text:
    A12A0877.
    HAYWARD v. THE KROGER COMPANY.
    (733 SE2d 7)
   Andrews, Judge.

On appeal from the trial court’s grant of summary judgment to The Kroger Company in this rainy-day slip-and-fall case, plaintiff Frances Hayward argues that the trial court erred in its handling of witness affidavits when it denied her motion to compel production of a videotape and photographs of the accident scene, and when it concluded that no question of material fact remained on the merits of her claim. We find no error and affirm.

On appeal from a grant of a motion for summary judgment, we review the evidence de novo, viewing it in the light most favorable to the nonmovant, to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998).

So viewed, the record shows that at approximately 1:00 p.m. on a Sunday following several days of rain, including that morning, Frances Hayward walked through a first set of double doors at the entrance to a Kroger supermarket in Stone Mountain. Hayward, who was 78 years old and wearing high-heeled demi-boots, noticed that the foyer between the first and the second sets of double doors was damp. As she walked toward the second set of doors, she slipped and fell, suffering injury.

Kroger’s wet floor policy, which store manager Stella Rodriguez knew of and was responsible for implementing, included the following general directives as to spills and wet floors: (1) “Never leave the area unattended and verbally warn those nearby of the hazard”; (2) “Block off the area if no other associate is around” (emphasis omitted); (3) “Place caution signs around the perimeter of the wet area so they are visible from all directions to warn every customer”; and, as applicable to inclement weather, the further directives: (4) Place rugs “at all entrance doors and other appropriate front-end areas”; (5) “Keep a mop and bucket at the front end and aggressively clean up excess water”; and (6) “Swap out wet rugs with dry rugs as necessary.” Rodriguez testified that because it had been raining for days, it was wet everywhere outside resulting in tracked-in water and that, in accordance with Kroger policy, she had placed caution signs just outside the first set of doors and at least one sign just outside the second set of doors. Although Hayward testified that she did not see any mats or caution signs upon entering the store, photographs taken at the scene show Hayward’s lower body lying on a mat as well as caution signs placed in front of both sets of doors.

Rodriguez testified that she had replaced the usual entranceway mats with a longer produce mat laid lengthwise between the sets of doors. Rodriguez also testified that she had replaced the produce mat between the two sets of doors with a dry one at one point during the morning and had mopped the floor periodically. And while Rodriguez testified that only one other person was helping her monitor the front entrance on that day, her assistant manager, Deborah Klein, filed an affidavit in which she stated that she had assisted Rodriguez in placing entranceway mats in and outside the front entrance, that they had replaced a long produce mat “at least once” before Hayward fell, and that she, Rodriguez, and another employee had mopped the front entrance “as often as every ten to fifteen minutes because of customer traffic and the wet shopping carts moving in and outside the store.”

1. Hayward first argues that the trial court abused its discretion when it (a) denied her motion to strike Klein’s affidavit, and (b) granted Kroger’s motion to strike the affidavits of her expert witness, Rosanne Masone, concerning Kroger’s safety procedures. We disagree.

We review a trial court’s decision on a motion to strike only for an abuse of discretion. See CNL APF Partners v. Dept. of Transp., 307 Ga. App. 511, 513 (2) (705 SE2d 862) (2010).

(a) The record shows that Kroger identified assistant manager Klein as a potential witness in the course of discovery and before manager Rodriguez’s deposition. The fact that Kroger filed Klein’s affidavit after both Rodriguez’s deposition and the filing of expert witness Masone’s affidavits does not authorize a conclusion that the trial court abused its discretion when it concluded that Kroger properly identified Klein “in response to all applicable discovery requests.” See CNL APF Partners, supra at 513 (2) (affirming denial of motion to strike).

(b) Hayward tendered the Masone affidavits as an expert in risk management for grocery stores generally, which Hayward argues is a “profession shrouded in the mystery of professional skill and knowledge.” See Fordham v. State, 254 Ga. 59, 60 (4) (325 SE2d 755) (1985); OCGA § 24-9-67.1 (a), (b) (setting out criteria for admission of expert testimony). On the contrary, and as the trial court held, Masone’s testimony was not necessary on the question of whether Kroger’s procedures were adequate to meet the common problem of accumulated rainwater at the entrance to a store during rainy weather. Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 45 (1) (322 SE2d 304) (1985); see also Bailey v. Annistown Road Baptist Church, 301 Ga. App. 677, 689-690 (12) (689 SE2d 62) (2009) (that rainwater soaks into the earth and can erode soil did not require expert testimony). Moreover, the affidavits as conclusory and unsupported by factual evidence were insufficient to avoid summary judgment. “Nothing in Daubert [v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (113 SC 2786, 125 LE2d 469) (1993)] or [OCGA] § 24-9-67.1 ‘requires a trial court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.’ ” (Citation and punctuation omitted.) HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 644 (1) (697 SE2d 770) (2010). Accordingly, there was no abuse of discretion in the trial court’s grant of Kroger’s motion to strike these affidavits as more prejudicial than probative.

2. Hayward argues that the trial court abused its discretion when it denied the portion of her motion to compel concerning a videotape and original photographs of the scene. We disagree.

“The trial court’s discretion in dealing with discovery matters is very broad, and this court has stated on numerous occasions that it will not interfere with the exercise of that discretion absent a clear abuse.” (Citation and punctuation omitted.) Reeder v. Gen. Motors Acceptance Corp., 235 Ga. App. 617, 620 (3) (510 SE2d 337) (1998).

The record shows that Hayward filed a motion to compel answers to four of her interrogatories and five of her requests for production, including videotapes of the store entrance on the date of the accident. The motion to compel did not seek review of Kroger’s response to Hayward’s request for photographs, however. The record also shows that although Kroger could not locate the originals of the photographs, it had produced at least two copies of them before Hayward brought her motion to compel. The trial court granted the motion only as to two interrogatories and a request concerning incident reports. Kroger complied with the court’s order, and Hayward did not take any further action concerning these discovery requests.

(a) Hayward never sought to compel any response to its request for photographs. Because no issue concerning them was presented to the trial court for its ruling, we have nothing to review on appeal. Arreola-Soto v. State of Ga., 314 Ga. App. 165, 168 (2) (723 SE2d 482) (2012).

(b) Further, according to store manager Rodriguez, no videotape camera recorded the incident itself, and produced photographs showed a mat and caution cones at the scene. In light of these facts, we cannot say that the trial court abused its discretion when it denied Hayward’s motion to compel production of any videotape depicting the store foyer before or after the accident. Reeder, supra, 235 Ga. App. at 620 (3) (noting absence of evidence that order granting plaintiff’s motion to compel was incorrect “or that the trial court abused its discretion in denying the motion”).

3. Hayward contends that a question of fact remains concerning Kroger’s superior knowledge of the water hazard on which she fell. We disagree.

(a) As a preliminary matter, we note that Hayward contradicted herself on the question of whether she knew the entrance floor was wet before she fell. When asked whether “[b]efore you fell did you see anything on the floor?”, she replied, “The floor was wet. ... It had rained. People walking from my side — it had stopped raining, but the floor was still wet, you know, like damp.” After a break in the deposition, however, Hayward revised her testimony to state that she did not realize the floor was wet until after she fell, when she noticed that her “coat was soaking wet on the floor.”

The rule of self-contradictory testimony, discussed in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) [(1986)] is a rule for construing testimony separate from those rules allocating burdens of proof at trial and on motion for summary judgment. Whether such testimony is contradictory, and whether a reasonable explanation has been offered is a question of law.

(Citations and punctuation omitted.) Hallberg v. Flat Creek Animal Clinic, 225 Ga. App. 212, 214 (1) (483 SE2d 671) (1997). Here, Hayward offered no satisfactory explanation for her change in testimony; instead, she repeated her earlier answer that “it had been raining.” We therefore apply the Prophecy rule against Hayward and discount her later testimony to the effect that she did not know that the floor was wet as she entered the store. Sunlink Health Systems v. Pettigrew, 286 Ga. App. 339, 341 (649 SE2d 532) (2007); see also Hallberg, supra, 225 Ga. App. at 214-215 (1) (rejecting plaintiffs attempt to correct deposition testimony that she was “not quite sure” how her fall occurred).

(b) As the Supreme Court of Georgia has held,

in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiffs evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.

Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997). Moreover, as our Supreme Court has recently reiterated, there can be no recovery in a premises liability case without evidence tending to show that the owner/occupier has “superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property.” (Emphasis supplied.) The Landings Assn. v. Williams, 291 Ga. 397, 399 (728 SE2d 577) (2012).

