author: DOYLE, Presiding Judge. BOGGS, Judge,

text:
    A12A2351.
    GEICO GENERAL INSURANCE COMPANY v. HOSPITAL AUTHORITY OF CLARKE COUNTY et al.
    (738 SE2d 325)
   DOYLE, Presiding Judge.

The Hospital Authority of Clarke County and Athens Regional Medical Center (collectively, “the Hospitals”) filed suit against Geico General Insurance Company (“Geico”) to enforce a hospital lien. Geico filed a motion for summary judgment, arguing that the Hospitals’ claims were barred by the one-year filing deadline set forth in OCGA § 44-14-473 (a). The trial court denied the motion, and we granted Geico’s application for interlocutory appeal. For reasons that follow, we reverse.

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. A de novo standard of review applies to an appeal from a grant 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.

The facts in this case are undisputed. In March 2010, Justyna Kunz was involved in a car accident with Geico’s insureds, Crystal A. Kalish, Joseph P. Kalish, and Elizabeth A. Kalish. Kunz, who was injured in the collision, received medical treatment at Athens Regional Medical Center, and the Hospitals filed three hospital liens totaling $66,999.22. Kunz subsequently filed suit against the Kalishes. On September 10, 2010, Kunz’s attorney wrote a letter to the Kalishes’ attorney accepting their $100,000 policy limit settlement offer. On September 23, 2010, the Kalishes’ attorney sent a letter confirming the agreement and enclosing the settlement documents and a settlement check for $100,000. The settlement documents, which were signed on October 8, 2010, expressly required Kunz to satisfy the hospital liens out of the settlement fund and constituted a “general [ ] release . . . from all legal and equitable claims of every kind and nature.” The liens, however, were never satisfied.

On June 7, 2011, the Hospitals’ attorney sent a letter to Julie Hubbard, a claims manager for Geico, in an attempt to obtain payment of the liens. The Hospitals’ attorney acknowledged in the letter that “on September 22, 2010, Geico and [Kunz] entered into a settlement and release agreement.” When Geico did not satisfy the liens, the Hospitals filed suit on October 6, 2011. Geico moved for summary judgment, arguing that the Hospitals’ action was not timely under OCGA § 44-14-473 (a). The trial court denied the motion, and we granted Geico’s application for interlocutory appeal.

Geico argues that the trial court erred by denying its motion for summary judgment because the Hospitals failed to file their action to enforce their liens within one year of the September 10, 2010 settlement between Geico and Kunz as required by OCGA § 44-14-473 (a). The Hospitals, on the other hand, contend that their action to enforce the lien was timely because it was filed within one year of the October 8, 2010 execution of the release.

Resolution of this issue requires analysis of OCGA § 44-14-473 (a), which provides:

No release of the cause or causes of action or of any judgment thereon or any covenant not to bring an action thereon shall be valid or effectual against the lien created by Code Section 44-14-470 unless the holder thereof shall join therein or execute a release of the lien; and the claimant or assignee of the lien may enforce the lien by an action against the person, firm, or corporation liable for the damages or such person, firm, or corporation’s insurer. . . . The action shall be commenced against the person liable for the damages or such person’s insurer within one year after the date the liability is finally determined by a settlement, by a release, by a covenant not to bring an action, or by the judgment of a court of competent jurisdiction.

When interpreting a statute, we are required “to consider the statute as a whole and look for the intent of the legislature.” “When a statute contains clear and unambiguous language, such language will be given its plain meaning and will be applied accordingly.” “We also must endeavor to give each part of the statute meaning and avoid constructions that make some language mere surplusage or meaningless.” Finally, “[wjhere the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.”

Here, OCGA § 44-14-473 (a) unambiguously states that actions to enforce hospital liens must be commenced within one year after the date the liability is finally determined by one of four events: (1) a settlement; (2) a release; (3) a covenant not to file suit; or (4) a judgment. A settlement has been defined as “ ‘an agreement to terminate or forestall all or part of a lawsuit.’ ” In the absence of a formal release, such an agreement may be enforced based upon letters prepared by the attorneys, which memorialize the terms of the agreement.

Here, the letters exchanged by Kunz’s and the Kalishes’ lawyers evince a verbal settlement agreement in September 2010. The Hospitals’ liens were against Kunz’s cause of action against the Kalishes, and the settlement resolved liability in that action by virtue of Kunz’s release of “all legal and equitable claims of every kind and nature” against the Kalishes.* This agreement, of which the Hospitals were aware in June 2011, constituted a final determination of liability by a settlement contemplated by OCGA § 44-14-473 (a). To hold that the date the release was executed started the one-year clock would, under the circumstances of this case, render meaningless the term “settlement” in the statute, a result which is not permitted under law. Accordingly, the Hospitals’ October 2011 action to enforce their liens was time-barred under the plain language of the Code section, and the trial court erred by denying Geico’s motion for summary judgment.

Judgment reversed.

Andrews, P. J., concurs. Boggs, J., concurs fully and specially.

BOGGS, Judge,

concurring fully and specially.

I concur fully in the majority opinion because it is the correct result under the circumstances of this case. However, I write specially to express my concern that the language of OCGA § 44-14-473 has the potential for creating problems in the future in analyzing the statute, particularly in light of our court’s existing body of law on the creation and legal effect of settlements and releases. Section (a) provides that an action to enforce a lien “shall be commenced against the person liable for the damages or such person’s insurer within one year after the date the liability is finally determined [(1)] by a settlement, [(2)] by a release, [(3)] by a covenant not to bring an action, or [(4)] by the judgment of a court of competent jurisdiction.” (Emphasis supplied.) It is clear from this language that the legislature intended to characterize each of these four events as a means of finally determining liability. And in this case, as held by the majority, any such “liability” was first and finally determined by the September 2010 settlement agreement. But our analysis in cases of settlement and release is made more difficult by the language of this Code section because, as in many circumstances under our law, neither a settlement nor a release establishes liability. While the Code section understandably treats the term “settlement” as describing another means by which litigation is brought to an end and potential liability foreclosed by payment of a claim, a “settlement” under Georgia law does not necessarily constitute such a clear and final termination of 3.11. cl3inis

Herring v. Dunning, 213 Ga. App. 695, 697 (446 SE2d 199) (1994), cited by the majority, explains that

[i]n litigation, “Compromise” is synonymous with “Settlement.” Settlement is defined in part as an agreement by which parties having disputed matters between them reach or ascertain what is coming from one to the other. Black’s Law Dictionary (4th ed.). A settlement is an agreement to terminate or forestall all or part of a lawsuit. The word “settle” has an established legal meaning and implies a mutual adjustment of accounts between different parties and an agreement upon the balance.

(Citations and punctuation omitted.) Id. And a “release” is defined as the “ [liberation from an obligation, duty, or demand; the act of giving up a right or claim to the person against whom it could have been enforced.” Black’s Law Dictionary (9th ed. 2009). Neither an agreement to terminate a lawsuit nor an agreement to abandon a claim of right determines liability. As explained in Integon Indem. Corp. v. Henry Med. Center, 235 Ga. App. 97, 100 (2) (508 SE2d 476) (1998), liability is “avoided permanently” by a settlement and release. Indeed, the lien authorized by OCGA § 44-14-470 (b) is a lien on “any and all causes of action.” So once the cause of action has been permanently avoided or resolved by settlement or release or covenant not to sue, or liability has been finally determined by judgment, the lienholder has one year to commence an action to enforce its lien. Indeed, the purpose of OCGA § 44-14-473 is to establish the time within which the lienholder may begin to pursue the enforcement of its lien.

I also write to express my concern about the application of OCGA § 44-14-473 as it affects the ability of the lienholder to commence an action. The statute does not require the injured person or the person’s insurer to provide notice to the hospital lienholder in the event of a settlement, release, covenant not to sue, or judgment. But if, as seems likely, the lienholder is unaware of the occurrence of any of these events, its right to bring an action within one year is limited by the time within which it fortuitously discovers that one of these events has occurred. While in this case, it is apparent that the Hospitals were aware of the settlement, I do not believe that the legislature intended for a lienholder to be foreclosed from bringing an action because it did not discover one of the events listed in OCGA § 44-14-473 (a) until after the expiration of the one-year limitation period. A statutory notice requirement to the lienholder would be a more prudent method to avoid such an inequitable result.

Decided February 13, 2013

Carlock, Copeland & Stair, Jason W. Hammer, for appellant.

Lewis, Brisbois, Bisgaard & Smith, Kristopher R. Alderman, Douglas T. Gibson, Miyong M. Park, for appellees.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997), citing OCGA § 9-11-56 (c).

       (Emphasis supplied.)

        Boyd v. JohnGalt Holdings, LLC, 318 Ga. App. 866, 870 (2) (736 SE2d 459) (2012), citing OCGA § 1-3-1 (a).

        Opensided MRI of Atlanta, LLC v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010).

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

       See Six Flags Over Ga. II v. Hull, 276 Ga. 210, 211 (576 SE2d 880) (2003).

       The one-year time limitation set forth in OCGA § 44-14-473 (a) explicitly applies to hospital liens created by OCGA § 44-14-470, which provides hospitals and certain other medical providers with an automatic lien for reasonable charges of an injured person. See OCGA § 44-14-470 (b). We therefore reject the Hospitals’ contention that the time limitation in OCGA § 44-14-473 (a) does not apply to hospital liens perfected under OCGA § 44-14-471.

