author: Andrews, Presiding Judge.

text:
    A14A2301.
    POSTELL et al. v. ALFA INSURANCE CORPORATION et al.
    (772 SE2d 793)
   Andrews, Presiding Judge.

Appellants Crandall Postell and Sharon Davis commenced an action in the trial court asserting tort and breach of contract claims against Alfa Insurance Corporation, Davis’ home insurer, American Home Shield Corporation, which provided a home warranty plan for Davis’ home, and other defendants (collectively, “Appellees”). The trial court entered an order on February 28, 2013 by which it (1) entered judgment on a jury verdict in Davis’ favor on one of her contractual claims against Alfa and (2) granted a directed verdict for Appellees as to all other claims. Appellants filed a notice of appeal, but the trial court thereafter granted Appellees’ motion to dismiss the appeal under OCGA § 5-6-48 (c). In Postell v. Alfa Ins. Corp., 327 Ga. App. 194 (757 SE2d 661) (2014), we vacated the trial court’s dismissal order and remanded the case because the trial court failed to make the requisite findings to allow us to determine whether the trial court properly exercised its discretion. Following remand, the trial court entered a more detailed order dismissing the appeal. Appellants appeal pro se, arguing that the trial court abused its discretion in dismissing the appeal and erred in denying their motion to recuse the trial judge. For the reasons that follow, we affirm.

The record shows that Appellants filed a notice of appeal on March 22, 2013 requesting that the trial court clerk “omit nothing” from the record on appeal. On March 26, 2013, the trial court clerk sent an invoice for the cost of preparing the record on appeal to Appellants by certified mail. On April 12, 2013, Appellants filed an amended notice of appeal specifying that the record on appeal should omit nothing and should include the “trial court transcript and all exhibits.” Appellees filed their motion to dismiss the appeal on May 28, 2013 based on Appellants’ alleged unreasonable and inexcusable delay in filing the trial transcript and in paying the costs of the appeal. On May 31, 2013, Appellants’ counsel wrote to the trial court, stating that she was retained on April 30, 2013 and requesting an extension of time for obtaining the trial transcripts.

Appellants asserted in their response to the motion to dismiss that the court reporter who took down the trial sent an invoice to their trial counsel on February 19,2013forthe cost oftaking down the trial but that their counsel did not forward it to them. Postell contacted the court reporter on his own accord in late February to get an estimate of the cost of a full transcript. A February 26, 2013 letter from the court reporter to Postell, attached as an exhibit to Appellants’ response, reflects that Postell had spoken with her that day and that she advised him that she would not begin transcribing the trial until she received a payment of $4,700. The letter stated that her reporting company “requires payment in advance of beginning work on such a time-consuming trial.” Appellants asserted in their response that they were not able to pay that sum up front and that the court reporter was not willing to work out another arrangement. Once they retained new counsel, however, counsel was able to work out a payment arrangement so that Appellants could pay $937 in advance for the transcription of each day of the trial.

At the hearing on the motion to dismiss on July 19, 2013, Appellants’ counsel asserted that Appellants’ trial counsel had advised Appellants that they would only need certain parts of the transcript but that he would not represent them on appeal. Another attorney they consulted while looking for new counsel, however, “tipped them off” that they would need to have the full transcript prepared. Appellants’ counsel advised the trial court that as of the hearing date, the court reporter had completed day one of the four-day trial and was working on day two. Appellants’ counsel stated that the March 26, 2013 invoice had been paid the previous week. Counsel for both sides stated that the reason the court reporter initially required advance payment from Appellants was that they were unrepresented.

The trial court granted the motion to dismiss in a summary order entered on August 7, 2013. Appellants’ counsel filed a motion for reconsideration and attached thereto e-mail correspondence with the court reporter showing that the transcript of the final day of trial was sent by overnight mail to the trial court clerk so as to be received by August 8, 2013. The trial court denied the motion, and Appellants’ counsel thereafter filed a motion to withdraw. Acting pro se, Appellants filed a renewed motion for reconsideration, which the trial court denied in an order entered after Appellants filed their notice of appeal from the dismissal order. The remittitur following the prior appeal was filed in the trial court on May 5, 2014. Prior thereto, on April 21, 2014, Appellants filed a motion to open discovery. On April 23, 2014, the trial court entered an order granting Appellees’ motion to dismiss and denying the motion to open discovery. On April 29, 2014, Appellants filed a motion to recuse the trial judge, arguing, among other things, that her April 23 order evidenced her bias against them. On May 5, 2014, the trial court entered orders denying the motion to recuse and the motion to open discovery; an order vacating the April 23 order as void; and an order granting the motion to dismiss, which contained the same findings of fact and conclusions of law as the April 23 order. Appellants filed two motions to recuse before they filed their notice of appeal.