It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. One who is familiar with the premises cannot rely for recovery upon the negligence of the defendant in failing to correct a patent defect where such party had equal means with the defendant of discovering it or equal knowledge of its existence.

(Citations and punctuation omitted; emphasis supplied.) Id. More specifically, and as this Court has held in the wake of Robinson, “[s]tore proprietors are not liable to patrons who slip and fall on floors made wet by rain conditions unless there has been an unusual accumulation of water and the proprietor has failed to follow reasonable inspection and cleaning procedures.” (Emphasis supplied.) Walker v. Sears Roebuck & Co., 278 Ga. App. 677, 680 (2) (629 SE2d 561) (2006).

Pretermitting whether Kroger was negligent in failing to follow its rainy day procedures satisfactorily, there is nothing in the evidence to suggest that there was an “unusual” accumulation of water at the particular spot where Hayward fell notwithstanding the rains which preceded it. Rodriguez’s testimony stating that water had been tracked into the store by customers and shopping buggies due to rainwater as “everywhere” outside cannot reasonably be taken as putting this matter in issue. Moreover, construing her original deposition testimony as we must under Prophecy, the floor was not more than damp at the time Hayward fell, a fact of which she was then aware. Consequently, no jury question arises regarding the issues of equal knowledge and accumulated water as unusual. As we have often held: “The risk of harm imposed by some accumulation of water on the floor of business premises during rainy days is not unusual or unreasonable in itself, but is one to which all who go out on a rainy day may be exposed and which all may expect or anticipate.” (Citations and punctuation omitted.) Walker, supra, 278 Ga. App. at 680 (2). And, even were there no admission here, in rainy day slip-and-fall cases plaintiffs “are charged with equal knowledge that water is apt to be found in any area frequented by people coming in from the rain outside.” (Citation and punctuation omitted.) Emory Univ. v. Smith, 260 Ga. App. 900, 902, n. 5 (581 SE2d 405) (2003).

Given the foregoing, Hayward cannot show that Kroger had superior knowledge of a wet condition at the entrance of its store exposing Hayward to an unreasonable risk of harm, and the trial court did not err when it granted summary judgment to Kroger. Walker, supra, 278 Ga. App. at 680 (2); Emory Univ., supra, 260 Ga. App. at 902, n. 5; compare Edwards v. Ingles Market, 234 Ga. App. 66, 67 (1) (506 SE2d 205) (1998) (reversing grant of summary judgment where “defendant hut not plaintiff knew that the puddle in which plaintiff slipped had formed prior to plaintiff’s fall”) (punctuation omitted).

Judgment affirmed.

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

Decided October 4, 2012.

Catherine G. McCauley, for appellant.

Douglas A. Wilde, Catherine C. Sender, for appellee.


source: Caselaw Access Project

author: Miller, Presiding Judge.

license: Public Domain

text:
    A12A1083.
    SMITH v. THE STATE.
    (732 SE2d 840)
   Miller, Presiding Judge.

Following a jury trial, Melissa Dale Smith was convicted of two counts of forgery in the first degree (OCGA § 16-9-1 (a) (2009)). Smith filed a motion for new trial, which the trial court denied. On appeal, Smith contends that (1) the evidence was insufficient to sustain her convictions; (2) the trial judge improperly commented on the evidence; and (3) she received ineffective assistance of counsel.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Citation and punctuation omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

So viewed, the evidence shows that Smith and her co-defendant, Misty Allen, had known each other for approximately nine years prior to the forgery incidents at issue in this case. As explained in more detail below, Smith and Allen were involved in a scheme whereby Smith provided Allen with identification and arranged for her to cash stolen checks at a Wal-Mart store where Smith was employed as a customer service manager.

During trial, a bookkeeper for a printing and advertising company called Dixie Graphics testified that she had prepared a check made payable to Dixie Graphic’s vendor, The Library Bindery Company. The bookkeeper placed the check in an envelope and put the envelope in her mailbox to go out for delivery. When the vendor contacted her about not receiving payment, she went online to view an image of the cashed check and discovered the inclusion of “c/o Darlene Lecroy” on the payee line along with “The Library Bindery Co.” The bookkeeper had not included nor authorized the inclusion of “do Darlene Lecroy” as a payee on the check. The bookkeeper did not know anyone by the name of Darlene Lecroy. The bookkeeper’s husband, who was a police officer, testified that several checks had been stolen from their mailbox, including the one made payable to The Library Bindery Company.

In May 2009, Allen went to the Wal-Mart store where Smith worked in order to cash a check from the account of Dixie Graphics and made payable to “The National Library Bindery Co. do Darlene Lecroy” in the amount of $1,662.75. Allen showed identification in the name of Darlene Lecroy. Allen had obtained Lecroy’s identification card from Smith, who had retrieved it from the Wal-Mart lost and found department. The customer service associate at the service desk questioned the check, as it was against Wal-Mart policy to cash a multiple-party check. Upon Allen’s indication that Smith would approve the check, however, the customer service associate sought out Smith. Smith provided her approval, and the customer service associate proceeded to cash the check. At trial, Smith admitted that she gave her approval to cash the multiple-party check despite it being against Wal-Mart policy. Smith and Allen later split evenly the proceeds of the check.

In approximately June 2009, Allen stole a checkbook from her stepfather and gave it to Smith. Allen subsequently met Smith in the Wal-Mart parking lot, where Smith gave Allen one of her stepfather’s stolen checks. The check had already been signed and made payable to “Darlene Lecroy” in the amount of $1,500. Smith told Allen to come back into the store and cash the check. After giving Smith “time to get situated inside,” Allen went into the’ Wal-Mart store to the service desk and asked for Smith. According to Allen, Smith gave her approval to the customer service associate, who then proceeded to cash the check. Allen was prompted to enter an identification number on a keypad at the service desk. Allen entered an identification number that had been previously given to her by Smith. Smith and Allen again split evenly the proceeds of the check.

Allen’s stepfather identified the above check as a true and correct copy of one that had been stolen from him, but stated that he had not signed it nor authorized anyone to write the check on his account. He further testified that he did not know a Darlene Lecroy and would have no reason to write her a check.

1. Smith contends that the evidence was insufficient to sustain her convictions. We disagree. After viewing the evidence in the light most favorable to the prosecution, the relevant question on appeal is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

A person commits the offense of forgery in the first degree when with intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.

(Punctuation omitted.) OCGA § 16-9-1 (a) (2009).

Based upon the testimony of Allen, along with Allen’s stepfather, the Wal-Mart customer service associate, the Dixie Graphics bookkeeper and her husband, Brooks, and Smith herself, the jury was entitled to conclude that Smith was guilty of forgery in the first degree as alleged in both counts of the indictment.

Smith nevertheless contends that there was insufficient evidence to convict her on the count of forgery that was based upon the $1,500 check from the account of Allen’s stepfather. Smith argues that there was a failure of proof because the indictment improperly identified the check number as the bank routing number. To the extent Smith is arguing a fatal variance between the allegation in the indictment and the proof at trial, Smith’s contention fails.

The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.

(Citation and punctuation omitted.) McBride v. State, 202 Ga. App. 556, 557 (415 SE2d 13) (1992). Here, the indictment sufficiently informed Smith that a check from the account of Allen’s stepfather was the writing upon which that count of forgery was based. And as set forth above, the combined testimony of Allen, her stepfather, and the customer service associate sufficiently identified the forged check from the account of Allen’s stepfather. Furthermore, given that the indictment was broad enough to encompass an act of forgery involving any check from the account of Allen’s stepfather, there is no danger that Smith could be prosecuted again for the same offense. Thus, “[t]he language of the indictment was sufficient to put [Smith] on notice as to the essential elements of the charged offense so as not to be taken by surprise, and [Smith] could not be prosecuted again for these offenses.” (Citation and punctuation omitted.) Id. at 558.

Therefore, we reject any fatal variance claim and hold the evidence was sufficient to satisfy the standard set forth in Jackson v. Virginia.

2. Smith next contends that the trial judge improperly commented on the evidence. We disagree.

“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.” OCGA § 17-8-57.

[H] owever, a trial court may propound questions to a witness to develop the truth of the case, to clarify testimony, to comment on pertinent evidentiary rules and to exercise its discretion when controlling the conduct of counsel or witnesses in order to enforce its duty to ensure a fair trial to both sides.