        Herring v. Dunning, 213 Ga. App. 695, 697 (446 SE2d 199) (1994).

       See, e.g., id.

       See OCGA § 44-14-470 (b) (providing that a hospital shall have a lien for reasonable charges “upon any and all causes of action accruing to the person to whom the care was furnished” or her personal representative) (emphasis supplied).

        See Integon Indem. Corp. v. Henry Med. Center, 235 Ga. App. 97, 100 (2) (508 SE2d 476) (1998).

       See id.

       See id.

       OCGA § 44-14-473 (a) also provides that an action to enforce a lien “shall be commenced against the person liable for the damages or such [liable] person’s insurer.” In the case of settlement and/or release, however, no person is liable for damages.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A12A2387.
    BEVINGTON v. CAVALRY PORTFOLIO SERVICES, LLC.
    (738 SE2d 329)
   DOYLE, Presiding Judge.

Charles Bevington appeals pro se from the grant of summary judgment to Cavalry Portfolio Services, LLC (“Cavalry”), in its action on a credit card agreement filed against Bevington. We affirm in part and reverse in part, for the reasons that follow.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Ade novo standard of review applies to an appeal from a grant 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.

Cavalry’s October 6, 2010 complaint alleged that Bevington had entered into a credit card agreement with MBNA America Bank, NA, which account was ultimately transferred to Cavalry. Bevington did not file an answer, and the trial court granted Cavalry’s motion for a default judgment as to liability. In a subsequent amended complaint, Cavalry alleged that Bevington defaulted on the account and that it was entitled to recover from him the $12,405.67 balance, interest in the amount of $8,527.77, additional interest at the rate of 7 percent beginning onDecember 15,2011, plus $2,041.06 in attorney fees.

Cavalry moved for summary judgment and attached a supporting affidavit signed by Stephanie Cappelli, Cavalry’s “[l]egal [ajdministrator.” Cappelli stated therein that, based on her review of Bevington’s records, Bevington owed Cavalry the principal balance of $12,405.67, plus interest accrued at a rate of seven percent as set forth in the contract between Bevington and Cavalry’s assignor, along with $2,041.06 in “reasonable attorney[ ] fees.” The trial court granted summary judgment to Cavalry “in the principal amount of $12,405.67, $8,606.28 interest through the date of January 17, 2012, continuing interest at the rate of 7 [percent] per annum[,] and $2,041.06 in attorney [ ] fees, plus all costs of court.. ..” This appeal followed.

1. As an initial matter, we note that Bevington’s brief fails to comply with Court of Appeals Rule 25 (c) (1), which requires that “[t]he sequence of arguments in the briefs shall follow the order of the enumeration of errors, and shall be numbered accordingly.” Bevington enumerates three separate errors, but he groups them into one single argument.

As we have held, Rule 25 (c) (1) is more than a mere formality. It is a requirement which this Court imposes to ensure that all enumerations of error are addressed and to facilitate review of each enumeration. By failing to comply with the rule, [Bevington] has hindered the Court’s review of his assertions and has risked the possibility that certain enumerations will not be addressed. Accordingly, to the extent that we are able to discern which of the enumerations are supported in the brief by citation of authority or argument, we will address those enumerations.

In addition, Cavalry has failed to file an appellate brief, further hindering our review of this matter.

2. Bevington argues that the trial court erred by granting Cavalry’s motion for summary judgment “without notice to [him] or a hearing and an opportunity to present evidence in opposition to the motion for summary judgment.” This enumeration is without merit.

The record on appeal contains a certificate of service from Cavalry indicating that it served Bevington with a copy of the motion for summary judgment. The record also contains a copy of a letter from Cavalry’s attorney to the trial court requesting a ruling without a hearing, which letter indicates that the attorney sent a copy thereof to Bevington. Bevington did not file a response to the summary judgment motion, nor did he request a hearing.

“[Ujnder Uniform Superior Court Rule 6.3, a trial court may decide a motion for summary judgment without an oral hearing in the absence of a written request for one by either party.” “In the absence of such a request, it was not error for the trial court to rule on the motion for summary judgment without a hearing.”

3. Bevington also contends that the trial court erred by “backdating” the summary judgment order, “which would entitle [Cavalry] to double recover[y] on the judgment.” We disagree.

The handwritten date on the order is March 12, 2008. This appears to be a scrivener’s error, however. The clerk’s file-stamp indicates that the order was filed on March 12, 2012. “The date the judgment was filed with the court clerk, not the date the trial judge signed the order, constitutes ‘entry’ of the judgment.” Accordingly, this enumeration is without merit.

4. Finally, Bevington argues, without offering any specifics, that he “disputes the validity and amount of the alleged debt claimed by [Cavalry].” Our de novo review indicates that the trial court’s judgment is not proper.

The trial court awarded Cavalry interest at the rate of seven percent. The agreement between the parties, which Cappelli attached as an exhibit to her affidavit, states that the annual percentage rate on Bevington’s account was 5.90 percent. In her affidavit, Cappelli states that Bevington’s account “was charged-off as uncollectible on August 30, 2007,” and “[s]ince the date of the charge-off, interest has continued to accrue at a rate of 7.000 [percent] per annum, pursuant to the contract between [Bevington] and [Cavalry’s] assignor.” Parol evidence, however, is without probative value to vary the terms of a written contract, even if admitted without objection. Thus, the trial court erred by awarding interest at the rate of seven percent.

Decided February 13, 2013.

Charles Bevington, pro se.

Sherwin P. Robin, for appellee.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Boggs, J., concur.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       (Punctuation omitted.) Barnett v. Fullard, 306 Ga. App. 148, 149-150 (1) (701 SE2d 608) (2010).

       Rose v. Household Finance Corp. II, 316 Ga. App. 282, 285, n. 3 (728 SE2d 879) (2012).

        Aniebue v. Jaguar Credit Corp., 308 Ga. App. 1, 7 (3) (708 SE2d 4) (2011).

        In the Interest of K. D., 272 Ga. App. 803, 805 (613 SE2d 239) (2005), citing OCGA § 9-11-58 (b); Blanton v. Moseley, 133 Ga. App. 144 (1) (210 SE2d 368) (1974).

       It is not clear from the order how the interest was calculated, including the date upon which it began to run.

       See OCGA § 13-2-2 (1); Paige v. Jurgensen, 204 Ga. App. 524, 525 (1) (419 SE2d 722) (1992) (“Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. Such a contract is the only evidence of what the parties intended and understood by it. . . . [P]arol evidence . . . admitted without objection or over objection... is without probative value to vary terms of a written contract.”) (citations and punctuation omitted).

       See Aniebue, 308 Ga. App. at 7 (2).


text:
    A12A1864.
    HART v. THE STATE.
    (738 SE2d 331)
   DOYLE, Presiding Judge.

Travis Demond Hart appeals the denial of his motion to quash his indictment, which charged him with three counts of sexual assault against a person in custody in violation of OCGA § 16-6-5.1 (b) (1). We affirm, for the reasons that follow.

“We begin by noting that the interpretation of a statute is a question of law, which is reviewed de novo on appeal. Because the trial court’s ruling on a legal question is not due any deference, we apply the ‘plain legal error’ standard of review.”*

All three counts of Hart’s indictment alleged that he engaged in sexual contact with a person he knew was a student at the high school where he was employed as “a paraprofessional... who taught in the special needs class and who was an assistant coach with the high school track team, the same being a teacher with supervisory and disciplinary authority.” In conjunction with the motion to quash, Hart and the State entered into written stipulations, including that Hart: “was a certified [pjaraprofessional [e] ducator”; “coached the high school track team and football team ... as an assistant coach”; “was assigned to the special needs classroom [and a]s part of his job, . . . would assist the certified teacher in her daily lesson plan and roles,... would help children read words by reading the words to them[,] . . . would set up reading books for the week, [and] would read math problems to the children”; and “had the authority to implement appropriate rules and procedural safeguards regarding the management of behaviors of individuals with exceptional learning needs.” The stipulation also provided that the school principal “would testify that. . . Hart did have supervisory and disciplinary authority,” but noted that Hart disputed such authority.

OCGA § 16-6-5.1 (b) (1) provides in relevant part:

A person who has supervisory or disciplinary authority over another individual commits sexual assault when that person . . . [i]s a teacher, principal, assistant principal, or other administrator of any school and engages in sexual contact with such other individual who the actor knew or should have known is enrolled at the same school. . . .

“In the construction of statutes, the courts shall look diligently for the intention of the General Assembly. In so doing, the ordinary signification shall be applied to all words. Where the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly.”

“The ordinary, logical, and common meaning of the term” “teacher” would include “a paraprofessional. . . who taught in [a high school classroom], . . . the same being a teacher with supervisory and disciplinary authority” as the indictment in this case alleges. By holding otherwise, we would contravene the legislature’s intention to criminalize sexual activity between a school administrator or a school employee who teaches and a student at the school.

Hart argues that the trial court erred by denying his motion to quash his indictment because he is not a teacher, but a paraprofessional, and OCGA § 16-6-5.1 (b) (1) does not criminalize sexual activity by a paraprofessional with a student the paraprofessional knew was enrolled at the same school. We disagree.

Decided February 14, 2013

Jackie G. Patterson, for appellant.