1. We first address Appellants’ argument that the trial court erred in denying their first motion to recuse the trial judge. See Propst v. Morgan, 288 Ga. 862, 864-865 (708 SE2d 291) (2011).

Once a motion to recuse is filed with the trial judge ..., that judge must make three threshold determinations regarding the legal sufficiency of the motion: whether it was timely filed; whether the affidavit made in support of it... is legally sufficient; and whether, if some or all of the facts set forth in the affidavit are true, recusal would be authorized.

(Citations omitted.) Henderson v. State, 295 Ga. 333, 334 (1) (759 SE2d 827) (2014); see also Uniform Superior Court Rule 25.3. If any one of the conditions is not met, the trial court does not err in denying the motion without referring it to another judge. Henderson, supra, 295 Ga. at 334 (1).

Appellants submitted a purported joint affidavit in support of their motion to recuse in which they contended that the judge exhibited bias because her April 23, 2014 dismissal order (that was later vacated) contained an erroneous finding regarding one of the reasons the court reporter would not begin transcribing the trial without payment in full. They further cite as evidence of bias the judge’s comments at the hearing on the motion to dismiss about the court reporter’s reasons for requiring a deposit and the consequences of the delayed appeal for all parties, including Appellants, who had not yet cashed the check they received from Alfa in satisfaction of their judgment. The affidavit also maintained that the April 23 dismissal order was unsubstantiated.

“In order to disqualify the judge, the alleged bias must stem from an extra-judicial source and result in an opinion based on something other than what the judge learned from participating in the case.” (Footnote omitted.) Henderson v. McVay, 269 Ga. 7, 9 (2) (494 SE2d 653) (1998). Appellants’ affidavit fails to allege that any of the trial judge’s statements at the hearing on the motion to dismiss were based on anything other than what she had learned from participating in the case, and their contentions, true or not, that the trial court erred in its findings of fact or conclusions of law in the April 23, 2014 dismissal order provide no legal basis for recusal. See Schlanger v. State, 297 Ga. App. 785, 786 (678 SE2d 190) (2009) (“[A] merely erroneous order cannot by itself justify the grant of a motion to recuse.”). The trial court did not err in denying the motion to recuse.

2. Appellants argue that the trial court erred in dismissing their appeal pursuant to OCGA § 5-6-48 (c). We review the trial court’s dismissalfor an abuse of discretion. Pistacchio v. Frasso, 314 Ga. App. 119, 121 (723 SE2d 322) (2012).

(a) Failure to timely file trial transcript. A trial court is authorized to dismiss an appeal based upon a delay in filing a transcript only if all three criteria in OCGA § 5-6-48 (c) are satisfied: (1) the delay in filing is unreasonable; (2) the delay in filing was inexcusable; and (3) the delay in filing was caused by the appellant. Pistacchio v. Frasso, 309 Ga. App. 583, 583-584 (711 SE2d 98) (2011). As we have explained,

OCGA § 5-6-41 (c) provides that where an appeal is taken which draws in question the transcript of the evidence and proceedings, it shall be the duty of the appellant to have the transcript prepared at the appellant’s expense. OCGA § 5-6-42 elaborates on this duty, specifying that the appellant must file the transcript within 30 days after the filing of the notice of appeal unless the time is extended as provided by OCGA § 5-6-39.

(Citation and punctuation omitted.) Ashley v. JP Morgan Chase Bank, 327 Ga. App. 232, 234-235 (1) (758 SE2d 135) (2014). A delay of greater than 30 days in filing a transcript is “prima facie unreasonable and inexcusable, but this presumption is subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable.” (Citation and punctuation omitted.) Pistacchio, supra, 314 Ga. App. at 121.

(i) The threshold question of whether a delay is unreasonable “refers principally to the length and effect of the delay rather than the cause of the delay.” (Citation and punctuation omitted.) Adams v. Hebert, 279 Ga. App. 158, 159 (630 SE2d 652) (2006).