(Citation and punctuation omitted.) Chambers v. State, 313 Ga. App. 39, 41 (2) (720 SE2d 358) (2011)

Here, Smith raises issue with the below-emphasized comments by the trial judge, made during the testimony of the customer service associate who cashed Allen’s checks:

[Prosecution]: So when you cashed these two checks that you say were approved by Ms. Smith —
[Defense Counsel]: Objection, Your Honor. That was not the testimony.
The Court: I think it’s only the one [that] was directly approved by Ms. Smith.
[Defense Counsel]: Correct, Your Honor.
The Court: [T]he first one.

After reviewing the trial transcript, we conclude that the trial judge’s comments did not amount to an improper expression of opinion with regard to Smith’s guilt or innocence or to what had or had not been proven. Significantly, a “trial judge may state his recollection as to some portion of the testimony without prejudice to the defendant.” (Citation omitted.) Blackburn v. State, 131 Ga. App. 678, 680 (6) (206 SE2d 723) (1974). Here, the trial judge’s comments were meant to clarify the prior testimony of the customer service associate — that Smith had given her direct approval to cash only the first, multiple-party check — only after defense counsel objected to the State’s mischaracterization of the customer service associate’s previous testimony. Accordingly, the trial judge’s comments in this case did not violate OCGA § 17-8-57.

3. Smith maintains that her trial counsel was ineffective because he failed to object to the trial judge’s comments, impermissible bad character evidence, and the admission of photocopied checks rather than originals.

To establish ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), a criminal defendant bears the burden of showing “that counsel’s performance was deficient and that the deficient performance so prejudiced defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” (Citations omitted.) Johnson v. State, 287 Ga. 767, 769 (2) (700 SE2d 346) (2010). However, a court addressing the ineffective assistance issue is not required “to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, supra, 466 U. S. at 697 (IV). “In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. “The trial court’s determination with respect to effective assistance of counsel will be affirmed unless its findings are clearly erroneous.” (Citation omitted.) Johnson, supra, 287 Ga. at 769 (2).

(a) Smith’s contention that her trial counsel was ineffective for failing to object to allegedly improper comments by the trial judge is without merit. As discussed in Division 2 above, the trial judge’s comments did not amount to a violation of OCGA § 17-8-57. Thus, there would have been no merit to trial counsel’s objection, and failure to raise a nonmeritorious objection does not constitute ineffective assistance of counsel. Cf. Jones v. State, 279 Ga. 854, 856 (2) (a) (622 SE2d 1) (2005).

Decided October 4, 2012.

Edward P. Dettmar, for appellant.

(b) Smith also contends that her trial counsel was ineffective for failing to object to bad character evidence in the form of witness testimony regarding Smith’s drug use. Specifically, Allen testified several times that she and Smith would use the money from the checks to buy “dope,” and that she and Smith hung out together only when they were getting high. Another witness, Allen’s girlfriend, also testified that Smith was using drugs.

At the hearing on the motion for new trial, trial counsel testified that he did not object because he did not find the witnesses credible. Cf. Ford v. State, 290 Ga. 45, 49 (5) (c) (717 SE2d 464) (2011) (“At the hearing on the motion for new trial, defense counsel testified she did not object because she did not find the witness to be credible and hoped that the witness’s testimony would show the jurors he was not credible.”). “Assuming that the testimony placed [Smith’s] character in issue, the decision not to object to such testimony is a matter of trial tactics, and, as a general rule, matters of reasonable trial tactics do not amount to ineffective assistance of counsel.” (Citations and punctuation omitted.) Id.

(c) Finally, Smith contends that trial counsel was ineffective for failing to assert a best evidence objection to the photocopied checks admitted into evidence. Pretermitting whether a best evidence objection had merit, Smith’s ineffective assistance claim on this ground fails because she cannot show prejudice. See Mayberry v. State, 301 Ga. App. 503, 509 (4) (c) (687 SE2d 893) (2009). Smith did not show that if trial counsel had made such an objection that the State could not have introduced the original writings or satisfactorily accounted for their absence. See id.; Garrett v. State, 285 Ga. App. 282, 287 (5) (c) (645 SE2d 718) (2007). “[Smith] has failed to demonstrate [to] a reasonable probability that, but for counsel’s failure to assert a best evidence rule objection, the trial’s result would have been different.” (Citation and punctuation omitted.) Garrett, supra, 285 Ga. App. at 287 (5) (c); accord Mayberry, supra, 301 Ga. App. at 510 (4) (c). Accordingly, the jury verdict will stand.

Judgment affirmed.

Ray and Branch, JJ., concur.

Leigh E. Patterson, District Attorney, NataleeL. Staats, Assistant District Attorney, for appellee.

       This statute was substantially amended by Ga. L. 2012, p. 899, § 3-5, which did not go into effect until July 1, 2012, after the offenses occurred in this case. Thus, this case is considered under the prior version of the statute. See Ga. L. 2012, p. 899, § 9-1 (a).

       At the time of Smith’s trial, Allen had already pled guilty to the charges brought against her in this case.

       According to the customer service associate, however, she cashed this second check without Smith’s direct approval. She testified that because Smith had previously given her approval to cash Allen’s multiple-party check, she assumed that Smith would have again provided her approval to cash the second $1,500 check.

       Appearing on the back of the check was a driver’s license number belonging to a Shelby Brooks. Brooks was the ex-wife of Smith’s husband and had had a contentious relationship with Smith for 13 years. According to a witness, Smith had plans to “get back at” Brooks. About one month prior to the forgery incident, Brooks had returned an item to Wal-Mart and had been required to provide her driver’s license number. Brooks testified that Smith was at the service counter during the return and witnessed the entire transaction.

       Although defense counsel failed to object to the trial judge’s comment, such failure did not waive the issue on appeal. See State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010). In the context of OCGA § 17-8-57, the issue on appeal is simply whether there was a violation of the statute. See id.


author: Barnes, Presiding Judge.

text:
    A12A1615.
    ANTHONY v. THE STATE.
    (732 SE2d 845)
   Barnes, Presiding Judge.

A Coweta County jury found Jesse Louis Anthony guilty of criminal attempt to commit burglary, and the trial court denied his motion for new trial. On appeal, Anthony challenges the sufficiency of the evidence to convict him. He also contends that the trial court erred by not permitting his mother to testify that he suffered from a mental infirmity, and by failing to charge the jury on the lesser included offense of criminal trespass. Additionally, Anthony argues that his trial counsel rendered ineffective assistance. For the reasons set forth below, we affirm.

Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict. Hayes v. State, 276 Ga. App. 268, 269 (1) (623 SE2d 144) (2005). So viewed, the evidence showed that aroundnoon on January 22, 2010, a neighbor driving home from work saw an unfamiliar man, later identified as Anthony, emerge from between two houses down the street from where the neighbor lived in Coweta County. The neighbor then saw Anthony go onto the front porch of the victim’s house. No one appeared to be home at the residence, which recently had been sold to the victim. Atable saw and other tools left inside the house by contractors could be seen from outside. According to the neighbor, at some point there had been a “for sale” sign outside of the victim’s house, but he was not sure whether it was still there on January 22.

Once on the front porch of the victim’s house, Anthony tried to open the front door without first ringing the doorbell or knocking on the door. After unsuccessfully trying to open the front door, Anthony went over to a window on the porch, turned facing the street, placed his fingers in a crack between the bottom of the window and the window frame, and tried to lift the window.

The neighbor, who had watched Anthony try to open the door and window, drove up to the victim’s house and yelled out to Anthony, “What the ‘bleep’ are you doing?” Anthony responded by running down the street. The neighbor got out of his car, chased Anthony, and tackled him. Another neighbor dialed 911, and the police arrived shortly thereafter.

Anthony was arrested and taken to the sheriff’s department, where he agreed to an interview with the investigator after being advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). The investigator noticed that Anthony smelled strongly of alcohol. Anthony claimed that his family was being evicted from its residence, that he had been at the victim’s house because he was looking for a place for him and his mother to live, and that he had done nothing more than look through a window and knock on the front door.

Anthony was indicted for criminal attempt to commit burglary in that he attempted to enter the victim’s house to commit a theft. At the jury trial, the neighbor who witnessed what had transpired and who had tackled Anthony testified to the events as set out above. He further testified that Anthony never said anything to him about trying to find a place to live and never claimed to him that the incident had been a misunderstanding. The neighbor said that, instead, Anthony had threatened him by claiming that he would have someone come and “take care” of the neighbor in retaliation for chasing and subduing him.

In addition to the neighbor, the police investigator testified about his interview of Anthony at the sheriff’s department after he had been arrested. A video recording of the interview was introduced into evidence and played for the jury.