Peter J. Skandalakis, District Attorney, Lee F. Tittsworth, Assistant District Attorney, for appellee.

Gary D. Bergman, amicus curiae.

“Although under Wood v. State,]* *** ] courts must generally refrain from expanding the scope of penal statutes by implication, we believe that holding that the indictment in the instant case sufficiently alleges that [Hart] was a [teacher] is not a judicial expansion of the term ‘[teacher]’beyond its ordinary, logical, and common meaning.” Accordingly, this argument has no merit.

Judgment affirmed.

Andrews, P. J., and Boggs, J., concur.

       (Punctuation omitted.) Frix v. State, 298 Ga. App. 538, 539 (680 SE2d 582) (2009).

       (Punctuation omitted.) Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013).

        Belvin v. State, 221 Ga. App. 114, 115 (470 SE2d 497) (1996).

       Hart relies on the fact that the Georgia Education Code separately classifies “teachers” and “paraprofessionals.” See OCGA § 20-2-204 (a) (1) (defining “paraprofessional” as “a person who may have less than professional-level certification, who relates in role and function to a professional and does a portion of the professional’s job or tasks under the supervision of the professional, and whose decision-making authority is limited and regulated by the professional. Such a paraprofessional shall possess the minimum of a high school diploma or a general educational development (GED) diploma.”); OCGA § 20-2-1000 (a) (defining “educator” as “any principal, school administrator, teacher, guidance counselor, paraprofessional, school bus driver, volunteer assisting teachers in the classroom, tribunal members, or certificated professional personnel”). We find this argument unpersuasive. Title 20 governs the creation and regulation of Georgia’s public system, and the fact that it classifies teachers and paraprofessionals separately does not require reversal in this case. The Legislature elected not to define the term teacher in OCGA § 16-6-5.1 (b), and as a result, we conclude that it intended the term in that Code section to encompass teaching generally.

       219 Ga. 509, 513 (134 SE2d 8) (1963).

       See Belvin, 221 Ga. App. at 115.


author: Dillard, Judge.

text:
    A12A2011.
    A12A2012.
    GARCIA v. THE STATE. CALDERON v. THE STATE.
    (738 SE2d 333)
   Dillard, Judge.

Following a jury trial, Ramiro Garcia was convicted on one count of trafficking in cocaine, one count of making an improper lane change, and one count of driving without a license. The same jury convicted his co-defendant, Jose Calderon, on one count of trafficking in cocaine, one count of trafficking in methamphetamine, and one count of possession of cocaine. Both defendants appeal their convictions and the denial of their respective motions for new trial, arguing that the evidence was insufficient to support their drug-related convictions. In addition, Garcia contends that the trial court erred in denying his motion to sever his trial from that of his co-defendant, and Calderon argues that the trial court erred in allowing the State to present similar-transaction evidence and denying his ineffective-assistance-of-counsel claim. Because the charges arose from the same set of facts and the defendants were jointly tried, we have consolidated their separate appeals for review. And for the reasons set forth infra, we affirm in both cases.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on October 2, 2009, an agent with the U. S. Department of Homeland Security Immigration and Customs Enforcement (“ICE”) received information from a confidential informant that drug-trafficking operations were being conducted out of a Mexican restaurant in the Forest Park area of Clayton County and a nearby residence located at 498 Sirocco Court. Based on this information, the very next day, drug-task-force officers with ICE and the Clayton County Police Department set up surveillance teams to monitor activity at both locations. Around 1:00 p.m., officers observed a white pickup truck approach and park in front of the 498 Sirocco Court residence. Subsequently, the driver and sole occupant of the truck— ultimately identified as Ramiro Garcia—entered the house and exited 15 minutes later, carrying a white plastic grocery bag that appeared to contain a large square object. Garcia then drove away from the house, at which point one of the task-force officers followed him and radioed for a uniformed patrol officer to do the same.

Several minutes later, as Garcia was traveling northbound on Interstate 75, the patrol officer saw him abruptly change lanes without signaling. Consequently, the officer initiated a traffic stop, during which he determined that Garcia did not have a valid driver’s license and, thus, arrested him. Following Garcia’s arrest, the officer conducted an inventory search of Garcia’s truck so that the vehicle could be removed from the Interstate and impounded. And while searching the truck’s center console, the officer discovered a white plastic bag, which contained a brick of cocaine weighing over one kilogram.

Based on these circumstances, drug-task-force officers obtained a warrant to search the house at 498 Sirocco Court. But before doing so, they arrested the resident of the home—identified as Jose Calderon—outside of the Mexican restaurant that was also under surveillance, after determining that Calderon had become aware that he was being followed. And just as the officers approached the residence to execute the warrant, they observed an unknown male— later identified as Ariolla Camareno—attempting to break into the house and, thus, arrested him. Thereafter, the officers began their search, during which they discovered large quantities of both cellophane-wrapped cocaine and bagged methamphetamine hidden in the kitchen pantry and in a utility room located in the garage. In addition to the drugs, the officers found digital scales, a laptop computer, and a large amount of cash. The officers also noticed that it appeared that someone lived in the house and, in fact, during the search, the owner of the home arrived to collect a rent check and confirmed that Calderon lived there as his tenant.

Two days after the initial search of the Sirocco Court residence, the drug-task-force officers received another tip from the confidential informant, indicating that the house contained more drugs that the officers had failed to discover. Consequently, the officers obtained a second search warrant, which they executed on October 6, 2009. Specifically, the officers searched an inoperable automobile, which was parked in the house’s garage, and found secret compartments in the vehicle containing a large amount of methamphetamine. During this second search of the home, the officers also found a photograph of Calderon, as well as numerous receipts and the title to a vehicle, all of which bore Calderon’s name.

Calderon and Garcia were jointly indicted on one count of trafficking in cocaine. In the same indictment, Calderon was also charged with one count each of trafficking in methamphetamine, possession of cocaine, and possession of marijuana. Garcia was also charged with one count each of improper lane change and driving without a license. Prior to trial, the State filed a notice of intent to present Calderon’s 2004 trafficking-in-methamphetamine conviction as similar-transaction evidence against him. And following a pre-trial hearing, the trial court ruled that this evidence was admissible.

The case then proceeded to trial. After a jury was chosen, Garcia reiterated a request to sever his trial from that of Calderon, which he had apparently first made at calendar call a week or so earlier. After hearing argument on the issue, the trial court denied Garcia’s motion on the grounds that it was untimely and lacked merit. Subsequently, the State presented its case, which included testimony from several of the drug-task-force officers concerning their surveillance and searches of Garcia’s truck and Calderon’s house. In addition, the owner of Calderon’s house testified that he leased the residence to Calderon and that Calderon lived there. A GBI forensic chemist also testified that the total amount of cocaine recovered from Garcia’s truck and Calderon’s home weighed over 10 kilograms and had an average purity of 48 percent. The chemist further testified that the total amount of methamphetamine recovered from the house weighed over 8.5 kilograms. Finally, the State presented the similar-transaction evidence against Calderon, which consisted of testimony that in 2003, he was arrested for trafficking in methamphetamine, while using the alias Jesus Alvarez, and pleaded guilty to that charge in 2004. A comparison of fingerprints showed that Calderon and Alvarez were, indeed, the same person.

At the trial’s conclusion, the jury found Garcia and Calderon guilty on all counts. Thereafter, both defendants obtained new counsel and filed separate motions for new trial, which in Calderon’s case included a claim of ineffective assistance. The trial court denied defendants’ motions, and these appeals follow.

1. Garcia contends that the evidence was insufficient to support his conviction of trafficking in cocaine. And similarly, Calderon contends that the evidence was insufficient to support his convictions of trafficking in cocaine, trafficking in methamphetamine, and possession of cocaine. We disagree in both cases.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. Furthermore, in evaluating the sufficiency of the evidence, “we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Consequently, the jury’s verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” With these guiding principles in mind, we will now address Garcia and Calderon’s specific challenges to the sufficiency of the evidence.

(a) Garcia contends that the evidence was insufficient to prove that he knowingly possessed the cocaine found in his truck, arguing that others had equal access to the vehicle. We find this argument unavailing.

Georgia law recognizes two kinds of possession, “actual possession and constructive possession.”* Obviously, a person who knowingly has direct physical control over a thing at a given time is “in actual possession of it.” And a person is in constructive possession of an object when “he knowingly has both the power and intention at a given time to exercise dominion over the object.” However, a finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity, and “[e]vidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” Furthermore,

[w]hen determining whether the defendant knowingly had both the power and intention at a given time to exercise control over drugs, the jury may infer the defendant’s power from his or her access to the drugs, while they may look to the surrounding circumstances to determine whether the defendant had the requisite intention.

And as long as there is slight evidence of access, power, and intention to exercise control or dominion over the contraband, “the question of fact regarding constructive possession remains within the domain of the trier of fact.”

Here, as noted supra, drug-task-force officers observed Garcia exit the 498 Sirocco Court house carrying a bag that appeared to contain a brick of cocaine before driving away in his truck. And when officers stopped his vehicle a short time later, they found over a kilogram of cocaine inside a white plastic bag, which was hidden in the truck’s center console. Given that an owner or driver of an automobile, in the absence of any circumstances to the contrary, is “presumed to have possession and control of contraband found in the automobile[,]” the evidence was sufficient to support Garcia’s trafficking-in-cocaine conviction.