Generally, a delay is unreasonable if it affects an appeal, either by directly prejudicing the position of a party by allowing an intermediate change of conditions or otherwise resulting in inequity, or by causing the appeal to become stale, for instance by delaying docketing and hearing in this court.

(Citation and punctuation omitted.) Id.

The trial transcript was finally filed in the trial court on or about August 8, 2013, after the motion to dismiss was filed and granted and some four-and-a-half months after Appellants filed their initial notice of appeal. The docket for the September term in the Court of Appeals closed on August 15, 2013. See Court of Appeals Rule 12. Any assertion that, absent the dismissal order, the record could have been prepared and transmitted in time to be docketed to the September term would rest on speculation. This is especially so given that, before transmittal could occur, the trial court’s clerk would have to bill Appellantsforadditionalcostsandreceivepayment.SeeOCGA § 15-6-80; Pistacchio, supra, 314 Ga. App. at 122 (whether trial court clerk would have transmitted record to this Court for docketing to September term when transcript was filed five days before August 15 and costs were paid three days before August 15 was conjecture). As such, Appellants are unable to overcome the presumption in this case that the delay in filing the trial transcript was unreasonable, and the trial court did not err in finding the delay unreasonable. See id. (delay of almost three months “discernibly delayed docketing of the record in the appellate court and prevented an appellate decision on the merits at the earliest possible date”); Roy v. Shetty, 274 Ga. App. 8, 9-10 (1) (616 SE2d 208) (2005) (110-day delay unreasonable).

(ii) Appellants’ principal argument is that they did not cause the delay in filing the transcript. They first argue that the trial court was required to find that they were not responsible for the delay because the court reporter initially advised them that the cost of transcribing the trial would be $4,700 but, in fact, the actual cost was $3,326.56. They maintain that they were willing and able to pay that amount, and had they received an accurate estimate, no delay would have ensued. The record reflects that Appellants made these assertions for the first time in their second motion for reconsideration of the dismissal order, which failed to include any supporting evidence. As such, they provide no basis for disturbing the trial court’s conclusion that Appellants caused the delay in filing the transcript. See Toombs v. Meyer M. Cardin Living Trust No. 2, 279 Ga. App. 682, 684 (1) (632 SE2d 410) (2006) (“This court will not consider factual assertions in the brief unsupported by the record.”) (citation and punctuation omitted).

Appellants also challenge a finding of fact in the dismissal order regarding one of the reasons the court reporter initially required up-front payment for the trial transcript. In the dismissal order, the trial court stated: “As the court reporter had not been timely paid for the takedown in February by the plaintiffs and they were now unrepresented, she was unwilling to begin work without payment.” One of the exhibits to Appellants’ response to the motion to dismiss is the court reporter’s February 19, 2013 invoice, addressed to Appellants’ trial counsel, for $484.05 for Appellants’ portion of the cost of taking down the trial. The invoice bears a notation “paid in full 05-09-13.” While the record reflects that Appellants did not promptly pay the court reporter for their portion of the take-down fee, neither party argued or presented any evidence in the trial court that the court reporter requested an advance deposit because of a delay in paying that fee; rather, it was undisputed that the court reporter was concerned about Appellants’ pro se status. As such, the trial court erred in finding otherwise.

Nonetheless, as the dismissal order correctly finds, the court reporter advised Appellants of the cost of the transcript on February 26,2013, yet they did not work out a payment arrangement and make a payment toward the transcript until May. While we have held that “[appellants are not accountable for delays caused by clerks of court or court reporters after the transcript has been ordered properly,” Morrell v. Western Svcs., 291 Ga. App. 369, 373 (2) (662 SE2d 215) (2008) (citation and punctuation omitted), Appellants did not properly order the transcript until after the 30-day period set forth in OCGA § 5-6-42 had elapsed. Further, as the trial court found, Appellants failed to request an extension of time to file the transcript until after Appellees filed their motion to dismiss. Given the foregoing facts, the trial court was authorized to conclude that despite their change of counsel after trial, Appellants’ delay in determining whether they needed the transcript and in working out a payment arrangement to get it was inexcusable and caused the delay in filing the transcript. See Roy, supra, 274 Ga. App. at 10 (2) (trial court did not err in concluding that delay was inexcusable and caused by appellant notwithstanding appellant’s contention that he could not afford the transcript and could not come to terms with the court reporter; appellant did not notify trial court in timely fashion of alleged poverty or apply for extension of time in which to file the transcript); Cook v. McNamee, 223 Ga. App. 460, 461 (477 SE2d 884) (1996) (trial court was authorized to conclude that plaintiff’s delay of over a month in attempting to resolve dispute with court reporter over cost of transcript and failure to request a further extension after first extension expired inexcusably caused delay in filing transcript).