The victim whose house Anthony had attempted to enter also testified. According to the victim, he had recently purchased the house, and he and his wife were still in the process of moving their belongings into the house from out of state when the incident occurred. The victim testified that he had been splitting his time between his home out of state and his new home in Coweta County, and he slept in the house on an air mattress on the nights when he was there. He also noted that contractors had left construction equipment in the house. The victim had never seen Anthony previously and had never given him permission to enter his house, and he denied that the house still had a “for rent” or “for sale” sign outside on the day of the incident.

Anthony elected not to testify at trial, but he presented the testimony of his mother and stepfather to support the defense theory that he had simply been looking for a house for him and his family to rent or buy. His mother and stepfather testified that at the time of the incident, the family had been in the process of being evicted from their home and had been looking for a new place to live for several months. However, Anthony’s mother conceded on cross-examination that the family had in fact closed on a new house on the same day that the incident occurred, and that Anthony had been made aware of the closing the previous night.

To show that Anthony lacked the requisite criminal intent, the defense wanted his mother also to testify that Anthony suffered from a mental infirmity. But Anthony had chosen not to raise an insanity defense, as the State pointed out to the trial court in opposing the introduction of witness testimony about his mental condition. The trial court ruled in favor of the State and prohibited the mother from testifying that Anthony possessed a mental infirmity.

After hearing all of the’ testimony and reviewing the video recording of the police interview, the jury convicted Anthony of the charged offense. Anthony moved for a new trial, contending, among other things, that his trial counsel had been ineffective. After conducting an evidentiary hearing, the trial court denied Anthony’s motion. This appeal followed.

1. Anthony challenges the sufficiency of the evidence, contending that there was insufficient circumstantial evidence that he intended to commit a theft in the victim’s house. He argues that the evidence supported a reasonable hypothesis that he was simply at the property to look it over as a possible place to live. He notes in his brief that he did not have a bag or burglary tools with him on the day in question, that his mother and stepfather provided testimony confirming that the family had been looking for a new place to live, and that there was evidence suggesting that a “for sale” sign may have still been up outside the residence and that the house appeared to be unoccupied at the time.

A person commits the offense of burglary by “entering or remaining in a dwelling house of another or building without authority and with the intent to commit a . . . theft therein.” Hopkins v. State, 309 Ga. App. 298, 300 (1), n. 5 (709 SE2d 873) (2011). See OCGA § 16-7-1 (b). “A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1.

As discussed previously, there was witness testimony at trial that Anthony emerged from between two houses in the neighborhood, attempted to open the front door of the victim’s house and force open a window, and tried to flee upon being seen by the neighbor. Additionally, there was testimony that construction equipment inside the victim’s home could be seen from outside, that there was no “for rent” or “for sale” sign outside the home at the time of the incident, and that Anthony did not have permission to enter the victim’s house. Lastly, there was evidence that Anthony’s family had in fact closed on a new home on the very day of the incident in question, and that Anthony had known that the closing was to occur. This combined evidence was sufficient to authorize a rational jury to find that Anthony had acted with the intent to commit a theft inside the victim’s house and had taken a substantial step toward entering the house for that purpose, and, therefore, to find him guilty beyond a reasonable doubt of criminal attempt to commit burglary. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Rudnitskas v. State, 291 Ga. App. 685, 686-687 (1) (662 SE2d 729) (2008) (witness testimony regarding defendant’s effort to pry open sliding glass door of victim’s house supported conviction for criminal attempt to commit burglary).

While the defense presented a different theory of events and claimed that Anthony did not act with the intent to commit a theft, it was the jury’s province to assess witness credibility, resolve the conflicts in the evidence, and determine whether there was a reasonable hypothesis of innocence favorable to Anthony. See Clarke v. State, 317 Ga. App. 471, 472 (1) (a) (731 SE2d 100) (2012); Biggins v. State, 299 Ga. App. 554, 556 (1) (683 SE2d 96) (2009). “As a general rule the [S]tate must, of necessity, rely on circumstantial evidence in proving intent. And the fact that the defendant may have failed in accomplishing his apparent purpose does not render a finding of criminal attempt to commit burglary improper.” (Citations and punctuation omitted.) Murray v. State, 187 Ga. App. 747 (371 SE2d 272) (1988). See Durham v. State, 295 Ga. App. 734, 736 (673 SE2d 80) (2009) . Accordingly, Anthony cannot succeed on his challenge to the sufficiency of the evidence to support his conviction.

2. Anthony next contends that the trial court erred by prohibiting his mother from testifying that he possessed a mental infirmity, which he contends was relevant to showing that he did not have the requisite criminal intent at the time of the alleged offense. “The . . . exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” (Citation and punctuation omitted.) Hayes, 276 Ga. App. at 270 (2). Under the circumstances of this case, we conclude that no abuse of discretion can be shown by the exclusion of the mother’s testimony.

Anthony declined to pursue a defense of not guilty by reason of insanity, or to contend that he was guilty but mentally ill or guilty but mentally retarded. See OCGA §§ 16-3-2; 16-3-3; 17-7-131 (b). And “mental abnormality, unless it amounts to insanity, is not a defense to a crime.” (Citation and punctuation omitted.) State v. Abernathy, 289 Ga. 603, 607-608 (4) (a) (715 SE2d 48) (2011). See Wallin v. State, 285 Ga. App. 377, 383 (b) (646 SE2d 484) (2007) (noting that “a person is not legally insane simply because he suffers from schizophrenia or a psychosis”) (citation omitted). Given Anthony’s failure to raise an insanity defense or to contend that he was guilty but mentally ill or mentally retarded, the trial court acted within its discretion in concluding that the testimony of Anthony’s mother was irrelevant to the issue of whether Anthony acted with the criminal intent necessary to determine guilt. See Paul v. State, 274 Ga. 601, 603 (2) (555 SE2d 716) (2001); Lewandowski v. State, 267 Ga. 831, 832 (2) (483 SE2d 582) (1997); Selman v. State, 267 Ga. 198, 200 (3) (475 SE2d 892) (1996); McDowell v. State, 269 Ga. App. 475, 476 (1) (604 SE2d 575) (2004). Compare Porter v. State, 243 Ga. App. 498, 503-505 (5), 506-508 (532 SE2d 407) (2000) (expert testimony regarding defendant’s psychological condition was erroneously excluded by trial court, where the evidence was relevant to showing that defendant had no knowledge of the child abuse committed by her husband, an issue which was “very different” from the issue whether the defendant had the criminal intent to harm her son).

3. Anthony also asserts that the trial court erred by not charging the jury on the lesser included offense of criminal trespass. In this regard, he appears to contend in this brief that he was entitled to a jury instruction on the lesser included offense of criminal trespass under OCGA § 16-7-21 (b) (1), which provides that a person commits the offense of criminal trespass when he knowingly and without authority enters upon the land or premises of another for an unlawful purpose.

Because Anthony neither requested this charge nor objected when the trial court failed to give it, we review the failure to give the charge only for plain error. See Alatise v. State, 291 Ga. 428, 429 (2) (728 SE2d 592) (2012); White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012). To prove that the failure to give the charge was plain error, Anthony must show that a four-pronged test has been met: the omission of the charge was erroneous, the error was obvious, the omission of the charge likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings. See White, 291 Ga. at 8 (2); State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011).

Anthony cannot show that the failure to charge the jury on the lesser included offense of criminal trespass was erroneous, and thus cannot show that the first prong has been met for proving plain error. Where the evidence shows either the commission of the offense charged in the indictment, or the commission of no offense at all, the trial court is not required to charge the jury on a lesser included offense. See Sanders v. State, 293 Ga. App. 534, 536 (2) (a) (667 SE2d 396) (2008). Furthermore, a charge on the lesser included offense of criminal trespass is not warranted in a burglary case where the defendant claimed to have been on the premises for a lawful purpose. See Reidling v. State, 309 Ga. App. 719, 720 (2) (710 SE2d 903) (2011); Sanders, 293 Ga. App. at 536 (2) (a); Moore v. State, 280 Ga. App. 894, 898 (6) (c) (635 SE2d 253) (2006).

Anthony claimed in his interview with the investigator that he was at the victim’s property for the lawful purpose of looking it over as a possible place to live. The defense presented the testimony of Anthony’s mother and stepfather in an effort to corroborate his claim, and elicited testimony from the neighbor on cross-examination that the victim’s home may have had a “for sale” sign still outside of it. In contrast, the State presented evidence reflecting that Anthony entered onto the property with the intent to commit theft inside the victim’s home, as discussed in Division 1. There was no evidence that Anthony entered on the property for any other unlawful purpose. Thus, if the jury believed the State’s evidence, Anthony was guilty of criminal attempt to commit burglary, but if the jury accepted Anthony’s defense to that crime, he was guilty of no offense. Under these circumstances, where Anthony was guilty either of criminal attempt to commit burglary or of no crime at all, the trial court committed no error, and thus no plain error, in failing to charge the jury on the lesser included offense of criminal trespass. See White, 291 Ga. at 9 (2) (because defendant failed to show that trial court was required to give the instruction at issue, he could not show plain error).

