding failed to take into account the approximately sixteen and one-half year delay that was occasioned, at least in part, by the State’s negligence. “Even benign negligence will begin to weigh more heavily against the State, the longer the delay caused by the same.” Id.; see, e.g., State v. Brown, 315 Ga. App. 544, 550 (2) (b) (726 SE2d 500) (2012) (“[T]he delay [of at least seven and one-half years] occasioned by negligence in this case is extraordinary, and as the United States Supreme Court [has] noted in Doggett [v. United States, 505 U. S. 647, 657 (III) (B) (112 SC 2686, 120 LE2d 520) (1992)], ‘our toleration of such negligence varies inversely with its protractedness.’ ”) (punctuation omitted); Hester v. State, 268 Ga. App. 94, 97 (2) (601 SE2d 456) (2004) (“While a five-year delay may be unintentional, it is certainly not benign.”).

Finally, the trial court failed to consider the approximately 14-month delay between its original July 14, 2010, denial of Goddard’s plea in bar on constitutional speedy trial grounds and its second denial of the same on September 7, 2011. Notably, in determining whether the government or the defendant is more to blame for the pretrial delay, “the government includes all state actors, even trial and appellate court judges.” (Citation and punctuation omitted.) Stewart, supra, 310 Ga. App. at 555 (2) (b), n. 2. Here, the trial court’s order of July 14, 2010, failed to make any findings with regard to the Barker factors. Goddard I, supra, 310 Ga. App. at 5 (2). Accordingly, this Court was required to vacate the trial court’s original order as it concerned the denial of Goddard’s plea in bar on constitutional speedy trial grounds and remand the case for the entry of a proper order pursuant to Barker. Id. Thus, the government is responsible for this more recent delay interval of approximately 14 months.

Given the trial court’s failure to give due consideration to all relevant periods of pretrial delay and the reasons therefor, “we are constrained to remand [this case again] so that the court can reconsider the circumstances giving rise to the delay and reassess the causes for the delay with regard to the principles outlined supra before reweighing this factor.” (Footnote omitted.) Johnson, supra, 313 Ga. App. at 902 (2) (b).

(c) Defendant’s assertion of the right. “[T]he relevant question for purposes of the third Barker[ ] factor is whether the accused has asserted the right to a speedy trial in due course.” (Citation and punctuation omitted.) Hayes, supra, 298 Ga. App. at 346 (2) (c). Goddard failed to file a timely statutory speedy trial demand with regard to his robbery charge, see Goddard I, supra, 310 Ga. App. at 4 (1), and he did not affirmatively assert his constitutional right to a speedy trial until May 20, 2010, shortly after he was arrested on the outstanding bench warrant for the Newton County charges. The trial court found that Goddard did not timely assert his constitutional right to a speedy trial. Generally, such a delay in asserting the right would authorize the trial court to weigh this Barker factor against a defendant. See, e.g., Bell v. State, 287 Ga. App. 300, 302 (651 SE2d 218) (2007) (holding that trial court was authorized to weigh delay against defendant where he failed to file a timely statutory speedy trial demand, and he did not affirmatively assert his constitutional right to a speedy trial until ten months after his indictment and thirteen months after his arrest). Here, however, it appears that the trial court failed to consider the fact that Goddard’s case was dead-docketed from March 7, 2000, through June 10, 2010 — a period of approximately ten years. And significantly, “the time the case was dead-docketed should not be considered in determining whether [defendant] timely asserted [his] right to a speedy trial.” (Citations and punctuation omitted.) Hayes,supra, 298 Ga. App. at 346 (2) (c), n. 22. On remand, the trial court must reevaluate this Barker factor without counting against Goddard the period of time during which his case sat on the dead-docket.

(d) Prejudice to the defendant. This final Harder factor “is designed to protect three interests, the last being the most important: (a) to prevent oppressive pretrial incarceration; (b) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defense will be impaired.” (Citation and punctuation omitted.) White, supra, 282 Ga. at 862 (2) (d).

Here, Goddard makes no claim of oppressive pretrial incarceration or anxiety and concern, and instead focuses on the alleged impairment to his defense. Goddard specifically argues that both he and the arresting officer lack memory of the incident at issue, and that there is “no way for him to know what mitigating or exculpatory information was available in 1994 [when his case was called to trial], but is not available at this time.” The trial court found that Goddard’s claims about lack of memory were insufficient to make a showing of any actual prejudice as a result of the pretrial delay. As Goddard correctly points out, however, the trial court failed to further consider the presumed prejudice in this case, which, as discussed in Division 1 above, arose from the pretrial delay of nearly 19 years. See Porter, supra, 288 Ga. at 531 (2) (c) (4) (“[O]nce the threshold presumptive prejudice is satisfied, a presumption of prejudice always exists, although it increases in weight over time.”) (citations and punctuation omitted). Notably, “the presumption of prejudice addressed in Barker strengthens with the passage of time, and as the delay increases, less specific harm need be demonstrated to conclude that the delay is prejudicial.” (Citations and punctuation omitted.) State v. Redding, 274 Ga. 831, 834 (561 SE2d 79) (2002). And an “extraordinary delay in bringing [a defendant] to trial raise [s] a presumption that [his] defense ha[s] been hindered, and relieve[s] [him] of the requirement of showing specific instances of prejudice.” (Citation and punctuation omitted.) White, supra, 282 Ga. at 863 (2) (a), (d) (concluding that co-defendants were relieved from showing specific instances of prejudice where their pretrial delays were over two years and five and one-half years, respectively); see also Hester, supra, 268 Ga. App. at 99 (4) (“[T]he extraordinary five-year length of the delay raised the presumption of actual prejudice and thus did not require [the defendant] to make a specific showing of prejudice.”) (punctuation omitted). Accordingly, the trial court needs to reevaluate this Barker factor in light of the pretrial delay of nearly 19 years in this case.

(e) Balancing the Barker factors. Here, the trial court made factual findings that were unsupported by the record and misapplied the Barker factors; therefore, the deference we owe to the trial court’s ultimate ruling is extinguished. See Johnson, supra, 313 Ga. App. at 906 (2) (e).

[G]iven these errors, we cannot conclude that the trial court would have still been required to weigh those factors in the' manner in which it did, so as to determine that [Goddard’s] right to a speedy trial had not been violated. Indeed, the trial court could not properly balance the Barker factors, and the trial court’s order must be vacated and the case remanded for the trial court to exercise its discretion again using properly supported factual findings and the correct legal analysis, reflected in an adequate written order.

Decided May 15, 2012.

Anthony S. Carter, for appellant.

Layla H. Zon, District Attorney, Melanie M. Bell, Assistant District Attorney, for appellee.

Accordingly, for all the forgoing reasons, we vacate the trial court’s judgment and remand the case for proceedings consistent with this opinion.

(Punctuation and footnotes omitted.) Id.