Decided March 19, 2015

Reconsideration denied April 13, 2015.

Crandall Postell, pro se.

Sharon Davis, pro se.

(iii) Notwithstanding the trial court’s factual error, discussed above, we cannot conclude that the trial court abused its discretion in finding that Appellants’ appeal should be dismissed. The trial court was correct in finding that a significant delay occurred with respect to Appellants’ payment of their portion of the take-down fee for the trial, and this fact was relevant in assessing Appellants’ course of conduct and level of diligence in pursuing their appeal. The trial court was incorrect only to the extent it concluded that the delay in paying the take-down fee was one reason that the court reporter was unwilling to transcribe the trial without advance payment in full. Under the circumstances and in view of the trial court’s order as a whole, we cannot conclude that trial court’s erroneous finding was sufficiently material to require us to find an abuse of discretion and to remand the case. See In the Interest of R. W., 315 Ga. App. 227, 232 (3) (c) (726 SE2d 708) (2012) (“[A]n abuse of discretion occurs where the trial court significantly misapplies the law or clearly errs in a material factual finding.”) (punctuation and footnote omitted; emphasis supplied).

(b) Delay in paying costs. Given our disposition in Division 2 (a) (iii) above, we need not determine whether the trial court erred in determining that the appeal was also subject to dismissal based on Appellants’ delay in paying costs. See In the Interest of C. F., 255 Ga. App. 93, 95 (2) (564 SE2d 524) (2002).

3. Although Appellants argue that the trial court should have granted their motions to recuse that were filed after the trial court entered its dismissal order, their enumeration of error presents nothing for our review. Hipple v. Simpson Paper Co., 234 Ga. App. 516, 517 (2) (507 SE2d 156) (1998) (“Without an order of the trial judge ruling either for or against [appellants’] motion, there is nothing for this court to pass on in that respect.”) (punctuation omitted).

Judgment affirmed.

McFadden and Ray, JJ., concur.

John D. Carey; S. E. Moody III; Martin Snow, William H. Larsen, Thomas P. Allen III; Haygood Lynch Harris Melton & Watson, C. Robert Melton; Hall Booth Smith, James H. Fisher, for appellees.

       In her February 26, 2013 letter, the court reporter estimated that it would take her 90 days to complete the transcript, and based on such estimate, it would have been ready by late May had it been ordered at that time.

       We also note that, while Appellants asserted below that they had trouble affording the transcript, their counsel admitted at the motion to dismiss hearing that they were not indigent. See Plumides v. American Engines & Transmissions, 227 Ga. App. 885 (490 SE2d 552) (1997) (trial court authorized to find delay inexcusable; trial court’s order reflected that although appellant claimed he could not afford transcript, appellant admitted he did not qualify as a pauper).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A14A1514, A14A1515.
    BANKSTON v. WARBINGTON; and vice versa.
    (771 SE2d 726)
   Branch, Judge.

These companion appeals are the second and third arising from a custody dispute that went to trial in September 2012. In October 2012, the trial court issued an order modifying primary physical custody of the ten-year-old child at issue in favor of the father as of January 2013, but also including a self-executing provision that the mother would regain custody after 18 months (in the summer of 2014). In November 2013, the trial court ruled on the mother’s post-trial motions and the father’s request for attorney fees. On appeal in Case No. A14A1514, the mother argues that the trial court abused its discretion when it modified custody in favor of the father. On cross-appeal in Case No. A14A1515, the father argues that the trial court erred when it ordered the self-executing change of custody in the summer of 2014, when it increased his child support obligation as of that time, and when it failed to rule on the father’s request for fees first made shortly after trial. We affirm the initial modification of custody as supported by the evidence, but we reverse those portions of the order implementing the self-executing return of custody and awarding child support to the mother. We also vacate the judgment as to fees and remand for further proceedings consistent with this opinion.