Decided October 4, 2012.

Bentley C. Adams III, for appellant.

Peter J. Skandalakis, District Attorney, Kevin T. McMurry, Assistant District Attorney, for appellee.

4. In a related enumeration of error, Anthony maintains that his trial counsel was ineffective for failing to request a charge on the lesser included offense of criminal trespass or to object when the trial court failed to give that charge.

To prevail on a claim of ineffective assistance, [Anthony] must show that 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. We need not address both the deficient performance and prejudice prongs of the test if [Anthony] has made an insufficient showing on either prong.

(Citation and punctuation omitted.) Ledford v. State, 313 Ga. App. 389, 393 (4) (721 SE2d 585) (2011). See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Because, as explained in Division 3, Anthony cannot show that a jury charge on the lesser included offense of criminal trespass would have been appropriate, he cannot show that his trial counsel’s performance was deficient. See Jones v. State, 287 Ga. 770, 772 (2) (700 SE2d 350) (2010). Consequently, the trial court did not err in denying Anthony’s motion for a new trial on the ground of ineffective assistance of counsel. See Ledford, 313 Ga. App. at 393 (4).

Judgment affirmed.

Adams and McFadden, JJ., concur.

       Before trial, a physician had evaluated Anthony and determined that he was mentally competent to stand trial.

       Under Georgia law,
      [t]he only two situations authorizing a verdict of not guilty by reason of insanity are where the defendant does not have the ability to distinguish between right and wrong at the time of the crime, OCGA § 16-3-2, and where at the time of the crime the defendant acted under a delusional compulsion which overmastered his will to resist committing the crime, OCGA § 16-3-3.

        Caldwell v. State, 257 Ga. 10, 11 (1) (354 SE2d 124) (1987).

       Unlike in Waldrop v. State, 300 Ga. App. 281, 285 (3) (684 SE2d 417) (2009), and Hiley v. State, 245 Ga. App. 900, 901 (539 SE2d 530) (2000), there was no evidence that Anthony made an unauthorized entry onto the victim’s property simply for the purpose of loitering there.


author: Adams, Judge.

text:
    A12A0912, A12A1286.
    McRAE v. HOGAN et al. (two cases).
    (732 SE2d 853)
   Adams, Judge.

At about 1:00 a.m. on September 23, 2005, Margie McRae, a retired surgeon from California, was pulled over while driving 25 mph in a 35 mph zone on the way to her vacation home on St. Simons Island. She contends she was the target of racial profiling, and in October 2007, she filed suit in the Superior Court of Glynn County against the arresting officer, other officers, the chief of police, and several Glynn County commissioners. As part of an extended and convoluted procedural history, summary judgment was granted in favor of the defendants. McRae, acting pro se, appeals that and other rulings. Additional motions remain pending below.

The record shows that on September 21, 2007, McRae filed a complaint for damages, raising four claims, which, in her own words, are (1) racial profiling; (2) negligent supervision; (3) negligent retention; and (4) harassment. She asserts that Officer Barbara Hartman “profiled and stopped” her based on her race and without reasonable suspicion of wrongdoing; that even though Hartman had determined that McRae had a valid license, she gave McRae a verbal warning for an invalid license; and that she filed a false police report. McRae alleges that the other defendants are liable because they failed to properly supervise Hartman; their response to McRae’s complaint shows bias and “a pattern of lack of objectivity in responding to concerns”; and they “engaged in a course of conduct that has driven plaintiff away from her home on St. Simons Island.” In support she alleged several prior incidents have occurred between her and the various defendants.

After the defendants answered, McRae filed two motions for partial summary judgment. In response, the defendants relied solely on McRae’s testimony and did not introduce evidence of their own; and they objected to the authenticity of documents that they appear to have generated. In April 2008, the judge denied McRae’s motions. On June 12, 2008, the defendants moved for summary judgment, again relying solely on McRae’s testimony, and on July 22, 2008, the court granted summary judgment in their favor on the ground that McRae had failed to respond to the motion. At about the same time, the court granted the defendants’ motion for a protective order regarding McRae’s attempt to notice certain depositions, for the reason that discovery had expired. In response, McRae simultaneously moved to vacate the court’s orders, moved for an extension of discovery and, on August 21, 2008, filed a notice of appeal. Although the reason is unclear, in October 2008, the case was returned to the superior court pending resolution of the motion to vacate summary judgment. The case remained in that posture for three years with no activity in the trial court.

On October 24, 2011, McRae moved to recuse the judge. On November 2, while the motion to recuse was pending, the judge issued an order denying McRae’s motion to vacate the summary judgment order. McRae then moved for reconsideration and for a change in venue, but she also filed a notice of appeal regarding the November 2 order and all prior orders. Thereafter, McRae’s original appeal was finally docketed in this Court as Case No. A12A0912, and her new appeal was docketed as Case No. A12A1286. We have consolidated the two cases for review.

Meanwhile, 12 days after McRae filed her latest notice of appeal, the judge recused herself from the case, and she later resigned. In response to the recusal, McRae moved in the trial court to vacate all orders previously entered by the judge. The newly assigned judge entered an order noting that McRae’s notice of appeal serves as a supersedeas; accordingly he held that he lacked jurisdiction to act on McRae’s motions.

In the combined cases, McRae asserts the trial court erred (1) by granting summary judgment against her by default; (2) by granting the defendants’ motion for a protective order; (3) by denying her multiple motions for partial summary judgment; (4) by not following required procedures to address her motion to recuse; and (5) by not voiding all orders entered by the original judge. In another enumeration, she argues that because the trial court has not ruled on her motion to void all orders entered by the original judge, the case is not ripe for appeal. We will address these issues in a different sequence.

1. We first address McRae’s contention that the trial court erred by denying her two motions for partial summary judgment. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003). Thus, in connection with McRae’s motions, we construe the facts in favor of the defendants, while in considering the defendants’ motion, we will construe the facts in favor of McRae. Because McRae’s motions are so narrowly focused and because the related facts must be construed in favor of the defendants, we will address only the facts pertinent to McRae’s motions in this division, and we will provide a more complete recitation of the facts of the traffic stop in addressing the defendants’ motion below.

(a) In her first motion, McRae attempted to establish as a matter of law and undisputed fact that Hartman performed the traffic stop without reasonable suspicion. McRae acknowledges that Hartman claims that she was weaving within her lane of travel, which McRae disputes. McRae contends the video of the incident refutes this claim. But the defendants objected to admission of the video for purposes of summary judgment, and McRae failed to attempt to authenticate the video; moreover it is unclear from the trial court’s order denying McRae’s motion what action it took, if any, in response to the defendants’ objection. Nevertheless, our own viewing of the video leads us to conclude that there is an issue of fact, anyway, which is material and relevant to the determination of whether Hartman had reasonable suspicion to make the stop. “The police can stop drivers who engage in erratic driving behavior, even if it is simply weaving within a lane.” (Citations and punctuation omitted.) Veal v. State, 273 Ga. App. 47, 50 (614 SE2d 143) (2005). We conclude the trial court did not err by denying McRae’s first motion for partial summary judgment.

(b) In her second motion, McRae attempted to establish as a matter of law and undisputed fact that Hartman gave her a warning for driving on an invalid license even though Hartman had learned that McRae’s license was valid during the stop by communication over the “TTY’; thus, McRae contends, Hartman gave a false warning. She argues that Hartman and her superiors who ratified the act engaged in an intentionally false act and that because they did not know the law, their behavior was unreasonable and indefensible. But McRae has not introduced proof of the “TTY’ communication. Nor has she explained how the allegation is material to her claims. Thus we cannot conclude that summary judgment on this point was improperly denied based on the record available at the time.