Judgment vacated and case remanded with direction.

Mikell, P. J., and Blackwell, J., concur.

       We note that
      [d]ead docketing is a procedural device by which the prosecution is postponed indefinitely but may be reinstated any time at the pleasure of the court. Placing a case upon the dead docket certainly constitutes neither a dismissal nor a termination of the prosecution in the accused’s favor. Acase is still pending which can be called for trial at the judge’s pleasure.
      (Citation and punctuation omitted.) Barrett v. Sanders, 262 Ga. App. 63, 67 (2) (584 SE2d 676) (2003).

       The trial court also issued an order to produce Goddard from Department of Corrections’ custody on February 28, 1994. However, Goddard was no longer in custody at the time the pickup order was issued.

       During the interim, specifically March 9, 2000, the State placed Goddard’s case on the dead-docket because of its inability to locate Goddard. The case was removed from the dead-docket on June 10, 2010.

       Although the trial court also cited Goddard’s use of an alias as a reason for the pretrial delay, the evidence presented at the speedy trial hearing does not support the trial court’s finding in this regard. Notably, the State testified that it did not know whether Goddard’s use of aliases in any way affected the State’s failure to determine that Goddard was in custody subsequent to the issuance of the bench warrant. Cf. Davis, supra, 308 Ga. App. at 845 (2) (b) (holding that evidence presented at speedy trial hearing did not support trial court’s findings that the delay in prosecuting defendant’s case was caused either by his bench warrant status or his use of an alias in another case, where none of the prosecutors testified that these factors hindered their ability to prosecute the case).

       But see Lett v. State, 164 Ga. App. 584, 584, 585-586 (2) (298 SE2d 541) (1982) (concluding that defendant in no way caused the delay where (i) defendant was unaware of an outstanding indictment due to his incarceration at the time it was returned; (ii) defendant did nothing to hinder any further prosecution or conceal himself; (iii) the State attempted to locate defendant only once, five years after the indictment; and (iv) State’s explanation of being unable to locate defendant until six years after the indictment was simply insufficient in view of so scant an effort after the return of the indictment).


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A12A0325.
    PATEL v. COLUMBIA NATIONAL INSURANCE COMPANY.
    (729 SE2d 35)
   McFadden, Judge.

The trial court granted summary judgment to Columbia National Insurance Company on B. J. Patel’s claim that Columbia had breached its obligation under an insurance policy to compensate her for damages connected with the burglary of her business. Patel appeals, arguing that the court improperly treated certain dispositive facts as undisputed after Patel failed to file a timely response to Columbia’s requests to admit those facts. Because Patel’s untimely response constituted an admission of the facts and she did not seek to withdraw that admission in accordance with OCGA § 9-11-36 (b), the court was authorized to find that the facts were undisputed. Accordingly, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Hutto v. CACV of Colorado, 308 Ga. App. 469 (707 SE2d 872) (2011). We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant. Id. In this case, however, the appellant Patel does not argue that the trial court erred in his application of the summary judgment standard. Instead Patel challenges the trial court’s determination that the facts of record include certain admissions arising out of Patel’s failure to timely respond to Columbia’s requests to admit. We therefore confine our analysis to that issue.

The evidence in this case showed that Columbia issued to Patel an insurance policy covering Patel’s business. Pertinently, the policy excluded from coverage loss or damage caused by theft “[i]f the building where loss or damage occurred] ha[d] been vacant for more than 60 consecutive days before that loss or damage occur [red].” The policy also required Patel to give Columbia “prompt notice” of any loss or damage.

On or about September 16,2007, during the coverage period, the business was burglarized. Patel made a claim to Columbia for coverage of the damages sustained in the burglary, and when Columbia did not pay the claim, Patel brought this action.

Columbia served upon Patel requests for admissions, which included the following:

1. Admit that your property located at [the business address] in Columbus, Georgia was “vacant” within the meaning of the definition contained in your Businessowners Liability insurance policy with Columbia National Insurance Company, [policy number], at the time of all incidents giving rise to your claims for insurance coverage as indicated in your Complaint and the above-captioned lawsuit.
3. Admit that you failed to provide any notice of any incident or “occurrence” within the meaning of your policy to Columbia National Insurance Company or to any other party named in the above-captioned lawsuit prior to July 29, 2008.

(Emphasis in original.) According to the certificate of service, Columbia placed the requests for admissions in the United States mail on May 25,2010. In an affidavit, Patel stated that she did not receive the requests until June 10, 2010. She responded to the requests on July 6, 2010, denying the two requests cited above.

In support of its motion for summary judgment, Columbia argued that Patel did not timely respond to its requests for admissions, and thus the facts were deemed admitted. Consequently, Columbia argued, it was undisputed that the property was vacant at the time of the burglary and that Patel did not give notice of the loss and damage from the burglary until more than ten months later. Thus, Columbia concluded, as a matter of law it had no obligation under the policy to cover Patel’s loss and damage from the burglary.

Patel opposed the motion for summary judgment only on the ground that the facts concerning the vacancy of the property and the timing of her notice should have been treated as disputed because questions existed regarding the timeliness of her response to the requests for admissions. Her sole claim of error on appeal is that the trial court granted summary judgment to Columbia “upon facts deemed admitted pursuant to [Columbia’s] Request for Admissions without a proper consideration of [Patel’s] contention that her responses thereto were timely,” and she offers no argument or citation of authority opposing summary judgment for any other reason.

We find no merit in Patel’s claim of error. OCGA § 9-11-36 of Georgia’s Civil Practice Act governs requests for admissions. It allows a party to “serve upon any other party a written request for the admission ... of the truth of any matters within the scope of subsection (b) of Code Section 9-11-26 [general provisions governing discovery] which are set forth in the request and that relate to statements or opinions of fact or of the application of law to fact....” OCGA§ 9-11-36 (a) (1).

The matter is admitted unless, within 30 days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney.

OCGA § 9-11-36 (a) (2). “Any matter admitted under this Code section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission.” OCGA § 9-11-36 (b).

Because Columbia served its requests for admissions by mail, three days must be added to the prescribed thirty-day response period. Bartosz v. Chapparal Enterprises, 271 Ga. App. 246, 248 (1) (609 SE2d 185) (2005) (citing OCGA § 9-11-6 (e)). Because Patel served her response more than 33 days after May 25, pursuant to OCGA § 9-11-36 (a) (2) she is deemed to have admitted the requested matters at issue in this appeal — that her property was vacant and that she did not give notice until July 29, 2008. See Bartosz, 271 Ga. App. at 248 (1). Although Patel testified in her affidavit that she did not receive the requests until June 10, 2010, she did not move to withdraw or amend the admissions that arose by operation of OCGA § 9-11-36, and the trial court did not permit any withdrawal or amendment. Compare 131 Ralph McGill Blvd., LLC v. First Intercontinental Bank, 305 Ga. App. 493, 494-495 (1) (699 SE2d 823) (2010). Consequently, the matters addressed in the requests were conclusively established by Patel’s admissions pursuant to OCGA § 9-11-36 (b), see Bartosz, 271 Ga. App. at 248 (1), and the trial court did not err in finding these matters to be undisputed.