On appeal from a trial court’s determination in a custody dispute, we defer to that court in all matters of fact:

When considering a dispute regarding the custody of a child, a trial court has very broad discretion, looking always to the best interest of the child. This Court will not interfere unless the evidence shows a clear abuse of discretion, and where there is any evidence to support the trial court’s finding, we will not find there was an abuse of discretion.

Williams v. Williams, 295 Ga. 113 (1) (757 SE2d 859) (2014) (citations and punctuation omitted). “We are mindful that the Solomonic task of making [custody] decisions lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility.” Smith v. Curtis, 316 Ga. App. 890, 892 (730 SE2d 604) (2012) (citations and punctuation omitted).

Viewed in favor of the trial court’s judgment, the record shows that the child at issue, a girl, was born on January 26, 2004. In a November 2004 consent order, the parties agreed that the mother would have primary physical custody of the child. In February 2006, after the mother moved out of Georgia, the father sought and obtained more visitation time. On February 9,2011, the father filed the instant petition for a change in custody and child support, alleging inter alia that the mother had not provided a stable environment for the child and had alienated the child from the father.

In July 2011, the mother refused to pick up the daughter at Los Angeles International Airport (LAX) at a scheduled custody transfer such that the daughter was forced to return to Atlanta with her father before flying back to her mother in California. On July 26, 2011, the mother filed an emergency motion for contempt against the father as to the airport incident, which the trial court characterized as a “honest disagreement” between the two parents. In April 2012, the trial court found that the mother and her counsel had thus “unnecessarily expanded the proceeding by improper conduct,” including the filing and defense of pleadings and motions “that lacked substantial justification or [were] interposed for delay or harassment,” and awarded the father $4,300 in attorney fees and expenses. In the case’s first appearance on appeal, we affirmed the trial court’s authority to award the father attorney fees, reversed the award of the father’s air expenses as not authorized by OCGA § 9-15-14 (b), and remanded for further proceedings as to the proper amount of the fee award. Bankston v. Warbington, 319 Ga. App. 821, 822-823 (2) (738 SE2d 656) (2013).

At the September 2012 trial on the father’s petition to change custody, the trial court heard testimony from witnesses, including the child’s guardian ad litem, that the mother had moved four or more times after leaving Georgia, each requiring a change in schooling arrangements and one occurring during the daughter’s summer visitation with her father, and that the mother had failed to give the father sufficient notice of these relocations. Evidence at the hearing described the July 2011 mishap at LAX and showed that the mother discouraged the daughter from making friends in her neighborhood, deprived the father of meaningful telephone or teleconferencing contact, and disrupted therapy sessions by discouraging the daughter from acknowledging her father and not allowing the daughter to speak for herself. Evidence also showed that the mother’s disdain for the father was damaging the daughter’s relationship with him. On October 11,2012, and citing OCGA § 19-9-3 (a) (3) (N), the trial court held that because “the only antidote to the alienating behaviors of the [m]other is to allow the child to be immersed in the [father’s [household] for a period of time,” it was “in the best interest of the child to award primary physical custody of the child to the [f]ather for a period of 18 months, to commence at the end of her scheduled winter vacation time with the [m]other in 2012,” until one week before the start of the child’s 2014-2015 school year, when the mother would regain primary physical custody. The trial court also awarded child support from the mother to the father in the amount of $1,170 per month for the period of his primary custodianship and from the father to the mother in the amount of $890 per month “commencing] September 1, 2014,” by which time custody would have returned to the mother. The court reserved the issue of fees.

In the weeks following the entry of this October 2012 judgment, the mother filed at least six different motions, none of which she designated for inclusion in the appellate record: a motion for new trial; motions for reconsideration of three of the trial court’s orders, including its final judgment, on the basis in part of “newly discovered evidence” as to the father’s drinking alcohol “at various local bars and restaurants”; a motion to provide the child with “a Healthy Allergy Free Environment”; a motion for entry of an order regarding reimbursement of medical expenses; and a motion to correct a child support worksheet. After a hearing, the trial court denied the motion for new trial, noting as it did so that the mother had withdrawn her motion for reconsideration based on newly discovered evidence.