Nevertheless, Garcia argues that the evidence of his possession of the cocaine is rendered insufficient because the State failed to disprove that someone other than himself had equal access to his vehicle. But this argument is misguided. Garcia is certainly correct that the equal-access defense is based on the rule that “merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” Here, however, when Garcia arrived at the Sirocco Court residence, when he left the residence, and when he was stopped for the traffic violation, he was the sole occupant of his truck. Indeed, the record is devoid of any evidence that someone other than Garcia had access to his truck. Under these circumstances, the equal-access rule does not apply to rebut the presumption that Garcia possessed his truck’s contents.

(b) Calderon similarly contends that the evidence was insufficient to prove that he knowingly possessed the cocaine and methamphetamine found in his residence, arguing that others had equal access to the house. This contention lacks merit.

As previously noted, the State presented evidence that over 10 kilograms of cocaine and over 8.5 kilograms of methamphetamine were discovered in the house that officers observed Calderon entering and exiting. Additionally, the owner of the home testified that he rented the property to Calderon and observed him living there. Furthermore, during their search of the house, officers found a laptop belonging to Calderon, as well as various receipts and other documents bearing his name. Based on this evidence, the jury could infer that Calderon had constructive possession of both the cocaine and the methamphetamine found in the house.

Similar to Garcia, Calderon also argues that the evidence did not support the jury’s finding that he possessed the drugs because others-—presumably the owner of the house and the attempted burglar Camareno—had equal access. However, Calderon presented no evidence that the owner or Camareno actually had equal access to the home. In fact, the evidence at trial was that Camareno was stopped by police from attempting to break into the residence and that the owner only visited the house to collect the rent check. Furthermore, even if we accepted Calderon’s speculative argument that the owner or Camareno had access to the house, “while the fact that others had equal access to the drugs may inculpate them, such evidence does not automatically exculpate [Calderon] .” Instead, the question of whether the evidence that others had access to the contraband was sufficient to rebut the evidence that Calderon was in possession of the drugs was one properly reserved for the jury. Accordingly, the evidence was sufficient for the jury to find Calderon guilty beyond a reasonable doubt.

2. Garcia also contends that the trial court erred in denying his motion to sever his trial from that of his co-defendant. We disagree.

It is well established that the decision whether to grant or deny a motion to sever is “within the discretion of the trial court.” Moreover,

[i]n exercising its discretion the trial court should consider the following three factors: (1) whether the number of defendants will create confusion of the law and evidence applicable to each defendant; (2) whether there is a danger that evidence admissible against one defendant will be considered against another despite cautionary instructions to the contrary; and, (3) whether the defenses of the co-defendants are antagonistic to each other.

Furthermore, the burden is on the defendant requesting the severance to do more than “raise the possibility that a separate trial would give him a better chance of acquittal.” Rather, to prevail on a motion to sever, the defendant “must make a clear showing of prejudice and a consequent denial of due process.”

In the case sub judice, as the trial court noted, Garcia’s motion to sever was untimely, given that he did not raise the issue until shortly before his trial began. But even if Garcia’s motion had been timely, he has not shown that he was prejudiced by being tried jointly with Calderon. First, the number of defendants (two) was small enough so that the danger of confusion was minimal, especially in light of the fact that Garcia and Calderon’s offenses were committed as part of the same crime scheme, i.e., trafficking. In addition, both Garcia and Calderon simply denied being knowingly in possession of the illegal drugs, and therefore, their defenses were not antagonistic to one another. And while the better practice, perhaps, would have been for the trial court to instruct the jury that the similar-transaction evidence was being offered specifically as to Calderon and not to Garcia, the court’s failure to do so was of no consequence. Indeed, the State expended considerable effort proving that Calderon was the same person who committed the 2003 trafficking offense, including demonstrating that his fingerprints were identical to those of the alias Calderon used at that time. As such, the notion that Garcia was somehow prejudiced by an evidentiary showing made by the State against Calderon strains credulity and can in no sense be considered to have prejudiced Garcia’s defense. Thus, the trial court did not abuse its discretion in denying Garcia’s motion to sever.

3. Calderon also contends that the trial court erred in admitting his 2004 trafficking-in-methamphetamine conviction as similar-transaction evidence, arguing specifically that the prejudicial effect of that evidence outweighed its probative value. Once again, we disagree.

In considering this enumeration of error, we begin by noting that when reviewing the trial court’s factual findings regarding whether the state satisfied the three-prong test mandated by Williams v. State, “we apply the ‘clearly erroneous’ standard.” And the decision to admit similar-transaction evidence which satisfies the three-prong test is within the trial court’s discretion “and will not be disturbed absent an abuse of that discretion.” Under Williams, to be admissible for the purposes of establishing motive, intent, course of conduct or bent of mind, the State must show “(a) sufficient evidence that the similar transaction occurred and (b) sufficient connection or similarity between the similar transaction and the crime alleged so proof of the former tends to prove the latter.” Importantly, when considering the admissibility of similar-transaction evidence, the proper focus is on “the similarities, not the differences, between the separate crime and the crime in question.”

And here, during a pre-trial hearing, the State presented evidence that Calderon was arrested for trafficking in methamphetamine in 2003, while using the alias Jesus Alvarez, after a large amount of methamphetamine was found in his vehicle and the house in which he was living. Additional evidence indicated that, using the alias Alvarez, Calderon pleaded guilty to that charge in 2004. The State further proffered a fingerprint comparison proving that Calderon and Alvarez were in fact the same person. Based on this evidence, and the fact that the current charges in the instant case also involved trafficking in large amounts of methamphetamine and cocaine, the trial court found that the earlier trafficking conviction was admissible to show Calderon’s course of conduct and bent of mind. Under Georgia law, if a defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, “the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.” Thus, the trial court did not err in admitting the similar-transaction evidence.

4. Finally, Calderon contends that the trial court erred in denying his claim that his trial counsel provided ineffective assistance. Specifically, he argues that his counsel rendered ineffective assistance by making an improper comment during opening statements and then by failing to move for a mistrial after the trial court issued a curative instruction to remedy any potential harm caused by that comment. Again, we disagree.

It is well settled that in order to prevail on his claim of ineffective assistance of counsel, Calderon must show that his trial “counsel’s performance was deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” Additionally, 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. Furthermore, unless clearly erroneous, we will uphold a trial court’s factual determinations with respect to claims of ineffective assistance of counsel; however, a trial court’s legal conclusions in this regard are reviewed de novo.

Turning to Calderon’s specific claims, following his arrest outside of the Mexican restaurant, Calderon moved to suppress a handgun and a large amount of cash that were found as a result of a search of his vehicle. In a consent order, the trial court suppressed the handgun and cash and further ordered that Calderon could not refer to a “lack of money or guns being present” in Calderon’s vehicle at the time of his arrest. However, during his opening statement at trial, Calderon’s counsel apparently stated that “zero” had been found in his client’s vehicle when he was arrested. Immediately after opening statements concluded, the trial court held a bench conference, during which the State argued that Calderon’s counsel’s remarks violated the consent suppression order and opened the door to the admission of the handgun and cash. Calderon’s counsel countered that he did not agree that his remarks violated the consent order, arguing that the order only prohibited him from specifically stating that neither guns nor money were found in Calderon’s car. He further argued that even if his remarks violated the order, he had certainly not done so purposefully.

Following these arguments, the trial court found that the remark by Calderon’s counsel was improper but that it did not open the door to the admission of the handgun or cash. Instead, the court stated that it would issue a curative instruction, to which both parties agreed. Thus, when the jury returned, the court informed them as follows:

There was a mention in the opening statements about a search of Calderon’s vehicle he was in, at a restaurant, on the date of his arrest. And prior to the trial, there was a motion filed about that search and I issued an order saying that details of that search would not be admissible during the course of this trial; neither side can go into it. So, I’ve excluded any evidence about what was or was not found in that car, in that search, on that day; you will not hear anything during the trial and you’re to disregard any reference that was made to it in opening by either one of the attorneys.
Remember what I told you yesterday, what the three things are that constitute evidence; you have not heard any evidence yet. One thing that’s not evidence is what the lawyers say during the trial in opening statements or closing arguments. So, just put that out of your mind and base your decision on the evidence that you hear and not about, on any speculation or any statements made by attorneys.

Calderon now argues that his trial counsel rendered ineffective assistance when he remarked that “zero” was found during the search of his client’s vehicle and that counsel compounded this mistake by failing to request a mistrial after the trial court issued its curative instruction. He further argues that counsel’s mistakes prejudiced him by making the jury aware that evidence had been suppressed. However, there is no evidence in the record indicating that Calderon’s trial counsel ever testified regarding this alleged deficient performance and “without testimony from trial counsel on the reasons for his actions, [those] decisions are presumed to be strategic and thus insufficient to support an ineffective assistance of counsel claim.”

Furthermore, with regard to trial counsel’s failure to move for a mistrial after the court issued its curative instruction to the jury, “[a] conviction will not be reversed if the opening statement was made in good faith, and the trial court instructs the jury that opening statements are not to be considered as evidence during deliberations.” That is precisely what the trial court did here. Therefore, any objection or motion for a mistrial by Calderon’s trial counsel would have lacked merit, and “[t]he failure to pursue a futile objection does not amount to ineffective assistance.” Moreover, even assuming arguendo that his trial counsel performed deficiently, Calderon has failed to show a reasonable probability that the outcome of his trial would have been different given that there was overwhelming evidence that he was guilty of the crimes charged. Accordingly, the trial court did not err in denying Calderon’s claim of ineffective assistance of counsel.