Decided May 16, 2012.

Kevin P. Bradley, for appellant.

Hicks, Casey & Foster, Zachary M. Matthews, Andrea A. Guariglia, for appellee.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


author: MlKELL, Presiding Judge.

text:
    A12A0467.
    MEDRANO v. THE STATE.
    (729 SE2d 37)
   MlKELL, Presiding Judge.

Following a jury trial, Manual Medrano was convicted of one count of aggravated sexual battery and one count of child molestation against his girlfriend’s daughter, D. R. Medrano appeals the denial of his amended motion for new trial, challenging the sufficiency of the evidence and arguing that he received ineffective assistance of counsel. Finding no error, we affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.”

So viewed, the evidence shows that D. R., who was 16 years old at the time of trial, testified that when she was 11 years old, Medrano would hug her, fondle her breasts, and tell her that he loved her “like an adult.” Later that year, Medrano then took D. R. and her sister to a vacant trailer where he had previously lived. Leaving her sister in the car, Medrano took D. R. into the trailer and had sexual intercourse with her for the first time. Afterward, Medrano threatened “to do something to my sister and my mom would get sick” if D. R. told anyone what he had done to her.

The first incident was isolated because D. R.’s mother was home with the girls most of the time. But when the mother found a temporary job that took her away from home from time to time, Medrano took advantage of these occasions to have sexual intercourse with D. R. D. R. “lost count” of how many times Medrano had sex with her “because it was a lot.”

D. R. moved out of town with her family for about a year, but then returned to the same house. Medrano then began abusing D. R. again. Medrano explained to D. R. that she had to continue having sex with him because she was his girlfriend and that because he paid the household expenses, he had “whole authority” over the house. Medrano then bought D. R. a cell phone so she could send him pictures of her nude body and so he could send her messages without detection. Medrano also wrote notes to D. R., including one that referenced a pair of her yellow underwear and said “I love you more than what you think ... I want to make a beautiful baby with you.”

At some point, D. R. took matters into her own hands. She borrowed a tape recorder and secretly recorded several conversations she had that day with Medrano. In one conversation, after D. R. states that she “will not sleep with” Medrano anymore, he threatens her with “consequences” and says that he will reveal the nude photographs of her.

1. Medrano first contends that the evidence was insufficient to support his convictions because there was conflicting evidence presented to the jury indicating that D. R. lied about the molestation because she wanted to prevent her mother from marrying Medrano. However, it is the function of the jury, not this Court, to judge the credibility of witnesses, resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. In so doing, “[a] jury is authorized to believe or disbelieve all or any part of the testimony of witnesses.” Ultimately, “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s verdict will be upheld.” Moreover, the victim’s testimony alone is generally sufficient to establish the elements of child molestation. Accordingly, Medrano’s challenge to the sufficiency of the evidence, based solely on the argument that his victim’s testimony was unbelievable, must fail.

2. Medrano contends that his trial counsel was ineffective because (a) he was unaware of Medrano’s immigration status; (b) he did not object to an English translation of Medrano’s notes to D. R. being sent back with the jury; (c) he did not object to the admission of evidence of adult pornography found on Medrano’s cell phone; and (d) he moved for a directed verdict on all counts without argument.

In order to succeed on his claim of ineffective assistance of counsel, Medrano must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. To establish deficient performance, a person challenging a conviction must overcome the strong presumption that counsel’s representation did not fall below an objective standard of reasonableness. To meet the prejudice prong, Medrano must show “that there is a reasonable probability that, absent any unprofessional errors on counsel’s part, the result of his trial would have been different.” Further, if an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

Medrano argues that his trial counsel rendered ineffective assistance by deciding not to object to allowing the jury to see translations of the notes written by Medrano to D. R. and by not objecting to the admission of adult pornography found on Medrano’s cell phone. There is a strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption. Here, Medrano has not overcome this presumption. At the motion for new trial hearing, trial counsel testified that as to both instances, his decisions not to object were strategic. Trial counsel testified that the letters supported his defense strategy by showing that D. R. had a motive to invent the abuse as a means of getting Medrano out of her mother’s life and that the adult pornography supported his defense strategy that Medrano was only attracted to adults, and not children. Tactical or strategic decisions by defense counsel “do not constitute deficient performance unless they are so patently unreasonable that no competent attorney would have chosen them.” Likewise, when and how to raise objections are generally matters of trial strategy.

Decided May 16, 2012.

Patrick G. Longhi, for appellant.

Garry T. Moss, District Attorney, Cliff Head, Lara A. Snow, Assistant District Attorneys, for appellee.

Medrano next argues that his trial counsel was ineffective because he was not fully aware of Medrano’s immigration status at the time of trial and because he moved for a directed verdict after the close of evidence without any argument to the court. These arguments fail because Medrano has not shown prejudice from the alleged errors. Trial counsel’s failure to provide argument to support his motion for directed verdict is unlikely to have swayed the trial judge. At the motion for new trial, the trial judge stated that “in this case, probably more than most, if not any other ... child molestation case that this Court has presided over, the documentary and recorded evidence is overwhelming.” Further, Medrano has not shown that the result of the trial would have changed if his trial counsel had full knowledge of his immigration status.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

       Medrano was acquitted of battery and sexual battery against a child under 16.

       (Punctuation and footnote omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       (Citation and punctuation omitted.) Bray v. State, 294 Ga. App. 562, 563 (1) (669 SE2d 509) (2008).

       (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

       See Hammontree v. State, 283 Ga. App. 736, 737 (1) (642 SE2d 412) (2007).

        Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).

        Cuzzort v. State, 307 Ga. App. 52, 55 (2) (703 SE2d 713) (2010).

       (Citation omitted.) Id.

       Id.

       (Citation and punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       Id.

       (Punctuation and footnote omitted.) Nesbitt v. State, 296 Ga. App. 139, 142 (3) (d) (673 SE2d 652) (2009).

       Id.

       But compare Padilla v. Kentucky,_U. S._(III) (130 SC 1473, 176 LE2d 284) (2010) (an attorney who fails to advise client that he faced automatic deportation if he entered a plea of guilty was not constitutionally competent).


author: McFADDEN, Judge.

text:
    A12A0508.
    PHILMORE v. THE STATE.
    (729 SE2d 41)
   McFADDEN, Judge.

Horatio Philmore appeals from his convictions for possession of cocaine with intent to distribute and possession of heroin with intent to distribute. He challenges the sufficiency of the evidence supporting the convictions. Because there is sufficient evidence from which a rational trier of fact could have found him guilty beyond a reasonable doubt of the charged offenses, we affirm.