2. Turning next to the defendants’ motion for summary judgment, we hold that the initial judge erred by ruling on McRae’s “Motion to Vacate Summary Judgment Granted Defendants” — a motion addressing the merits of the case — while the motion to recuse was pending. See Uniform Superior Court Rule 25.3. Although under other circumstances we might review the motion to recuse de novo and determine whether to uphold the order entered pending the motion, here the issue is moot because the judge in fact recused herself stating that she “[had] determined that it is necessary that she recuse herself from hearing or ruling in the above captioned matter.” We therefore cannot avoid the implication that she granted McRae’s motion to recuse and had reasonable grounds to do so. Accordingly, we conclude that the decision on McRae’s motion to vacate summary judgment is invalid and of no effect. See Propst v. Morgan, 288 Ga. 862, 864 (708 SE2d 291) (2011) (“if ... it is later determined that the judge should have been disqualified to act in the case, all proceedings after the filing of the motion to recuse are ‘invalid and of no effect.’ [Cits.]”) (emphasis supplied).

3. Next, the trial court’s original order granting summary judgment in favor of the defendants was based on an erroneous legal theory. The order itself makes clear that the decision was based on the fact that McRae failed to timely respond to the motion. See, e.g., Robertson v. Wheeler, 208 Ga. App. 68, 69 (1) (429 SE2d 714) (1993) (order plainly stated that court found no issue of fact because defendants failed to respond to motion for summary judgment). But “[t]here is no such thing as a default summary judgment.” (Punctuation omitted.) Milk v. Total Pay & HR Solutions, 280 Ga. App. 449, 450-451 (634 SE2d 208) (2006). Rather, the effect of failure to timely respond “waives the opponent’s right to present evidence in opposition to the motion. [Cits.]” Landsberg v. Powell, 278 Ga. App. 13, 15 (627 SE2d 922) (2006).

4. Under these circumstances — where the trial court relied on an erroneous legal theory — we have discretion either to perform an independent de novo review of the record that was properly before the trial court in order to determine whether summary judgment was appropriate for another reason or to return the case to the trial court for further proceedings. City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002). As explained by the Supreme Court, we have discretion to remand in certain cases:

In other cases, there may be a variety of grounds advanced, with disputes pertinent to those grounds. In such cases, judicial economy may be maximized by returning the case to the trial court upon the appellate court’s discovery that the trial court relied on an erroneous legal theory or reasoning. This would allow the trial court to issue rulings on grounds advanced, which could then serve as a basis for appellate review. Which course to pursue must be left to the appellate court’s discretion.

Id.

A review of the facts, the legal issues, and the procedural peculiarities of this case leads us to conclude that a remand is appropriate.

(a) Construing the record in favor of McRae, the relevant evidence shows that McRae, who is African-American, is from California but has multiple homes in Georgia, with two on St. Simons Island. At the time of the incident, she owned and kept one vehicle in California and two vehicles in Georgia, the latter two registered in this state. A little after 1:00 a.m. on September 23, 2005, McRae, accompanied by a male passenger who is also African-American, was driving to her vacation home on St. Simons Island in a 1993 Ford Explorer with a Glynn County registration tag. She was traveling east on the Torras Causeway within the speed limit. As she approached Marina Drive, a Glynn County police cruiser driven by Glynn County officer Barbara Hartman was at the entry ramp pointed toward the Torras Causeway with bright lights on that illuminated the interior of McRae’s vehicle as she drove past, in a manner sufficient to identify the race of the occupants. Hartman pulled out and began to follow McRae. McRae proceeded onto the island and turned onto Kings Way. There was very little traffic at the time, yet Hartman drove the patrol car close to McRae’s bumper then backed off in a manner that led McRae to believe that Hartman was trying to get her to speed up. But because McRae knew the speed limit along this section is 35 mph, that the limit would eventually drop to 25 mph, and because she preferred to drive cautiously at night, McRae maintained her speed of approximately 25 mph. Nevertheless, Hartman activated her lights and pulled McRae over for an investigatory stop.

McRae was wary about the encounter because of other encounters with traffic officers who were less than honest, including one where the video evidence of the traffic stop exonerated her from a charge. So she asked Hartman to make sure to turn on her microphone so that the encounter would be recorded; no audio recording, however, is in the record. Hartman, who was loud and rude from the inception, told McRae that she was driving too slowly and that she — Hartman — thought McRae might have been drinking, which McRae denied, stating, “I do not drink.” Hartman did not mention any other aspect of McRae’s driving or any other concerns as having been part of her reason for the stop. Hartman asked for McRae’s license, and McRae produced her California license. Hartman asked McRae for her address, and when McRae indicated it was on the license, Hartman repeatedly said McRae was being uncooperative and that she or her colleagues could arrest McRae for obstruction. When McRae gave Hartman her insurance card, Hartman forcefully snatched it out of McRae’s hand, causing pain to a prior injury. Hartman also took McRae’s passenger’s license to check, which she later returned. McRae then asked to speak to Hartman’s supervisor at the scene, and some time thereafter, Lieutenant Kenny Ellis arrived. In the interim, McRae’s passenger was allowed to leave. After a dialog with Ellis, in which Ellis stated that Hartman’s patrol car video would be retained, McRae departed. The traffic stop lasted “at least 20 minutes, possibly more.”

Also, McRae has raised an issue of fact as to whether Hartman filed a false police report because she claimed to be driving westbound on Kings Way near St. Andrews Drive on the island when she passed McRae, whereas McRae avers that the incident began at Marina Drive, just off the island, with Hartman’s vehicle lights illuminating the interior of McRae’s vehicle. Although the defendants objected to the authenticity of the relevant document, the defendants have conceded there is an issue of fact on this point.

McRae also has raised issues regarding the videotape of the incident. She avers that Hartman followed her for “a few miles” at 25 mph, yet a video recording only includes about 38 seconds prior to the stop, and it does not contain audio of Hartman and McRae’s encounter. Although the defendants object to the introduction of the videotape on the ground that McRae has not shown it to be authentic, a trial court has the discretion to allow its introduction based on circumstantial evidence. See footnote 2, supra.

‘ Defendants contend that Hartman stopped McRae because she was swerving, but as the defendants have highlighted, there is no authenticated evidence in the record regarding Hartman’s motivation, and McRae has vehemently denied swerving. She testified that at one point she shifted slightly to the right to avoid oncoming traffic and slightly left at one point to move away from roadside signs. But she added, “I did not weave even one scintilla.”

(b) Several aspects of this case suggest a remand is appropriate. First, the trial court found there were issues of fact regarding McRae’s claim that she was the subject of an unlawful stop and detention under the Fourth Amendment and that Hartman issued a warning regarding McRae’s license knowing that McRae’s license was in order. Second, summary judgment was granted in favor of the defendants on an erroneous legal theory. Third, there are issues falling within the trial court’s discretion regarding the admissibility of certain evidence produced by the defendants and issues regarding the completeness and veracity of that evidence, including the possibility of fabrication of evidence, which can be relevant to a determination of qualified immunity. Fourth, McRae’s motion to extend discovery is pending, McRae’s motion to vacate the protective order is pending, and the case has been delayed by an unusual procedural history. Fifth, the recusal of the original judge has had an impact on the case.

Finally, and perhaps most importantly, none of McRae’s substantive claims have been addressed by the court below. These claims are racial profiling, negligent supervision, negligent retention, and harassment, and some raise difficult issues and defenses such as supervisor liability, qualified immunity, and sovereign immunity. As the Supreme Court explained in Dodd, where “[tjhere having been no rulings by the trial court on the issues raised on appeal, there are no rulings to review for legal error.” (Citation and punctuation omitted.) Id. at 837. See, e.g., Strength v. Lovett, 311 Ga. App. 35, 44-45 (2) (b) (714 SE2d 723) (2011) (remanding question not reached by trial court); DuPree v. South Atlantic Conference of Seventh Day Adventists, 299 Ga. App. 352, 355 (683 SE2d 1) (2009) (remanding where “trial court did not rule upon the other grounds advanced by [appellee] in its motion for summary judgment”).

Decided October 5, 2012.

Margie McRae, pro se.

Brown, Readdick, Bumgartner & Carter, Terry L. Readdick, Steven G. Blackerby, for appellees.

We therefore remand this case to the trial court for further proceedings consistent with this opinion. See, e.g., Meredith v. Thompson, 312 Ga.App. 697, 702-703 (719 SE2d 592) (2011) (case remanded when it had “numerous theories of recovery asserted against each of the three individual defendants” that were not addressed by the trial court).

Judgments affirmed in part and vacated in part, and case remanded.

Barnes, P. J., and Phipps, P. J., concur.

       See OCGA § 5-6-46 (a) (“In civil cases, the notice of appeal... shall serve as supersedeas upon payment of all costs in the trial court by the appellant.”).