Decided February 14, 2013.

Walker L. Chandler, for appellant.

Tracy Graham-Lauoson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Judgments affirmed.

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

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

        See OCGA § 16-13-31 (a) (1).

        See OCGA § 16-13-31 (e).

        See OCGA § 16-13-30 (a).

        See OCGA § 16-13-30 (j) (1). Prior to the start of trial, the State entered an order of nolle prosequi as to this charge.

        See OCGA § 40-6-48 (1).

        See OCGA § 40-5-20 (a).

        See Powell, 310 Ga. App. at 144.

        Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

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

        Smith v. State, 316 Ga. App. 175, 177 (728 SE2d 808) (2012) (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        Id. at 177-78 (punctuation omitted).

        Id. at 178 (punctuation omitted).

        Id. (punctuation omitted).

        Miller v. State, 298 Ga. App. 792, 793-94 (1) (681 SE2d 225) (2009).

        See Mangum v. State, 308 Ga. App. 84, 87 (1) (706 SE2d 612) (2011) (holding that “in the absence of unrebutted affirmative evidence demanding a finding of equal access, the jury was authorized to convict [defendant] of the drug-possession charges” (punctuation omitted)); Garcia v. State, 293 Ga. App. 422, 426 (2) (667 SE2d 205) (2008) (same).

        Smith, 316 Ga. App. at 177 (punctuation omitted).

        See Garcia, 293 Ga. App. at 426 (2) (holding that the equal-access rule does not apply when the defendant was the driver and sole occupant of his vehicle in which the contraband was found, and defendant presented no evidence that others had access).

        See Lott v. State, 303 Ga. App. 775, 779 (1) (694 SE2d 698) (2010) (holding that defendants had constructive possession of drugs found in house, even though neither owned or rented the residence, based upon other evidence that both were living there); Castillo v. State, 288 Ga. App. 828, 830 (655 SE2d 695) (2007) (holding that evidence showed that defendant had possession of drugs, given that she identified the residence as her apartment and that police recovered a bill for satellite television services to the apartment in her name).

        Lott, 303 Ga. App. at 780 (1) (punctuation omitted).

        Id.

        See id.; Castillo, 288 Ga. App. at 830.

        Daniels v. State, 306 Ga. App. 577, 584 (5) (703 SE2d 41) (2010) (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        See OCGA § 17-7-110 (“All pretrial motions . . . shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court.”).

        Lankford, v. State, 295 Ga. App. 590, 592 (1) (672 SE2d 534) (2009) (holding that trial court did not err in denying defendant’s motion to sever when number of defendants was sufficiently small so as to minimize the danger of confusion).

        Jones v. State, 318 Ga. App. 26, 36 (5) (733 SE2d 72) (2012) (holding that defendants’ defenses were not antagonistic to one another when both completely denied participating in shooting).

        See, e.g., White v. State, 315 Ga. App. 54, 62 (7) (726 SE2d 548) (2012).

        Cf. Butler v. State, 292 Ga. 400, 407 (3) (a) (738 SE2d 74) (2013) (noting that “comments upon the patently obvious generally pose little, if any, danger of prejudice”).

       261 Ga. 640 (409 SE2d 649) (1991).

        Reed v. State, 291 Ga. 10, 14 (3) (727 SE2d 112) (2012) (punctuation omitted).

        Id. (punctuation omitted).

        Gresham v. State, 303 Ga. App. 682, 685 (2) (695 SE2d 73) (2010) (punctuation omitted); see Williams, 261 Ga. at 642 (2) (b).

        Gresham, 303 Ga. App. at 685 (2) (punctuation omitted).

        Sherrer v. State, 289 Ga. App. 156, 158 (1) (a) (656 SE2d 258) (2008) (punctuation omitted).

        See Watt v. State, 317 Ga. App. 551, 556-57 (3) (a), (b) (732 SE2d 96) (2012) (holding that prior trafficking-in-marijuana conviction was sufficiently similar to trafficking-in-marijuana charge in instant case and was, therefore, admissible to show defendant’s bent of mind); Celestin v. State, 296 Ga. App. 727, 736 (4) (675 SE2d 480) (2009) (holding that prior trafficking-in-cocaine conviction was sufficiently similar to current trafficking-in-cocaine charge and, thus, was admissible to show defendant’s bent of mind); Sherrer, 289 Ga. App. at 158 (1) (a) (holding that defendant’s arrest for possession of methamphetamine with intent to distribute was admissible to show defendant’s bent of mind in instant trafficking case).

        Chapman v. State, 273 Ga. 348, 349-50 (2) (541 SE2d 634) (2001); see Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).

        Chapman, 273 Ga. at 350 (2); see Strickland, 466 U. S. at 689 (III) (A) (“[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. . . .”).

        Henderson v. State, 303 Ga. App. 898, 898 (1) (695 SE2d 334) (2010).

       Neither parties’ opening statements were transcribed, but during the ensuing bench conference, Calderon’s counsel did not dispute the State’s characterization of his remarks.

        Bright v. State, 292 Ga. 273, 275 (2) (a) (736 SE2d 380) (2013) (punctuation omitted).

        Simmons v. State, 291 Ga. 705, 709 (6) (733 SE2d 280) (2012) (punctuation omitted).

        Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008); see Head v. State, 288 Ga. App. 205, 208 (2) (653 SE2d 540) (2007) (holding that counsel’s failure to request a mistrial did not constitute ineffective assistance because it affirmatively appeared from the record that the trial court in its discretion would have denied the request). We further note that if Calderon’s trial counsel had objected to the court’s instruction, he would have been attempting to profit from his own earlier error. And “[o]ne cannot complain of a result he procured or aided in causing, and induced error is not an appropriate basis for claiming prejudice.” Borders v. State, 285 Ga. App. 337, 340 (2) (646 SE2d 319) (2007) (punctuation omitted).

        See Lowe v. State, 310 Ga. App. 242, 245 (2) (b) (712 SE2d 633) (2011) (holding that defendant failed to show that he was prejudiced by trial counsel’s alleged deficient performance in light of the fact that there was overwhelming evidence that defendant possessed the cocaine found in the house he rented).


text:
    A12A2475.
    ESTRADA v. THE STATE.
    (738 SE2d 344)
   DOYLE, Presiding Judge.

Rodolfo Estrada appeals from the denial of his motion for new trial following his conviction by a jury of aggravated sodomy,* aggravated child molestation, and first degree cruelty to children. He contends that the trial court erred by (1) admitting child hearsay testimony from the victim, (2) admitting his confession, (3) admitting testimony about the results of a DNA test, and (4) refusing to charge the jury on the mandatory sentence he faced. For the reasons that follow, we affirm.

Construed in favor of the verdict, the record shows that six-year-old D. F. and her mother were temporarily living with Estrada, his wife, and their family. One night, Estrada’s wife awoke to strange sounds coming from the foot of their bed, where D. F. slept on an air mattress. She saw Estrada look up from D. F.’s mattress and asked him what he was doing. Estrada responded, “It ain’t what you think,” the wife angrily confronted him, and Estrada eventually left the house. The wife asked D. F. what happened, and she said that Estrada had touched her private parts. Shortly thereafter, D. F. disclosed to another family member that Estrada had licked her vagina and touched her anus. Estrada’s wife called the police, and D. F. again disclosed to an officer that Estrada had touched her rear and groin area. D. F. was taken to see a sexual assault nurse examiner, who collected samples from the affected areas, and D. F. later described the abuse to a forensic interviewer. The forensic samples were determined to contain male DNA, but no specific profile could be developed.

Estrada was arrested and charged with six counts based on the abuse, and a jury found him guilty of aggravated sodomy, aggravated child molestation, and cruelty to children. The trial court denied his motion for new trial, and this appeal followed.

1. Estrada contends that the trial court erred by admitting hearsay statements made by the victim. We disagree.

Under OCGA § 24-3-16, hearsay statements by underage victims of sexual abuse are “admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.”

The trial court has broad discretion in determining the admissibility of child hearsay evidence, and we will reverse a trial court’s ruling on the admissibility of statements under OCGA § 24-3-16 only if the trial court abused its discretion. . . . When determining whether an out-of-court statement has sufficient indicia of reliability, a court may consider the following factors, without limitation: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child. These factors, however, are not to be mechanically applied but considered in a manner best calculated to facilitate the determination of the required degree of trustworthiness. Moreover, even if all factors do not indicate reliability, the trial court does not necessarily abuse its discretion in admitting the statement.

Here, the trial court held a pre-trial evidentiary hearing which included testimony from each witness who reported outcries from the victim. D. F. was six years old at the time of the outcries, and the outcries to an officer and family member were readily made at home on the night of the abuse. The forensic interview was done by a trained interviewer in a nonthreatening environment. There was no evidence of threats or promises made to D. F, nor of any intoxication or any general incredibility of D. F.’s statements, which were essentially consistent at each telling. Estrada points to some evidence of later recantation as evidence of coaching, but that alone does not require reversal in light of the other evidence supporting the trial court’s findings. Further, D. F.

testified as a witness at trial and was subject to cross-examination, thus allowing [Estrada] every opportunity to cross-examine her before the jury regarding the circumstances surrounding [her outcries], and giving the jury the opportunity to judge her demeanor and credibility during [those statements]. . . . This circumstance provided an additional safeguard to [Estrada’s] right of fair trial and provided him full opportunity for confrontation.