The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), is the proper test when the sufficiency of the evidence is challenged____Under Jackson, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. 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.

(Citations and punctuation omitted.) Williams v. State, 262 Ga. App. 67, 68 (1) (584 SE2d 625) (2003).

So viewed, the evidence shows that in December 2008, members of a sheriff’s narcotics unit used a confidential informant to arrange an undercover purchase of $1,000 worth of cocaine and heroin from Philmore. At the agreed upon time, Philmore arrived in a car at a gas station across the street from the meeting location. Philmore and another man got out of the car. As the other man remained near that car, acting as a lookout, Philmore crossed the street and approached the confidential informant and an undercover officer who were waiting there. Philmore spoke briefly to the undercover officer, but then the other man began shouting, and Philmore headed back across the street. Before he reached the car, another narcotics agent who was on surveillance at the scene approached him and saw Philmore drop a paper towel from his right hand. The agent retrieved the paper towel, which hadbags containing 6.9 grams of cocaine and 1.75 grams of heroin wrapped inside it. According to the expert testimony of an officer specially trained in narcotics, these quantities were more than would be in the possession of a typical drug user and instead “would be for an individual seeking to distribute.” The state also introduced Philmore’s prior convictions for possession of cocaine with intent to distribute and possession of heroin with intent to distribute as similar transaction evidence.

Having reviewed the evidence in the light most favorable to the verdict, we conclude that there was sufficient evidence presented at trial from which a rational trier of fact could have found Philmore guilty beyond a reasonable doubt of possessing both cocaine and heroin with the intent to distribute. See Johnson v. State, 289 Ga. App. 206 (656 SE2d 861) (2008).

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.

Decided May 16, 2012.

Walker L. Chandler, for appellant.

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


text:
    A12A0618.
    THE STATE v. GRUBE.
    (729 SE2d 42)
   McFadden, Judge.

Timothy Harris Grube was indicted for the offenses of attempted child molestation, attempted aggravated child molestation, and computer pornography. After the trial court quashed his first indictment for failing to name the alleged victim of the charged offenses, the state reindicted him for the same offenses, identifying the victim as “Tiffany.” Grube filed a special demurrer seeking to dismiss the second indictment, again arguing that the indictment did not sufficiently identify the alleged victim. The trial court granted the special demurrer, and the state appeals. Reviewing the court’s ruling de novo, see State v. Corhen, 306 Ga. App. 495, 497 (700 SE2d 912) (2010), we find no error. Accordingly, we affirm.

Where, as here, we are reviewing a ruling on a special demurrer before the defendant has gone to trial, then we apply the rule that- a defendant who has timely filed a special demurrer is entitled to an indictment perfect in form and substance. See South v. State, 268 Ga. App. 110, 110-111 (601 SE2d 378) (2004).

The true test of the sufficiency of an indictment to withstand a special demurrer is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

(Citations and punctuation omitted.) State v. English, 276 Ga. 343, 346 (2) (a) (578 SE2d 413) (2003).

The indictment in this case charged Grube with computer pornography under OCGA § 16-12-100.2 (d) by,

between the 9th day of October, 2009, and the 25th day of October, 2009,... intentionally utilizing] a computer Internet service to attempt to lure and entice “Tiffany,” a person believed by the accused to be a child, to commit child molestation and aggravated child molestation.

It charged Grube with attempting to commit a felony under OCGA § 16-4-1 by,

on the 25th day of October, 2009,... attempting] to commit the crime of aggravated child molestation in violation of OCGA § 16-6-4 (c), in that the said accused did knowingly and intentionally perform acts which constituted a substantial step toward the commission of said crime in that the accused did engage in explicit communications with “Tiffany,” a person the accused believed to be a 14 year old girl, describing his desire to engage in oral sodomy with said 14 year old girl, arranged a meeting with her, and arrived at said meeting place.

Finally, the indictment charged Grube with attempting to commit a felony under OCGA § 16-4-1 by,

on the 25th day of October, 2009,... attempting] to commit the crime of child molestation, in violation of OCGA § 16-6-4, in that the said accused did knowingly and intentionally perform acts which constituted a substantial step toward the commission of said crime in that the accused did engage in explicit communications with “Tiffany,” a person the accused believed to be a 14 year old girl describing his desire to engage in sexual intercourse with her, arranged a meeting with her, and arrived at said meeting place with condoms.

1. As an initial matter, the state argues that the trial court erred in considering and granting the special demurrer because Grube relied upon facts outside the indictment, namely that the victim was not an actual child but instead was an adult working with law enforcement. The state contends that this turned Grube’s motion into an improper speaking demurrer. See State v. Givens, 211 Ga. App. 71, 72 (438 SE2d 387) (1993) (a speaking demurrer is void and should never be sustained). We disagree. “A speaking demurrer is one which alleges some new matter, not disclosed by the pleading (indictment) against which the demurrer is aimed and not judicially known or legally presumed to be true.” (Citation and punctuation omitted; emphasis supplied.) Id. In this case, the trial court knew that Grube’s alleged victim was an adult (or adults) because the state had stipulated earlier in the proceedings that “she” was an adult working with law enforcement and the trial court had cited to the state’s stipulation in an order.

2. Citing Dennard v. State, 243 Ga. App. 868 (534 SE2d 182) (2000), the trial court held that Grube’s indictment was insufficient to withstand a special demurrer because it did not adequately identify the alleged victim. The state argues that this was error. We find, however, that the trial court’s ruling was proper under Dennard.

The defendant in Dennard was indicted for attempted child molestation, attempted statutory rape, attempting to entice a child for indecent purposes, and attempted sexual exploitation of children in connection with his exchange of messages over the Internet with an undercover police officer posing as a minor named “Shari.” Id. at 868-869. The trial court denied special demurrers which Dennard had sought to each count on the ground that the indictment did not name the victim of the charged offenses. Id. at 876 (2). We held that the trial court’s denial of the special demurrers was error. Id. at 876-877 (2). In doing so, we noted that our “Supreme Court [has] held that ‘(f)or the protection of the accused it is necessary that, in an indictment for an offense against the person of another, the person injured should be referred to by his correct name, if it be known, or by some name by which he is commonly and generally called.’ ” Id. at 876 (2) (quoting Irwin v. State, 117 Ga. 722 (2) (45 SE 59) (1903)). Although we acknowledged that this rule did not apply if the crime was not an offense against another person — such as soliciting a prostitute (a crime against society) or burglary (a crime against property) — we held that each of the crimes with which Dennard was charged was a crime against a particular person. Id. at 876-877 (2). We concluded that

nothing in the indictment indicates that the intended victim was in fact an undercover officer, as opposed to an actual child. Thus, on its face, the indictment charges Dennard with attempting to commit various crimes against an actual unnamed victim, and nothing in the indictment puts him on notice of who that victim is.

Id. at 877 (2).