       “In summary judgment proceedings!,] the rules on admissibility of evidence apply. . . .” Hodges v. Putzel Electric Contractors, 260 Ga. App. 590, 594 (1) (580 SE2d 243) (2003). See also Lance v. Elliott, 202 Ga. App. 164, 167 (413 SE2d 486) (1991). This includes the rules for authentication of documents. See, e.g., Davis v. First Healthcare Corp., 234 Ga. App. 744, 746 (1) (507 SE2d 563) (1998). And, “a document cannot be authenticated solely by evidence of its contents and appearance. [Cits.]” Id. at 747, n. 2. However, “[t]he genuineness of a writing may be proved by circumstantial evidence. [Cits.]” Arevalo v. State, 275 Ga. 392, 395 (5) (567 SE2d 303) (2002); Davis, 234 Ga. App. at 747-748 (1). And a trial court must exercise its discretion regarding questions concerning the admission of evidence. Davison v. Hines, 291 Ga. 434, 438 (3) (729 SE2d 330) (2012).

       We review only the portions of the record available to the trial court at the time. Medley v. Boomershine Pontiac-GMC Truck, 214 Ga. App. 795, 796 (2) (449 SE2d 128) (1994).

       Uniform Superior Court Rule 25.3 provides as follows:
      When a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to he true, whether recusal would be warranted.

       See generally Mayor &c. of Savannah v. Batson-Cook Co., 291 Ga. 114, 119 (1) (728 SE2d 189) (2012) (we review de novo decision by initial judge presented with motion to recuse).

       The judge’s recusal is in the record in Case No. A12A1286, and we may consider it. Cf. Poetter v. State, 244 Ga. App. 675, 676 (536 SE2d 576) (2000) (court can determine whether issue on appeal is moot based on evidence outside the record transmitted from the court below).

       “Unless otherwise ordered by the judge, each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion.” Uniform Superior Court Rule 6.2. The defendants served their motion on June 12, 2008 by depositing it in the United States mail with sufficient postage. Service was complete upon mailing. OCGA § 9-11-5 (b). Aresponse was due “not later than 30 days after service of the motion,” USCR 6.2, although McRae was entitled to an additional three days because the motion was served by mail. OCGA § 9-11-6 (e). Thus, she was required to respond by July 15, 2008, which she failed to do. Although McRae eventually filed a response on July 28, 2008, the trial court had already issued an order on July 22, 2008.

       McRae, however, had already placed evidence into the record prior to when the court granted the defendants’ motion for summary judgment. Indeed, she had filed her own motions for summary judgment and attached her own affidavit and other materials thereto. Furthermore, the defendants made several concessions regarding the facts in their briefs. Moreover, the judge had already denied McRae’s motions for summary judgment on the ground that there was a genuine issue of material fact regarding whether McRae’s car was weaving and whether she was falsely accused of driving with an invalid license.

       Defendants contend that by making these statements, McRae has admitted to swerving. In so doing, defendants have disregarded the rule that the evidence will be construed in favor of the nonmovant. Moreover, because the defendants objected to the authenticity of documents that they appear to have generated and rely exclusively on McRae’s testimony, at the time the court granted defendants’ motion for summary judgment, there was in fact no evidence in the record of any weaving or swerving.

       See generally Riley v. City of Montgomery, 104 F3d 1247, 1253 (11th Cir. 1997) (“It was well established in 1989 that fabricating incriminating evidence violated constitutional rights.”). Cf. Kingsland v. City of Miami, 382 F3d 1220, 1232 (11th Cir. 2004) (“falsifying facts to establish probable cause is patently unconstitutional”).

       Because we are remanding this case for reconsideration of the defendants’ motion for summary judgment and for several other interrelated matters, and because McRae’s motion to vacate the protective order is pending and affected by some of these other issues, judicial economy dictates that we need not at this time address McRae’s argument that the trial court incorrectly granted the protective order.


author: Dillard, Judge.

text:
    A12A0881.
    OWENS v. THE STATE.
    (733 SE2d 16)
   Dillard, Judge.

Following a trial by jury, Charles Earl Owens was convicted on two counts of robbery by sudden snatching. On appeal, Owens contends that (1) the evidence was insufficient to sustain his convictions, (2) trial counsel rendered ineffective assistance for a number of reasons, and (3) the trial court erred in failing to determine whether Owens and his trial counsel had a conflict of interest. Because Owens’s trial counsel rendered ineffective assistance of counsel, we reverse his convictions.

Viewed in the light most favorable to the verdict, the record reflects that on February 6, 2009, at approximately 2:20 a.m., a man entered a Lilburn Waffle House that was otherwise deserted, except for the presence of two employees. Upon entering the establishment, the man checked the restroom for occupants and initially made as if to order at the counter, but then he demanded that the server open the register. When the server hesitated, the man again commanded her to “open the damn register,” and after she complied, he grabbed the money from within, walked out of the restaurant, and ran across the street. The server and grill operator described the perpetrator as an African-American male who wore sunglasses, a black-and-white jacket, and loose pajama-style or chef-style pants. Neither could identify the robber from a photographic lineup, and although police dusted the premises for fingerprints, they could not pinpoint a suspect.

Three days later, on February 9, 2009, at approximately 6:00 a.m., a man entered a Gwinnett County convenience store and asked the operator whether he could use the restroom. When the operator responded that the restroom was out of order, the man uttered profanities and made as if to leave; however, he reentered the store after walking outside and covering his face with a pair of pantyhose. The man kept one hand in his pocket, jumped on the counter top, demanded that the operator open the register and give him money, and advised the operator that he had a gun and would shoot if his demands were not met. Once the register opened, the man grabbed the money and left the premises. The operator described the perpetrator as wearing a jacket and checkered pants. A responding officer discovered a black j acket in the roadway near the crime scene, and the jacket appeared to have been recently discarded. Police also lifted a gel print of the perpetrator’s shoe from the counter top, and although they dusted the premises for fingerprints, they again could not pinpoint a suspect.

With no leads in the Waffle House incident, law enforcement decided to air surveillance video on the local news in the hope that a viewer could identify a suspect. After the video aired on February 18, a law-enforcement officer from Cobb County called and identified Owens. Thereafter, law enforcement conducted research on Owens, contacted a probation officer who was familiar with him, and sent her still shots from the Waffle House surveillance video, from which she too opined that Owens was the perpetrator. Law enforcement eventually connected the two robberies on the belief that, due to certain similarities, they were committed by the same person.

Warrants were then issued for Owens’s arrest, which were served at a residence he shared with other individuals. A search warrant was executed after Owens’s arrest, and police impounded a vehicle to which Owens had access but which was registered to someone else. Inside the vehicle, officers discovered a firearm. An officer also seized the shoes Owens wore after recognizing the tread pattern from the investigation. A subsequent comparison of the shoes to the print lifted at the crime scene revealed similar wear, pattern, and size, but the expert forensic examiner could not positively identify Owens’s shoes as an exact match due to a lack of more detailed features (e.g., cuts, scratches, and nicks within the pattern).

Owens was thereafter indicted on one count of robbery by sudden snatching related to the incident at the Waffle House, and one count of armed robbery related to the incident at the convenience store. On both counts, he was convicted by the jury of robbery by sudden snatching. This appeal follows.

1. Owens contends that his trial counsel rendered ineffective assistance of counsel by failing to object to improper opinion testimony as to the identity of the perpetrator. We agree.

In general, when a defendant claims that he received ineffective assistance of counsel, he has the burden of establishing that “(1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” And when a trial court determines that a defendant was not denied effective assistance of counsel, that decision “will be affirmed on appeal unless that determination is clearly erroneous.”

In the case sub judice, Owens takes issue with his trial counsel’s failure to, inter alia, object to the testimony by the Cobb County law-enforcement officer and the probation officer, who opined that Owens was the perpetrator in the surveillance video from the Waffle House incident. The first witness testified that she had known Owens for about five years and that she recognized him in the video “by his mannerisms, the way he walked.” The second witness testified that she had “no question” that Owens was the individual in the surveillance footage. And when questioned as to why, she responded that she had seen Owens about two weeks prior and recognized his face, although she denied that there was anything distinctive or characteristic about his face. She also did not recall the individual in the surveillance footage wearing anything that obscured his hair, head, face, or neck.

In a motion for new trial, Owens argued that his trial counsel was ineffective for failing to object to the above testimony because it was inadmissible opinion evidence concerning the identity of the perpetrator in the Waffle House surveillance tape. At the hearing on the motion, his former trial counsel testified that she had no strategic or tactical reason for not objecting. In ruling against Owens, the trial court determined that the testimony was admissible and relevant, and that counsel was not ineffective for failing to object. Specifically, the trial court found that the two witnesses “had independent prior contact with [Owens] and knew him from this prior interaction,” and that the witnesses “had knowledge outside of the ken of the jurors and properly testified why they believed they recognized [Owens] in the surveillance videos [sic].” At least as to the second witness, the probation officer, the trial court’s ruling was erroneous.