Accordingly, we discern no abuse of discretion by the trial court.

2. Estrada next contends that the trial court erred by finding that his custodial statement was freely and voluntarily made. We disagree.

Under former OCGA § 24-3-50,* “[t]o make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” “The standard for determining whether or not a confession was voluntary is the preponderance of the evidence standard. The trial court’s decision on this point will not be disturbed on appeal unless there is obvious error.”

Prior to trial, the trial court held a Jackson-Denno hearing at which Estrada described the circumstances of a confession he made to police after he was arrested. Estrada testified that he felt “trapped” and “threatened,” and that he merely told the interviewing investigator what he thought she wanted to hear. The credibility of this testimony was for the trial court, and the record, which contains a videotape of his confession, demonstrates that Estrada was adequately informed of his Miranda rights; that he waived them and had at least twice expressed a desire to tell his story to the investigator; that he was not threatened or made promises by his unarmed interviewer; and that he was not restrained during the interview, which was not unduly lengthy. Based on the record before us, we discern no error in admitting the confession.

3. Estrada next challenges the trial court’s admission of testimony from a forensic expert that the swab samples taken from the victim contained male DNA. Estrada argues that under Bullcoming v. New Mexico, the analyst’s testimony violated his Sixth Amendment right to confrontation because the witness at trial was not the same person who performed the testing on the sample. Bullcoming disallowed surrogate testimony by a scientist who did not sign a lab certification or perform or observe the testing. Here, by contrast, the witness was a supervisor personally familiar with the techniques performed, and he testified that the sample was assigned to an analyst personally supervised by the witness. The analyst, who was still employed at the lab but unable to testify due to a scheduling conflict, had documented each step of the process, which was reviewed by the supervisor to determine if all the procedures were performed correctly and whether the supervisor agreed with the outcome of the analysis. Based on this review, the supervisor testified (and was subject to cross-examination) as to his opinion of the data and results. Under these facts, reversal is not required.

Decided February 14, 2013.

Kathleen J. Anderson, for appellant.

J. Bradley Smith, District Attorney, Samuel E. Skelton, Assistant District Attorney, for appellee.

4. Finally, Estrada contends that the trial court erred by refusing to charge the jury on the mandatory sentence he faced if convicted. “It is improper [, however,] for the court to give any instruction to the jury concerning possible sentences in a felony case before the jury has determined the question of guilt or innocence.” Therefore, this enumeration presents no basis for reversal.

Judgment affirmed.

Andrews, P. J., and Boggs, J., concur.

       OCGA § 16-6-2 (a) (2).

       OCGA § 16-6-4 (c).

       OCGA § 16-5-70 (b).

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

       The jury acquitted Estrada on three other counts predicated on penetrating D. F. and forcing D. F. to touch him.

       Because the trial was held prior to January 1, 2013, we look to the version of the statute applicable at that time. See Ga. L. 2011, p. 214, § 101. The new Evidence Code, applicable to any motion made or hearing or trial commenced on or after January 1, 2013, addresses child hearsay at OCGA § 24-8-820 (2012).

       (Punctuation and footnotes omitted.) Anderson v. State, 315 Ga. App. 679, 682-683 (2) (727 SE2d 504) (2012), citing Brown v. State, 300 Ga. App. 359, 361 (2) (685 SE2d 377) (2009), and Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991).

       See, e.g., Anderson, 315 Ga. App. at 683-684 (2).

       (Punctuation omitted.) Id. at 684 (2).

       See id.; Barclay v. State, 306 Ga. App. 766, 767 (1) (702 SE2d 907) (2010) (weighing Gregg factors is not mechanical and is subject to the trial court’s discretion).

       Compare OCGA § 24-8-824 (2012).

       (Punctuation omitted.) Boone v. State, 293 Ga. App. 654, 657 (3) (667 SE2d 880) (2008).

       See Parker v. State, 274 Ga. App. 347, 352 (7) (617 SE2d 625) (2005).

       See High v. State, 271 Ga. App. 388, 390-391 (2) (609 SE2d 722) (2005).

       _U. S._(131 SC 2705, 180 LE2d 610) (2011).

       See id. at_(131 SC at 2710).

       See Leger v. State, 291 Ga. 584, 592 (5) (732 SE2d 53) (2012), citing Disharoon v. State, 291 Ga. 45 (727 SE2d 465) (2012).

       (Punctuation omitted.) Quintana-Camporredondo v. State, 275 Ga. App. 859, 861 (2) (622 SE2d 66) (2005).


author: Boggs, Judge.

text:
    A12A1811.
    A12A2236.
    MOORE v. THE STATE. PHILLIPS v. THE STATE.
    (738 SE2d 348)
   Boggs, Judge.

These cases were consolidated for purposes of appeal. Justin Moore and his wife Jessica Phillips were jointly tried for crimes against Phillips’ daughter (Moore’s stepdaughter). Following the denial of their separate amended motions for new trial, Moore and Phillips each appeal, enumerating several errors. Having reviewed the record, we find their claims to be without merit and affirm in both cases.

Construed in the light most favorable to the verdict, the evidence showed that at around noon, the victim, K. M., then nearly six years old, appeared at a neighbor’s home, about a block away from her home, wearing only panties and sandals. The neighbor, who spoke Spanish and only a little English, brought K. M. into her home and immediately called her daughter so that K. M. could speak with her. K. M. told the neighbor’s daughter that “her father was going to kill her. And she said that she wanted to stay with my mom, and that she will learn Spanish.” After talking to K. M. on the phone, the neighbor’s daughter called police. The neighbor explained that she went to open the door to see if someone was outside looking for K. M., but K. M. “did not want me to open that door. She didn’t want me to. She was frightened.”

When the police arrived, K. M. told an officer that “she had ran to where we were at the time, because she had peed her bed, and that her parents were going to beat her and kill her because she had peed the bed.”

A second officer testified that K. M. told her “she had peed the bed, and she knew she was going to get a whipping, so she ran out of the house when she had the opportunity. She said she crossed the street, went behind a set of duplexes and started knocking on back doors.” K. M. told this second officer that her “mom and dad” beat her with coat hangers, extension cords, and a belt. The officer looked under K. M.’s clothing and observed “linear marks, or looping marks” on K. M.’s chest, right side, lower back, buttocks, legs, and groin area. The officer explained that K. M. identified Phillips and Moore as her “mom and dad,” and that “[s]he used their first and last names.” K. M. was then taken into protective custody.

A child protective services investigator testified that she spoke with K. M. at her home on the same day and that K. M. showed her an extension cord and said “this is the extension cord that my daddy beat me with.” The investigator noticed scarring on K. M.’s “legs, back, abdomen, and vagina area. The scars were in — it looked sort of like a loop. And they were found all over her body. Some of them were lighter in coloration, and some of them were darker in coloration.” Pictures of K. M.’s injuries were introduced into evidence.

In a second interview, K. M. told the investigator that “her daddy . . . beat her with an extension cord, a belt, a hanger and his hand. And she also mentioned that her mother, Jessica Phillips, beat

her with a belt and her hand____She said that she thought her daddy

was about to beat her raw.” K. M. told the investigator that Moore “beat her so hard with two hangers that she pooped her panties,” and that she also “got whipped” for falling asleep in the corner and wetting the bed.

A pediatric nurse practitioner testified that she performed a physical examination of K. M. five days after she was taken into protective custody. She explained that K. M. had both linear and curvilinear marks on her chest and abdomen, a large bruise on her lower back, a mark on her buttocks, and extensive marks on her thighs “too numerous to count.” The nurse practitioner stated further that the scars “showed different degrees of healing,” were not made at the same time, and were made with different objects under different amounts of force. She explained that the marks she observed on K. M. were typically made by cords and belts. When asked if K. M.’s scars could have been made more than a year earlier, the nurse • practitioner stated: “It’s possible, but I don’t — think it’s probable.”

The second officer at the scene of the neighbor’s home interviewed K. M. over a month later. In the interview, played for the jury at trial, K. M. explained that Moore “whipped [her] with an extension cord, belt, hangers, and that’s all,” but that her mother, Phillips, would “whip [her] with a belt.” K. M. also told her that Moore “would take dog leashes and tie her arms behind her back, and her ankles or around her legs, and hang her [upside down] from the bedroom door” and whip her. K. M. pointed to her bruises during the interview and explained that in one location “my skin was off. It was all teared off right here. Then it healed up.”

K. M., eight years old at the time of trial, testified that she ran to the “Spanish lady’s house for help” because Moore was hitting her with hangers, belts, and leashes. She stated further that Phillips hit her with belts and that on one occasion Moore tied her up with leashes, tied her to a door, and “whipped” her with hangers, belts and extension cords.

Moore and Phillips were charged with cruelty to children in the first degree for causing K. M. “cruel and excessive physical pain by beating” her. Moore was also charged with two counts of child molestation and one count of aggravated child molestation. The jury found both Moore and Phillips guilty of cruelty to children, but acquitted Moore on the three molestation counts.