The state’s attempts to distinguish Dennard are not persuasive. The state argues that the crimes for which Grube was charged — attempted child molestation, attempted aggravated child molestation, and computer pornography based upon solicitation of child molestation — were not crimes against a particular person but rather crimes against society. But in Dennard we held that attempted child molestation and attempted aggravated child molestation were crimes against a particular person and required the victim to be identified in the indictment, even where the “victim” was a police officer using a pseudonym. Dennard, 243 Ga. App. at 877 (2). We reached the same conclusion in Dennard regarding the offense of enticing a child for indecent purposes, id., an offense that is substantively similar and analogous to the computer pornography offense for which Grube was charged. See Bolton v. State, 310 Ga. App. 801, 804 (1) (714 SE2d 377) (2011); see also State v. Brown, 250 Ga. App. 376, 380 (1) (551 SE2d 773) (2001) (identifying OCGA § 16-12-100.2 as a Code section “directed primarily at prohibiting direct interactions with minor victims located in Georgia”).

Alternatively, the state argues that the name “Tiffany” satisfied Dennard’s requirement that the victim be identified. We are not convinced, however, that the identification of a crime victim in this manner can sufficiently apprise a defendant of what he must be prepared to meet at trial or show with accuracy to what extent the defendant may plead a former acquittal or conviction. See English, 276 Ga. at 346 (2) (a). Instead, this indictment presents the same due process and double jeopardy concerns raised in Dennard. See Sellers v. State, 263 Ga. App. 144, 146 (587 SE2d 276) (2003) (charging document’s identification of child molestation victim solely by initials did not sufficiently identify victim under rule articulated in Dennard, because it could refer to any person with those initials). The state’s argument that Grube knew who was meant by “Tiffany” relies upon facts outside the face of the indictment.

Had this case proceeded to trial and verdict under the current indictments, we do not believe that reversal would be necessary due to the failure to name the intended victim, since it is apparent that [Grube] understands the nature of the charges against him based on information gleaned from sources other than the indictment itself.

Dennard, 243 Ga. App. at 877 (2). At this stage of the proceedings, however, Grube was entitled to an indictment perfect in form and substance. Id. Because this indictment contained inadequate information as to the alleged victim, it was not in perfect form. Id. Accordingly, the trial court did not err in granting Grube’s special demurrer and dismissing the indictment.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.

Decided May 16, 2012

Herbert E. Franklin, Jr., District Attorney, Alan C. Norton, Assistant District Attorney, for appellant.

William D. Cunningham, for appellee.


text:
    A12A0600.
    DEHCO, INC. v. FULTON COUNTY TAX COMMISSIONER.
    (727 SE2d 531)
   McFADDEN, Judge.

This appeal concerns the distribution of funds paid into the court registry in connection with a condemnation proceeding. The condemnee, Dehco, Inc., appeals from the trial court’s order disbursing a portion of the funds to the Fulton County Tax Commissioner (the Commissioner) to cover the 2008 ad valorem taxes on the condemned property. Because the trial court correctly held that Dehco was responsible for the taxes, we affirm.

The relevant facts are undisputed, and we review the court’s ruling de novo. Vesta Holdings I v. Tax Commr. of Fulton County, 259 Ga. App. 717 (578 SE2d 293) (2003). On January 1, 2008, Dehco owned the property at issue. On March 7, 2008, the Georgia Department of Transportation (DOT) filed a petition and declaration of taking. Subsequently, Dehco and the DOT entered into a consent order regarding the condemnation, under which the DOT deposited funds into the court registry. On September 10, 2009, the Commissioner moved for the court to disburse a portion of those funds to cover the unpaid 2008 ad valorem taxes on the property. Subsequently, Dehco filed a competing motion for distribution of the funds. The court denied Dehco’s motion and concluded that, under OCGA § 48-5-10, Dehco was responsible for the 2008 taxes on the property. In a separate order, the court granted the Commissioner’s motion, and it directed the clerk of court to pay the amount of the taxes to the Commissioner and to pay the remaining balance of funds in the registry to a trust account on behalf of Dehco.

Dehco contends that it should be responsible for only a portion of the 2008 taxes and asserts that the court erred in finding it responsible for the entire amount. We disagree. OCGA § 48-5-10 pertinently provides that “[e]ach return by a taxpayer shall be for property held and subject to taxation on January 1 next preceding each return.” Thus, as the owner of the property on January 1, 2008, Dehco was responsible for the 2008 taxes. See Jamestown Assoc. v. Fulton County Bd. of Tax Assessors, 228 Ga. App. 360, 361 (492 SE2d 1) (1997) (ad valorem taxes upon real property are assessed upon the owner of record of the property as of January 1 of each tax year). Absent an agreement with the DOT to prorate those taxes, Dehco remained legally obligated to pay the full amount of the taxes regardless of the subsequent transfer of title to the DOT. See 1988 Op. Atty. Gen. U88-12 (although proration of property ad valorem taxes between a buyer and a seller is customarily included in agreements transferring title to property, such proration “is not provided for or recognized in the law”).

Decided April 26, 2012

Reconsideration denied May 17, 2012

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, Nicholas S. Papleacos, for appellant.

Samuel S. Olens, Attorney General, William S. Sams, Matthew C. Welch, Assistant Attorneys General, Mark Weinstein, for appellee.

Dehco argues that the application of OCGA § 48-5-10 in this manner violated its constitutional right to equal protection of the law by allowing the DOT “to engage in coercive tactics which creates [sic] two classes of condemnees, those who negotiate and sell the property to the DOT before the institution of condemnation proceedings and those who are required to litigate over the value of what has been taken.” The former group, it argues, is in a position to negotiate an agreement in which ad valorem property taxes are prorated; the latter group, into which it fell, is not. But the record does not reflect that Dehco presented this constitutional argument to the trial court and, even assuming that it did, the trial court did not rule on the statute’s constitutionality in either of its orders. Thus, we will not consider arguments on the statute’s constitutionality as applied in this case. See Haynes v. Wells, 273 Ga. 106, 108 (3) (538 SE2d 430) (2000); Great West Cas. Co. v. Bloomfield, 303 Ga. App. 26, 31 (5) (693 SE2d 99) (2010). Cf. East Ga. Land & Dev. Co. v. Baker, 286 Ga. 551, 552 (1) (690 SE2d 145) (2010) (Supreme Court of Georgia has exclusive jurisdiction where constitutionality of statute, as applied, has been raised and ruled upon by trial court).

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


author: DOYLE, Presiding Judge.

text:
    A12A0093.
    RAWLS v. THE STATE.
    (730 SE2d 1)
   DOYLE, Presiding Judge.