It is well established in our case law that it is improper to allow a witness to “testify as to the identity of a person in a video or photograph when such opinion evidence tends only to establish a fact which average jurors could decide thinking for themselves and drawing their own conclusions.” Indeed, such identification testimony

should be admitted for the jury’s consideration only if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the [video or] photograph than is the jury, as when the witness is familiar with the defendant’s appearance around the time a surveillance [video or] photograph was taken and the defendant’s appearance has changed prior to trial, or when the witness knows about some other distinctive but presently inaccessible characteristic of the defendant’s appearance.

Thus, a witness’s familiarity with the defendant, in and of itself, “does not make his or her identification testimony based on a video or photograph admissible.”

And here, there was no evidence that the perpetrator’s face was obscured by a mask or that Owens’s appearance had changed prior to trial. Although the State argues that the perpetrator in the surveillance video wore sunglasses and a hat, we have rejected a similar argument in the past, and the probation officer did not offer any basis for her identification of Owens aside from general familiarity. On the other hand, the Cobb County law-enforcement officer’s identification was based on an observation of a “distinctive but presently inaccessible characteristic of the defendant’s appearance,” i.e., his mannerisms and walk. Accordingly, while an objection to that testimony would have been unfounded, an objection to the probation officer’s testimony would have had merit.

Indeed, this inadmissible testimony went to the heart of Owens’s defense of misidentification and, thus, because counsel’s failure to object was due to a “misapprehension of the law rather than any unwise choices of trial tactics and strategy, we conclude that [Owens’s] trial counsel’s performance fell below an objective standard of reasonableness.” Having so determined, we must now consider “whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Although there was other evidence tending to identify Owens as the perpetrator, it was limited to the brief, aforementioned testimony of the Cobb County law-enforcement officer; a recording of a jailhouse telephone call in which Owens spoke to his roommate and discussed how the roommate had “pulled one” with regard to ‘Tot-toms’’; and the similarities between Owens’s shoes and those worn by the perpetrator. But this evidence was countered by the fact that no witness to the crimes could identify Owens; the shoe print could not be definitively linked to Owens; fingerprint evidence could not be linked to Owens; the jacket discovered near the convenience store was not linked to Owens; and the firearm was not definitively linked to Owens or to the convenience-store robbery.

Suffice it to say, the determination that the perpetrator depicted in the surveillance videos was in fact Owens was a question for the jury. Owens’s trial counsel, however, permitted the jury’s decision in that regard to be made contextually with unequivocal, inadmissible testimony that Owens was the person depicted in the surveillance video. Thus, we conclude that if the probation officer’s testimony regarding her certainty that Owens was the perpetrator had been excluded, there is a reasonable probability that Owens would have been acquitted. Owens, therefore, is entitled to a new trial, and this case is remanded for that purpose.

Decided October 9, 2012.

Edwin J. Wilson, for appellant.

Daniel J. Porter, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.

2. Although we reverse on the issue of ineffective assistance of counsel, we disagree with Owens’s contention that the evidence was insufficient to sustain convictions for robbery by sudden snatching, and conclude that the State may retry Owens.

A person commits the offense of robbery by sudden snatching when he or she “with intent to commit theft, . . . takes property of another from the person or the immediate presence of another... [b]y sudden snatching.” And here, there was evidence that a perpetrator grabbed money from the open cash registers in the Waffle House and convenience store in the presence of employees. Further, despite Owens’s contentions as to identity and our holding in Division 1, supra, there was still some evidence — however limited and in conflict — by which a jury could conclude that Owens was the perpetrator, including the law-enforcement officer’s testimony as well as the jury’s ability to reach that same conclusion after viewing the surveillance videos.

3. Given our holding in Division 1, we need not address Owens’s remaining enumerations of error.

Judgment reversed and case remanded.

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

        See, e.g., Smith v. State, 235 Ga. App. 223, 224 (510 SE2d 295) (1998).

       OCGA § 16-8-40 (a) (3).

       OCGA § 16-8-41 (a).

       The jury convicted Owens of the lesser-included offense of robbery by sudden snatching on the armed-robbery count.

        Grimes v. State, 291 Ga. App. 585, 589 (2) (662 SE2d 346) (2008) (punctuation omitted).

        Id.

        Dawson v. State, 283 Ga. 315, 320 (4) (658 SE2d 755) (2008) (punctuation omitted); accord Grimes, 291 Ga. App. at 590 (2).

        Grimes, 291 Ga. App. at 590-91 (2) (punctuation omitted); see also Dawson, 283 Ga. at 320 (4) (“A person not qualified as an expert and who was not the victim of or witness to a crime but who has viewed a surveillance videotape of the commission of the crime, has been permitted to give an opinion of the identity of persons depicted on the videotape if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury. This criterion is fulfilled [when] the witness is familiar with the defendant’s appearance around the time the surveillance photograph was taken and the defendant’s appearance has changed prior to trial.” (punctuation omitted)).

        Grimes, 291 Ga. App. at 591 (2).

        See id. (rejecting State’s argument that identification testimony was admissible when perpetrator’s head was covered and photographs were grainy). Compare Roberts v. State, 257 Ga. App. 251, 252 (2) (570 SE2d 595) (2002) (permitting identification testimony when officers took defendant’s statement four days after robbery, perpetrator in video wore a mask, officers testified that defendant’s physical appearance had changed since robbery, and defendant admitted that his hair had changed since robbery). Our review of the video shows that although the perpetrator appears to be wearing sunglasses, his face was not obscured by a hat. His head instead appears to be covered by a tight-fitting do-rag.

        Compare Dawson, 283 Ga. at 319 (4) (permitting identification testimony when witness identified defendant by movement, body language, and mannerisms, and defendant gained approximately 50 pounds before trial); Jackson v. State, 316 Ga. App. 80, 81 (729 SE2d 404) (2012) (permitting identification testimony when most of perpetrator’s face was obscured in surveillance video but witness testified that she identified the defendant by her familiarity with his walk and clothing).

        See Bradford v. State, 274 Ga. App. 659, 661 (3) (618 SE2d 709) (2005) (permitting identification when witnesses identified masked perpetrator based on familiarity with defendant’s “quirky body movements”); see also Dawson, 283 Ga. at 319 (4); Jackson, 316 Ga. App. at 81.

        See Grimes, 291 Ga. App. at 592 (2); see also Mitchell v. State, 283 Ga. App. 456, 459 (641 SE2d 674) (2007) (identification was improper when testimony was based on no more than officer’s previous acquaintance with defendant).

        Grimes, 291 Ga. App. at 592 (2).

        Id. (punctuation omitted).

       The State argues that the jury could have inferred from this recording that Owens and his roommate were speaking in code, and that the roommate had discarded the distinctive pants worn by the perpetrator during the robberies.

        See Grimes, 291 Ga. App. at 593 (2).

        See id.; see also Wadlington v. State, 302 Ga. App. 559, 562 (692 SE2d 28) (2010) (“Based on this less than overwhelming identification evidence, as well as the fact that [the defendant’s] defense was that he had been misidentified, a reasonable probability exists that the outcome might have been different if counsel had objected to the detective’s repeated assertions that he was positive that [the defendant] was the man in the surveillance tape.”). Compare Bryson v. State, 316 Ga. App. 512, 520 (5) (c) (729 SE2d 631) (2012) (although trial counsel was ineffective in failing to object to identification testimony, reversal unnecessary when victim identified defendant, officer who chased and apprehended defendant shortly after robbery identified defendant in court, and items from robbery were found in defendant’s get-away vehicle); Ware v. State, 307 Ga. App. 782, 785 (1) (c) (706 SE2d 143) (2011) (reversal unnecessary when victims identified perpetrator and jury was shown still photographs of the robber’s face); Rogers v. State, 294 Ga. App. 195, 198-99 (3) (670 SE2d 106) (2008) (trial court erred in admitting identification testimony but the error was harmless when misidentification was not the basis of the defendant’s defense).

        Grimes, 291 Ga. App. at 594 (2).

       OCGA § 16-8-40 (a) (3).

        See, e.g., Sweet v. State, 304 Ga. App. 474, 477 (2) (697 SE2d 246) (2010) (sufficient evidence when defendant opened register and grabbed money in employee’s presence).