Case No. A12A1811

1. Moore contends that the circumstantial evidence failed to exclude the reasonable hypothesis that K. M.’s biological father “perpetrated the physical abuse.” While Phillips told officers that the marks on K. M. were inflicted by K. M.’s biological father, K. M. told officers and an investigator, and testified at trial, that Moore hit her with hangers, belts, and leashes, and that he tied her to a door and beat her. She testified further that Moore beat her the day she ran to the neighbor’s home. This was direct evidence sufficient to sustain Moore’s conviction for cruelty to children in the first degree. See Chambers v. State, 313 Ga. App. 39, 40 (1) (720 SE2d 358) (2011); see also OCGA § 16-5-70 (b).

2. Moore argues that the State failed to prove venue beyond a reasonable doubt. In general, criminal actions should be tried in the county where the crime occurred. OCGA § 17-2-2 (a). “We have held that venue is a jurisdictional fact and an essential element that the State must prove beyond a reasonable doubt for every crime. The State may use both direct and circumstantial evidence to prove venue.” (Citations omitted.) Lanham v. State, 291 Ga. 625, 626 (2) (732 SE2d 72) (2012).

The evidence showed that K. M. lived with Phillips and Moore at the family’s residence which was located in Cobb County. There was evidence that Moore tied K. M. up, tied her to her bedroom door at the home and “whipped” her. K. M. also testified that Moore had hit her at the family’s home on the day she ran to her neighbor’s home. Viewing the evidence as a whole, we conclude that the State met its burden of proving beyond a reasonable doubt that venue was properly in Cobb County. See Sherrell v. State, 317 Ga. App. 571, 574 (1) (731 SE2d 790) (2012); Glover v. State, 292 Ga. App. 22, 25 (2) (663 SE2d 772) (2008) (venue established where evidence showed that victim lived with defendant in Cobb County and that defendant gave victim whippings on a daily basis).

3. Moore complains that the trial judge violated OCGA § 17-8-57 by intimating his opinion about the credibility of K. M. and Moore’s guilt when he called K. M. “honey” in front of the jury. He argues that this act “could have no other effect than [to] engender [ ] sympathy for [K. M.] and making her appear, in the eyes of the trial court, to be a victim of Mr. Moore.”

OCGA § 17-8-57 provides: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” During her testimony, the trial court instructed K. M.: “Hey, Honey, will you put the microphone —• or just talk a little closer to the microphone, okay? We just need to make sure we can hear you.” Defense counsel did not object or move for a mistrial. “Consequently, a new trial would be warranted ‘only if the trial court’s comments seriously affected the fairness, integrity, and public reputation of these judicial proceedings.’ ” (Citations omitted.) Kohler v. State, 300 Ga. App. 692, 698 (4) (686 SE2d 328) (2009).

Moore cites Craft v. State, 274 Ga. App. 410 (618 SE2d 104) (2005) (physical precedent only) and Callaham v. State, 305 Ga. App. 626 (700 SE2d 624) (2010) to support his argument here, but these cases are distinguishable. In Craft, the trial court posed specific questions to a witness concerning the character and grade point average of the victims. Supra, 274 Ga. App. at 411-412 (1). And in Callaham, a neighbor identified the defendant as the person who shot the victim. Supra, 305 Ga. App. at 627 (1). While the defendant was on the stand to testify in his own defense, the trial court asked the defendant: “do you know why the neighbor that lives across the street would come in here and say you’re the one that shot? He’s not related to anybody.” Id. We held that the trial court’s question and comment intimated that the neighbor’s testimony was believable because he was an independent witness unrelated to any of the parties. Id. at 628 (1).

Here, the trial court’s use of the word “honey” to address eight-year-old K. M. was not an opinion of her credibility like in Craft and Callaham. The comment did not seriously affect the fairness, integrity, and public reputation of the judicial proceedings, and was therefore not a violation of OCGA § 17-8-57. See, e.g., Johnson v. State, 272 Ga. App. 385, 386-387 (3) (612 SE2d 518) (2005) (trial judge calling victim “sugar” did not seriously affect the fairness or integrity of the proceedings);Kent v. State, 294 Ga. App. 134, 138-139 (2) (668 SE2d 442) (2008) (trial court’s statement to victim with the mental age of a ten-year-old, that he did a “great job” following his testimony did not seriously affect the fairness, integrity or public reputation of proceedings).

4. Moore contends that the trial court erred in denying his motion for a mistrial made on the ground that a State’s witness improperly commented on his right to remain silent. A “motion for mistrial is committed to the discretion of the trial court, and ordinarily, the denial of such a motion amounts to an abuse of discretion only when it is apparent that a mistrial is essential to the preservation of the right to a fair trial.” (Citations and punctuation omitted.) Sears v. State, 292 Ga. 64, 67 (3) (734 SE2d 345) (2012).

The officer who first arrived at the neighbor’s home testified to the course of events after he arrived on the scene. He explained that when he went to K. M.’s home to speak with her mother and Moore, “[a detective] . . . went inside the townhome to speak with [Moore]. And as I recall, he didn’t — he didn’t want to answer any questions.” Trial counsel objected, and out of the presence of the jury moved for a mistrial arguing that the officer improperly commented on Moore’s right to remain silent. Defense counsel argued further that a curative instruction would only “re-ring[ ] the bell, creating] an even larger problem in this situation.” The trial court denied the motion for mistrial finding that the officer’s statement was unintentional. Prior to the return of the jury, the trial court instructed the officer to refrain from making any statements concerning Moore’s right to remain silent. When the jury returned, the trial court instructed it to “disregard the last statement of the police officer.”

It is true enough that “testimony commenting upon the silence of the accused is, generally speaking, ‘far more prejudicial than probative.’ But the improper admission of prejudicial testimony does not always require a mistrial.” (Citations omitted.) Sears, supra, 292 Ga. at 68 (3).

[TJestimony about the defendant remaining silent is not deemed to be prejudicial if it is made during a narrative on the part of the authorities of a course of events and apparently was not intended to, nor did it have the effect of, being probative on the guilt or innocence of the defendant. Indeed, to warrant a reversal of a defendant’s conviction, the evidence of the election to remain silent must point directly at the substance of the defendant’s defense or otherwise substantially prejudice the defendant in the eyes of the jury.

(Citations and punctuation omitted.) Whitaker v. State, 283 Ga. 521, 524 (3) (661 SE2d 557) (2008). This is exactly the circumstance presented here. The officer’s statements were made during a narrative of the course of events and “ ‘did not strike at or point directly at the substance of defendant’s defense.’ ” (Citation and punctuation omitted.) Berryhill v. State, 285 Ga. 198, 203 (5) (674 SE2d 920) (2009); see also Whitaker, supra; Williamson v. State, 315 Ga. App. 421, 427 (2) (727 SE2d 211) (2012). Moreover, the trial court instructed the jury to disregard the comments. Berryhill, supra; Williamson, supra. Under these circumstances we find no abuse of the trial court’s discretion in denying the motion for mistrial. Id.

Case No. A12A2236

5. Phillips argues that the trial court erred in denying her motion to sever her trial from that of Moore.

Since the grant or denial of a motion to sever is left in the discretion of the trial court, its ruling will only be reversed for an abuse of discretion. . . . Factors the trial court should consider in exercising its discretion include: (1) whether the number of defendants creates confusion of the evidence and law applicable to each defendant; (2) whether a danger exists that evidence admissible against one defendant will be considered against the other, despite cautionary instructions; and (3) whether the defenses are antagonistic.

(Citations and punctuation omitted.) Holland v. State, 310 Ga. App. 623, 624 (1) (714 SE2d 126) (2011). “The burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.” (Citations and footnote omitted.) Character v. State, 285 Ga. 112, 118 (5) (674 SE2d 280) (2009).

Phillips argues that the law applicable to Moore’s charges of aggravated child molestation and child molestation was not applicable to the single charge against her of child cruelty, and would likely cause confusion in the eyes of the jury. She argues further that the evidence against Moore would likely be considered against her, including the evidence that Moore hung K. M. to a door while he beat her. Finally, Phillips contends that she and Moore had antagonistic defenses as they were the only two adults living with K. M. when the injuries were likely inflicted.

But “[tjhere was no danger of confusion because of the number of defendants, there being only two.” Kelley v. State, 248 Ga. 133, 135 (3) (281 SE2d 589) (1981). And their defenses were not antagonistic. See Rivers v. State, 178 Ga. App. 310, 311 (2) (342 SE2d 781) (1986). Both Phillips and Moore denied abusing K. M. and Phillips claimed that K. M.’s injuries were inflicted by K. M.’s biological father. See, e.g., Wicks v. State, 278 Ga. 550, 551 (3) (604 SE2d 768) (2004) (defenses not antagonistic where defendant and co-defendant denied participation in crimes). The fact that Moore was charged with additional crimes did not require severance. Griffin v. State, 292 Ga. 321, 325 (7) (737 SE2d 682) (2013) (that co-defendant was charged with additional crimes in joint trial did not require severance in absence of showing jury was confused). The trial court properly charged the jury: “conviction of one Defendant does not necessarily require conviction of another. You, the jury, must determine the guilt or innocence of each Defendant separately.” The court then recited each of the charges against Phillips and Moore individually. Because Phillips has failed to show that she suffered prejudice by the joint trial, we cannot say that the trial court abused its discretion in denying her motion to sever.