Following a jury trial, Julius Rawls appeals his conviction of aggravated assault with intent to rape, aggravated sexual battery, and child molestation, contending that the trial court erred by (1) denying his motion in limine concerning evidence that he had been drinking alcohol, (2) asking a witness questions proving venue, (3) denying his motion for a directed verdict as to the aggravated assault charge, and (4) denying his claim for ineffective assistance of counsel. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that in May 2003, Rawls appeared at his ten-year-old daughter’s school to pick her up before the regular dismissal time. The school secretary called for the daughter, D. R., on the intercom and, as she spoke to Rawls, noticed that he smelled of alcohol. When D. R. arrived and saw her father waiting, she immediately grew afraid and began crying. The secretary called the school counselor, who noticed D. R.’s fearful demeanor and called her back to the office as she and Rawls were walking out. Rawls kept walking and left the school property without waiting for D. R. or speaking to school staff. Upon questioning, D. R. disclosed that her father had sexually abused her, and the counselor escorted D. R. to her grandmother’s residence, which was in the same apartment complex as her father, across the street from the school.

The Department of Family and Children Services was notified of the outcry, and D. R. was removed from her home and interviewed by a forensic specialist at a child advocacy center. D. R. explained that her father sometimes picked her up from school early and brought her home where he forced her to disrobe, he touched her breasts and fondled her vagina, and on at least one occasion he forcibly attempted to have intercourse with her, but she had been able to push him off of her.

Based on the investigation, Rawls was charged with aggravated assault with intent to rape, aggravated sexual battery, and two counts of child molestation. A jury found him guilty on all counts, and Rawls moved for a new trial, which motion was denied, giving rise to this appeal.

1. Rawls contends that the trial court erred by denying his motion in limine seeking to exclude testimony by school personnel that he smelled of alcohol on the day that D. R. made the outcry at school. Specifically, Rawls argues that the trial court erroneously concluded that (a) the testimony was res gestae, and (b) there was an adequate factual basis for the testimony. We review the trial court’s denial of a motion in limine for an abuse of discretion.

(a) Res gestae. At the hearing on Rawls’s motion, the trial court concluded that the evidence of Rawls’s alcohol use on the day of the outcry was admissible because “it goes to the res gestae [,] and it’s relevant to that extent.” Rawls argues that because no crime was committed on the day of D. R.’s outcry at school, the circumstances of that day cannot be considered part of the res gestae of the crime.

Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court; it does not matter that the [circumstance] does not establish directly the main offense.

Here, D. R. had described the abuse to interviewers and in direct testimony as occurring when Rawls had been drinking alcohol and when he picked her up early from school, as he did on the day of her outcry at school. Specifically, D. R. told the forensic interviewer that “he does this when he’s drunk sometimes,” and she testified at trial that she smelled alcohol when he abused her. The outcry itself was direct evidence of the abuse, and Rawls’s odor of alcohol on the day of D. R.’s outcry was relevant as one of the circumstances leading up to the outcry, particularly because it aroused suspicion by school personnel who intervened and precipitated D. R.’s outcry. Further, evidence that Rawls had consumed alcohol did not itself place his character at issue, so in the absence of any other articulated basis to exclude the evidence, the trial court did not abuse its discretion by admitting the evidence as a part of the circumstances of the outcry.

(b) Factual basis. Rawls argues that because D. R. did not specifically testify that she smelled alcohol on him on the day of her outcry at school, there was an inadequate factual basis to admit the evidence. Nevertheless, the factual basis demonstrating the relevance of the evidence did not depend on D. R.’s subjective belief of Rawls’s use of alcohol on the day of her outcry. As explained above, Rawls’s odor of alcohol was part of the relevant circumstances surrounding D. R.’s outcry, at least in part because it was a cause of concern among the school personnel who offered direct testimony of their observations. Therefore, we discern no abuse of discretion.

2. Rawls next contends that the trial court improperly asked questions eliciting evidence proving venue in the following colloquy:

State [to the school guidance counselor]: When [D. R.] told you that her father forced himself upon her, did she tell you what part of her body he touched?
Witness: Yes. Her breasts and her vagina.
State: Thank you. Nothing further, Judge.
Court: Let me ask you, ma’am [,] where is the school located? Witness: It’s in Atlanta, Georgia. And the school at that time was located on Fair Street.
Court: Is that in Fulton County?
Witness: Fulton County, Judge.
Court: And those apartments, where are they located?
Witness: They’re located directly across from the school.
Court: All right. Is that in Fulton County?
Witness: Yes, in Fulton County, Judge.
Court: Thank you. All right. [Witness excused.]

Rawls points out that up until this point, the State had not proved venue, an essential jurisdictional fact which the State had the burden to prove. Rawls argues that the trial court abandoned its role as an impartial arbiter in violation of OCGA § 17-8-57, which provides that “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.”

This colloquy is similar to those analyzed in State v. Anderson and State v. Gardner, two close-in-time Supreme Court of Georgia cases reaching opposite conclusions about the propriety of a trial court’s questions concerning venue. The cases turn on whether the trial court expressed an actual opinion as to whether venue had been proved. In Gardner, the Court addressed a colloquy at the close of the State’s first witness in which the trial court asked, “Prove venue. Did you prove venue? . . . Why don’t we go ahead and do that before we forget it.” In that case, the Court held that the trial court had not actually expressed an opinion as to whether venue had been proved, so there was no violation of OCGA § 17-8-57.

In Anderson, the Court reached the opposite conclusion with respect to the following questions by the trial court: “Did we establish venue on this one? . . . All right. I know we had some confusion because she had worked at one [location] and she’s now working [at] another [location]. I just wanted to make sure.” Based on those comments, the Supreme Court concluded that the trial court went farther than the comments in Gardner and had intimated an opinion with the remark, “I just wanted to make sure.” Therefore, the Court held that the trial court had violated OCGA § 17-8-57.

Here, the trial court’s questions are more akin to the colloquy in Gardner, so they do not constitute reversible error. In the present case, the trial court merely asked the witness questions about the locations of events and did not refer to whether venue had been proved. “Atrial judge may propound questions to a witness to develop the truth of the case or to clarify testimony, and the extent of such an examination is a matter for the trial court’s discretion,” so long as no opinion is intimated by the court. Based on the record before us, we discern no error.

3. Rawls next contends that the trial court erroneously denied his motion for a directed verdict as to the charge of aggravated assault with, intent to rape. Specifically, he argues that because an assault can be committed by placing the victim in “reasonable apprehension of immediately receiving a violent injury,” he should have been charged with attempted rape because otherwise the criminal act would necessarily turn on the victim’s subjective fear of being raped. But this ignores the statutory requirement that the victim’s fear of injury be “reasonable,” and the facts presented here — that Rawls disrobed D. R., forced her onto a bed, and attempted to have intercourse with her before she pushed him off — supported the finding that Rawls committed the elements of aggravated assault with intent to rape.

4. Finally, Rawls contends that the trial court erred by denying his claim of ineffective assistance of counsel, based on trial counsel’s failure to: (a) object to the State’s opening statement commenting on what evidence the defense would present; (b) object to the State’s bolstering of witnesses’ credibility; (c) call Rawls to testify; and (d) object to the State’s closing argument as to the prosecutor’s personal opinion of the evidence and offenses.