6. Phillips contends that the trial court erred in failing to inquire as to the competency of K. M. She argues that because K. M. was under the age of 14, the court should have sua sponte made a determination as to her competency to ensure that she sufficiently understood the nature of the oath. Former OCGA § 24-9-5, effective during Phillips’ trial, provided:

(a) Except as provided in subsection (b) of this Code section, persons who do not have the use of reason, such as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, shall be incompetent witnesses.
(b) Notwithstanding the provisions of subsection (a) of this Code section, in all cases involving deprivation as defined by Code Section 15-11-2, or 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.

(Emphasis supplied.) Therefore, as a child victim of a crime, K. M. is excepted from a competency challenge based upon a claim that she does not sufficiently understand the nature of the oath. See Clemons v. State, 288 Ga. 445, 446 (2) (704 SE2d 762) (2011); Jeffries v. State, 272 Ga. 510, 513 (6) (530 SE2d 714) (2000).

7. Phillips asserts that the trial court erred in allowing a witness to testify over her trial counsel’s objection. During trial, the State called a victim-witness advocate to impeach K. M.’s testimony that differed from statements K. M. made prior to trial concerning whether Moore molested her. Phillips contends that it was improper for the trial court to allow this witness to testify because she was not on the State’s witness list and was not sequestered. But even if the trial court erred in allowing this witness to testify, Phillips has failed to show any harm. The testimony given by the witness concerned K. M.’s prior statement about whether Moore had sexually abused her. As this testimony was unrelated to the charge against Phillips (and Moore was acquitted of the child molestation charges), Phillips has failed to show harm from any error in allowing this witness to testify. See, e.g., Wakily v. State, 225 Ga. App. 56, 59 (4) (483 SE2d 313) (1997) (whether victim knew defendant’s companion had no bearing on whether defendant was involved in crimes charged, so any error in impeachment techniques was harmless).

8. Phillips claims that she was denied effective assistance of counsel.

To prevail on a claim of ineffective assistance of counsel, Appellant must show both that his trial attorney’s performance was deficient and that the deficient performance was prejudicial to his defense. However, this Court is not required to address both components if the defendant has made an insufficient showing on one.

(Citations and punctuation omitted.) Whitaker v. State, 291 Ga. 139, 141 (2) (728 SE2d 209) (2012). And “[i]n reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Green v. State, 291 Ga. 287, 296 (10) (728 SE2d 668) (2012).

(a) Phillips contends that trial counsel “failed to address the likely possibility that Phillips suffers from [b]aftered [w]omen’s [sjyndrome.” But Phillips’ counsel explained at the hearing on the motion for new trial that he did not believe battered woman syndrome applied in this case because there was no indication by Phillips or her psychological evaluation that Moore abused her. “The decision not to pursue a defense is one of trial strategy with which we will not generally interfere. Trial strategy and tactics do not equate with ineffective assistance of counsel.” (Citation and punctuation omitted.) Smith v. State, 231 Ga. App. 677, 684 (6) (499 SE2d 663) (1998) (trial counsel in reasoned judgment determined assertion of battered woman syndrome defense was unrealistic). Because Phillips has failed to show that counsel performed deficiently, her claim of ineffectiveness fails on this ground.

(b) Phillips argues that counsel failed to obtain an independent medical expert to “establish the method used to create K. M.’s scars and establish their longevity.” When asked about his decision not to obtain an expert, trial counsel stated:

[T]he State’s expert couldn’t identify the time periods with any certainty as to when these injuries were — supposedly had happened. So I thought we didn’t need to have an expert — [Tjhere was no doubt that there was [sic] injuries. The photographs were terrible in this case. So I thought that basically with the State being unable to identify time periods, I thought that was in our best interest.

Again, trial tactics and strategy do not equate with ineffective assistance. Smith, supra. Trial counsel made a strategic decision not to obtain an expert in the face of the State’s difficulty in identifying the time periods in which K. M. suffered scars. Moreover, Phillips failed to produce such an expert at the hearing on the motion for new trial. “As this Court has held repeatedly, absent a proffer of what the testimony of his expert would have been at trial, [Phillips] cannot show that there is a reasonable probability that the outcome of the trial would have been different had [her] counsel taken the suggested course.” (Citation, punctuation and footnote omitted.) Mora v. State, 295 Ga. App. 641, 648 (3) (d) (673 SE2d 23) (2009); see also Sarratt v. State, 299 Ga. App. 568, 570 (2) (a) (683 SE2d 10) (2009). Phillips has therefore failed to establish prejudice. See Mora, supra.

(c) Phillips contends that trial counsel should have objected to the verdict form because the charge against her was “sandwiched between two of [Moore’s] charges.” The form listed the child cruelty charge against Moore, then the child cruelty charge against Phillips, followed by the molestation charges against Moore. Trial counsel testified at the hearing on the motion for new trial that he did not object to the form of the verdict because he

thought this was pretty clearly written. I mean, no doubt about it. [Phillips] couldn’t be confused to be involved in Count Two. And [the jury] had to make a specific finding as to Count One. And I believe the Judge just gave a charge to make sure that the jury said to consider the evidence against one versus the other. I believe I requested that. So I thought this was adequate.

The decision not to obj ect was therefore strategic and does not provide a basis for a claim of ineffectiveness. See, e.g., Robison v. State, 277 Ga. App. 133, 138 (3) (625 SE2d 533) (2006). Moreover, the trial court instructed the jury regarding the separate counts of the verdict form. Under these circumstances, Phillips has failed to make any showing that had counsel objected to the verdict form, there is a reasonable likelihood that the outcome of the trial would have been different. See Wilcox v. State, 297 Ga. App. 201, 205-207 (3) (677 SE2d 142) (2009) (defendant failed to demonstrate verdict form would mislead jurors).

(d) Phillips asserts that trial counsel failed to file a special demurrer to establish the date of the crime as a material allegation of the indictment. While trial counsel explained that he did not recall whether he had filed a demurrer in the case, he explained that “[in] my understanding of the law, it could be anything within the statute of limitation, the time period.” The indictment alleges that Phillips “on or about the 2nd day of October, 2008,” caused cruel and excessive pain to K. M. by beating her.

Where the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitations, as long as the defendant is not surprised or prejudiced by presentation of evidence that the offenses occurred at a time substantially different from that alleged in the indictment.

(Citation, punctuation and footnote omitted.) Clarke v. State, 317 Ga. App. 471, 476 (2) (731 SE2d 100) (2012); see Coats v. State, 303 Ga. App. 818, 820 (1) (695 SE2d 285) (2010). The exact date was not a material allegation of the indictment here. The evidence here showed that K. M. was beaten by Moore on October 2, 2008 and that Phillips beat her with belts on other occasions. The evidence showed further that K. M.’s scars were a year old or less. The State therefore proved that child cruelty occurred within the statute of limitation. See OCGA §§ 16-5-70 (e) (1), 17-3-1 (c) (seven-year limitation period for felony where victim is under the age of eighteen); see also Clarke, supra. And Phillips has failed to show that she was surprised or prejudiced by presentation of evidence that the offenses occurred at a time substantially different from that alleged in the indictment. See Clarke, supra. “Further, as we have previously noted, because a defendant can be re-indicted after the grant of a special demurrer, a failure to file such a demurrer generally will not support a finding of ineffective assistance of counsel.” (Citations and punctuation omitted.) Lewis v. State, 304 Ga. App. 831, 837 (5) (698 SE2d 365) (2010). Phillips has therefore failed to show that the outcome would have been different had counsel filed a special demurrer. Clarke, supra, 317 Ga. App. at 477 (2).

(e) Phillips argues that counsel was ineffective in failing to object to the testimony of a State’s witness regarding injuries sustained by K. M. “outside of the temporal scope of the indictment.” The nurse practitioner testified that the most recent marks on K. M. were probably made “within the last couple of months,” and that the older scars “could have been [made] several months prior.” Trial counsel was not questioned concerning why he made no objection to this witness’ testimony. And in the absence of trial counsel’s testimony, “we cannot assume that counsel’s actions did not fall within the wide range of reasonable professional assistance that is presumed by Strickland [v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)].” Jackson v. State, 288 Ga. App. 432, 434 (1) (a) (654 SE2d 232) (2007). Moreover, for the reasons explained above in Division 8 (d), this testimony was not improper as it was evidence that the crime was committed within the applicable statute of limitation. Phillips has therefore failed to establish that counsel’s performance was deficient.

Decided February 15, 2013.

Benjamin D. Goldberg, for appellant (case no. A12A1811).

CynthiaL. Bower, Justin J. Wyatt, for appellant (case no. A12A2236).

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

Phillips has failed to establish on each ground alleged either that her counsel was deficient or that any such deficient performance prejudiced her defense. The trial court therefore did not err in rejecting her claim of ineffective assistance of trial counsel.

Judgments affirmed.

Doyle, P. J., and Andrews, P. J., concur.

       These charges stemmed from K. M.’s statement to a forensic interviewer that Moore put his penis “next to her private,” that he touched her private, and that he “peed in her mouth and ear.”

       There was evidence presented by Phillips that K. M.’s injuries had been inflicted by her biological father, who was also named Justin, and who was incarcerated in Arizona at the time of the event giving rise to the charges here.

       We note that the trial court explained to K. M. that it was important for her to tell the truth, and K. M. responded affirmatively when the court asked if she understood “what the truth is[.]”

       To the extent that Phillips argues that K. M. did not have the use of reason, she has pointed to nothing in the record to indicate that K. M. was incompetent on that basis.