Under Strickland v. Washington, to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. “There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. In reviewing the trial court’s decision, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

(a) Failure to object to the State’s opening statement. Rawls argues that his trial counsel performed deficiently by failing to object to certain statements by the State made during its opening statement that commented on what evidence the defense would produce. But at the hearing on Rawls’s motion for new trial, trial counsel testified that during the opening statement, he would not want to “appear as though we’re trying to hide something, especially when [the defense would bring out the evidence mentioned by the State]. To stand up and try to block that doesn’t seem to be a great tactical value.” This is consistent with trial counsel’s stated philosophy that “overall, I’m not one to necessarily just stand up for the purposes of correcting a record or — for instance, if something is potentially damaging or damaging to my client, if I’m going to draw a great deal more attention to it, that’s a factor I will take into consideration.” In light of this reasonable trial strategy, Rawls cannot demonstrate deficient performance on this basis.

(b) Failure to object to bolstering. Rawls next focuses on certain occasions in which the State bolstered the credibility of witnesses. One of the bolstering episodes occurred during the State’s redirect, after Rawls’s own counsel had asked the witness (Rawls’s son and D. R.’s stepbrother) whether he believed D. R.’s accusations against Rawls simply “because you heard your sister say it?” Thus, objecting to testimony from family members that they believed D. R. would have been inconsistent with trial counsel’s stated trial strategy that the family had engaged in a rush to judgment against Rawls, which strategy trial counsel explicitly pursued in his opening statement and closing argument. Accordingly, in light of this reasonable trial strategy, this ground does not support Rawls’s claim.

The second bolstering episode involved D. R.’s mother, whom trial counsel described as “a very difficult witness” to prepare for because she was not aggressively accusing Rawls. Trial counsel explained that his team was unsure whether her testimony would be helpful or harmful, and they were concerned that the mother would be a sympathetic figure whom the jury would believe was manipulated by Rawls. Therefore, his team “spent a great deal of time” preparing strategy for how to cross-examine the mother. In light of these concerns and trial counsel’s overall trial strategy, we discern no error. The inquiry in an ineffective assistance claim “focuses on the reasonableness of counsel’s conduct from counsel’s perspective at the time of trial. Thus, the courts will not second-guess counsel’s decisions concerning matters of trial strategy and tactics.”

(c) Failing to call Rawls to testify. At the hearing on the motion for new trial, Rawls’s trial counsel testified that Rawls’s trial team discussed the decision extensively and weighed the “pros and cons” of calling Rawls to testify. Counsel noted that Rawls had a bad temper at the time of trial, the State’s counsel was “very experienced, very capable ... a professional cross-examiner . . . [, and] the potential downside was overwhelming in this case.” Counsel further explained that after discussing the risks posed by Rawls’s testimony, Rawls understood what counsel was telling him and agreed not to testify. Such “[i]nformed strategic decisions do not constitute ineffective legal assistance.”

(d) Failing to object to the counsel for the State’s argument as to her personal opinion of the evidence and offenses. At closing, the State’s counsel attacked the defense theory that, based on Rawls’s concern for a sexually charged note found in D. R.’s backpack, Rawls was an over-protective father. The State’s counsel argued that this view was “a bunch of crap... I call it like it is... I don’t want [a father] who tries to have sex with me when I’m ten years old.” Rawls’s trial counsel did not object at the time but did raise an objection during the jury deliberations. As he explained to the trial court at trial, trial counsel did not object contemporaneously because it was “right at the end of [the State’s] argument. It really wasn’t time to stand up and object. Plus I’m very reluctant to interrupt counsel in closing argument unless I’m real sure of what I’m doing.” This reasoned decision was a reflection of the tactical considerations that counsel routinely weigh throughout trial.

Decided MAy 17, 2012.

Charles H. Frier, for appellant.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Joshua D. Morrison, for appellee.

With the benefit of hindsight, one can always argue that trial counsel’s failure to object was something that no reasonable trial lawyer would do. Our task, however, is to determine whether, in the throes of closing argument, no reasonable attorney, listening to the inflection of the speaker’s voice and judging the jurors’ reactions, would choose to remain silent instead of objecting and calling attention to the improper argument. Here, [Rawls’s] attorney reasonably chose silence, and we will not use hindsight to second-guess that decision on appeal.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       OCGA§ 16-5-21 (a) (1).

       OCGA § 16-6-22.2 (b).

       OCGA§ 16-6-4 (a) (1).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       One child molestation count was merged with the aggravated assault count for purposes of sentencing.

       See Thompson v. State, 277 Ga. App. 323, 324 (2) (626 SE2d 825) (2006).

        Latham v. State, 195 Ga. App. 355, 356 (2) (393 SE2d 498) (1990). See also Hart v. State, 185 Ga. App. 141, 142-143 (4) (363 SE2d 599) (1987) (“The State is entitled to inform the jury of all the circumstances surrounding the commission of the crime or crimes charged[J and we find no error in admitting this evidence as part of the res gestae even though it may have incidentally placed the defendant’s character in evidence.”) (punctuation omitted)).

       See, e.g., Dent v. State, 220 Ga. App. 147 (1) (469 SE2d 311) (1996) (outcry to family members was evidence corroborating the victim’s direct testimony). Rawls does not challenge the admissibility of the outcries under the Child Hearsay Statute, OCGA § 24-3-16.

       See Steverson v. State, 276 Ga. App. 876, 880 (4) (625 SE2d 476) (2005) (“The consumption of alcohol by an adult is irrelevant to the issue of character.”) (punctuation omitted).

       The State had not rested and the State did later elicit proof of proper venue from a different witness.

       See, e.g., Jones v. State, 272 Ga. 900, 901-902 (2) (537 SE2d 80) (2000).

       287 Ga. 159 (695 SE2d 26) (2010).

       286 Ga. 633 (690 SE2d 164) (2010).

       Id. at 633.

       See id. at 635.

       (Emphasis supplied.) Anderson, 287 Ga. at 160 (1).

       See id. at 160-161 (1).

       See id. at 161 (1).

       But we note the cautionary language in that case strongly discouraging “the giving of direction or the use of language that could create the appearance of alignment between the trial court and either the prosecution or defense.” Gardner, 286 Ga. at 635.

       (Citation omitted.) Finley v. State, 286 Ga. 47, 51 (9) (a) (685 SE2d 258) (2009).

       See OCGA § 16-5-21 (a) (“A person commits the offense of aggravated assault when he or she assaults: (1) With intent to murder, to rape, or to rob ...”); OCGA§ 16-5-20 (a) (“Aperson commits the offense of simple assault when he or she either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.”).

       OCGA§ 16-5-20 (a) (2).

       See Wright v. State, 314 Ga. App. 353, 354 (1) (723 SE2d 737) (2012) (evidence that defendant attacked victim and dragged her toward secluded area supported conviction for attempted rape and aggravated assault with intent to rape); Smith v. State, 313 Ga. App. 170, 174 (2) (721 SE2d 165) (2011) (“conviction for aggravated assault with intent to rape [can be] supported by the same evidence that he assaulted the victim with the intent to rape”); Butler v. State, 194 Ga. App. 895, 897 (2) (392 SE2d 324) (1990) (“The crime of aggravated assault with intent to rape is complete when there is a substantial step toward a battery of the victim, i.e., an assault, coupled with intent to rape.”) (punctuation omitted).

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

       See id. at 687-688, 694 (III) (A)-(B).

       (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

       See Strickland, supra, 466 U. S. at 697 (TV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

       (Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       See generally Parker v. State, 277 Ga. 439, 441 (2) (588 SE2d 683) (2003) (“it is inappropriate for a prosecutor in a criminal case to discuss in opening statement the evidence she anticipates the defense will present at trial”).

       See Pruitt v. State, 282 Ga. 30, 34 (4) (b) (644 SE2d 837) (2007).

       (Punctuation omitted.) Smith v. State, 261 Ga. App. 25, 27 (3) (581 SE2d 673) (2003). See also Cruz v. State, 305 Ga. App. 805, 812 (3) (e) (700 SE2d 631) (2010) (affirming denial of an ineffective assistance claim when trial counsel could not recall the specific reason for a trial decision, and the facts of the case supported the trial court’s finding that the decision was reasonable trial strategy).

        Phillips v. State, 277 Ga. 161, 163-164 (b) (587 SE2d 45) (2003).

       See Braithwaite v. State, 275 Ga. 884, 886 (2) (b) (572 SE2d 612) (2002) (no ineffective assistance because attorney made reasonable strategic decision not to object to the State’s improper “golden rule” argument).


text:
    A12A0387.
    GOMEZ v. THE STATE.
    (728 SE2d 691)
   McFadden, Judge.

Clayton Ricardo Gomez appeals his theft by taking conviction. He argues that the trial court erred in failing to give curative instructions or to rebuke counsel because of certain comments the assistant district attorney made in opening statement. We find the error, if any, to be harmless, given that the only issue at trial was Gomez’s intent. We also conclude that, contrary to Gomez’s assertion, the state did not make a prohibited golden rule argument during closing argument. We therefore affirm Gomez’s conviction.

Gomez was convicted of taking Clyde Stutts’s boat trailer. He admitted taking the trailer; his defense was that he thought the trailer was abandoned.

1. Gomez argues that the trial court should have rebuked the assistant district attorney or issued curative instructions because of certain comments the assistant district attorney made in his opening statement. Specifically, the assistant district attorney said:

[The investigator] got a lead that a stolen trailer was there, and he went to Mr. Gomez’s residence. Pursuant to á Fourth Amendment waiver, he went onto his property and looked at a trailer that was parked on Mr. Gomez’s property, determined that it was stolen, determined that it belonged to Mr. Clyde Stutts, and ultimately took possession of it and returned it to Clyde Stutts.

Once the assistant district attorney had completed his opening statement, Gomez objected to the reference to “a lead,” which he contended violated an order in limine to exclude any statements made by a confidential informant or any other witness not subpoenaed to testify. He also argued that the reference to a Fourth Amendment waiver impermissibly placed his character in issue.

We observe that the record contains no order granting the motion in limine. Although in his brief Gomez cites a particular page in the appellate record as being an order granting the motion in limine, that citation refers to an order on Gomez’s “Objection To Proceeding on the State’s Accusation,” not his motion in limine. Nonetheless, the trial court instructed the assistant district attorney to “[s]tay away from the ‘lead’ language” and that it was unnecessary to reference the Fourth Amendment waiver. Gomez argues that the trial court should have additionally given curative instructions or rebuked counsel in accordance with OCGA § 17-8-75, which provides:

Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.

But Gomez did not object to the comments in the opening statement at the time they were made.

Instead, he waited until the end of opening argument to [object]. And it is plain that a defendant must timely object to the alleged impropriety in opening argument so that the trial court can take remedial action, if any is warranted. Having failed to assert a contemporaneous objection, [Gomez] has waived his right to complain about the remarks on appeal.

(Citations and punctuation omitted.) Brooks v. State, 284 Ga. App. 762, 764 (644 SE2d 891) (2007).

In any event, assuming that Gomez had not waived the issue and that the comments were prejudicial within the meaning of OCGA § 17-8-75, we find that “it is highly probable that the trial court’s [alleged] error in failing to comply with OCGA § 17-8-75 did not contribute to the verdicts.” Arrington v. State, 286 Ga. 335, 346 (16) (a) (687 SE2d 438) (2009). The trial court instructed the jury that opening statements are not evidence.

To the extent that Gomez argues that the reference to the Fourth Amendment waiver entitles him to reversal because it indirectly announced to the jury that he was on probation, thus placing his character in issue, his argument fails. A passing reference to probation does not place a defendant’s character in issue, Isaac v. State, 269 Ga. 875, 877-878 (5) (505 SE2d 480) (1998), and here, there was even less than that.

2. Gomez argues that the assistant district attorney made a prohibited golden rule argument in his closing.

A golden rule argument is one which, either directly or by implication, tells the jurors that they should put themselves in the injured person’s place and render such a verdict as they would wish to receive were they in the injured person’s position. Such an argument is impermissible because it encourages the jurors to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.

(Citations and punctuation omitted.) Jackson v. State, 282 Ga. 494, 499 (5) (651 SE2d 702) (2007). Gomez argues that the following portion of the state’s closing argument violated this prohibition:

And if we’re not going to hold Mr. Gomez accountable in this case, then maybe somebody can stop by my office and tell me how many more months before he can go steal it again. And I’m not being facetious, but that’s exactly what Mr. McNeill is asking you to do.

Decided May 17, 2012.

Robert R. McNeill, for appellant.

Lee Darragh, District Attorney, John G. Wilbanks, Jr., Assistant District Attorney, for appellee.

This was not a prohibited golden rule argument.

[T]he prosecutor’s comments did not entreat the jury to place themselves in the victim’s shoes with regard to the crime committed. Rather, the comments appealed to their desire to create a safe community. And a prosecutor generally may appeal to the jury to convict for the safety of the community.

(Citations and punctuation omitted.) Emmanuel v. State, 300 Ga. App. 378, 381 (4) (685 SE2d 361) (2009).

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.

       Because Gomez did not raise the issue at trial, we do not reach the issue of whether the argument was an improper future dangerousness argument. Carr v. State, 282 Ga. App. 199, 200 (2) (638 SE2d 348) (2006). See also Jones v. State, 288 Ga. 431, 432-433 (704 SE2d 776) (2011).