On January 24, 2013, the mother, who had retained new counsel Lisa West, moved to recuse the judge presiding over the case on the ground that the judge had previously recused herself from cases in which West was involved. On February 7,2013, the judge granted the mother’s motion to recuse, but noted the court’s “grave[ ] concern[ ] at the prospect of creating a situation in which any litigant before it who has been disappointed with an interim decision can try their luck with another [jjudge simply by retaining Ms. West.” On October 4, 2013, the mother again moved for contempt against the father on grounds including that the father had refused to allow the mother to have lunch alone with the child.

A hearing on all pending post-trial matters was held on October 14, 2013. On November 1, the trial court found that a number of the mother’s filings, including the October 2013 contempt motion, had been “frivolous and vexatious” and awarded the father $9,362.50 in attorney fees. After the docketing of this appeal and its cross-appeal in this Court, the father moved this Court for emergency supersedeas on the grounds that the trial court erred when it issued the self-executing provision returning custody to the mother in the summer of 2014. We granted the father’s emergency motion and ordered the parties and the trial court not to observe the self-executing change-of-custody provision pending our final disposition of these appeals.

Case No. A14A1514

1. On the first appeal, the mother argues that the trial court abused its discretion when it modified custody in favor of the father as of January 2013. We disagree.

A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child.

Lynch v. Horton, 302 Ga. App. 597, 600 (4) (692 SE2d 34) (2010) (citation and punctuation omitted); see also OCGA § 19-9-3 (b) (trial court may modify custody “based upon a showing of a change in any material conditions or circumstances of a party or the child”); Weickert v. Weickert, 268 Ga. App. 624, 627 (1) (602 SE2d 337) (2004) (trial court is not required to find a material change for the worse in order to modify custody). A determination that there has been a material change in condition supporting a modification of custody will be affirmed absent an abuse of discretion, and “[w]here there is any evidence to support the trial court’s ruling, a reviewing court cannot say there was an abuse of discretion.” Vines v. Vines, 292 Ga. 550, 552 (2) (739 SE2d 374) (2013) (affirming trial court’s denial of motion to modify visitation rights as supported by some evidence).

The mother argues that the trial court’s finding regarding the best interests of the child under OCGA § 19-9-3 (a) (3) (N) as to the mother’s unwillingness “to facilitate and encourage a close and continuing parent-child relationship” between the child and the father resulted in an erroneous disregard of other factors also included in OCGA § 19-9-3 (a) (3). This contention misreads the statute.

OCGA § 19-9-3 (a) (2) provides that a judge considering a custody-issue “may take into consideration all the circumstances of the case ... in determining to whom custody of the child should be awarded,” and that “[t]he duty of the judge . . . shall be to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness and to make his or her award accordingly.” (Emphasis supplied.) Consistent with this direction that the trial court’s consideration of relevant evidence be discretionary, OCGA § 19-9-3 (a) (3) specifies that “[i]n determining the best interests of the child, the judge may consider any relevant factor including, but not limited to” a list of seventeen factors, including subsection (a) (3) (N) — “[t]he willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.” (Emphasis supplied.) On its face, then, OCGA § 19-9-3 (a) authorizes a trial court to do what this court did — that is, to engage in a discretionary weighing of evidence as to any relevant factor listed in subsection (3) before reaching a final determination as to custody.

It is equally plain that the evidence at the hearing supported the trial court’s determination that custody was properly modified, at least as of January 2013, in favor of the father. In Viskup v. Viskup, 291 Ga. 103 (727 SE2d 97) (2012), the Supreme Court of Georgia affirmed a trial court’s transfer of primary physical custody from a father to a mother when the mother’s circumstances had improved since the parties’ divorce and the father had been held in contempt for violation of a visitation order and had taken steps to undermine the mother, including sending misleading letters to federal and state officials. Id. at 105 (2). The Court held that “[s]ince there is evidence to support the trial court’s award of custody of the child to one fit parent over the other fit parent, we cannot say the trial court abused its discretion” in ordering the change in custody. Id. (citation omitted).

Here, likewise, the record before the trial court included evidence and findings that although both parties were capable of providing for the child, the mother had sufficiently undermined the child’s relationship with the father to justify a modification of primary physical custody in favor of the father for at least 18 months as “in the best interest of the child.” Because this determination was supported by some evidence, we cannot say that the trial court abused its discretion when it made this modification of custody. Viskup, 291 Ga. at 105 (2); Vines, 292 Ga. at 552 (2); compare Cousens v. Pittman, 266 Ga. App. 387 (597 SE2d 486) (2004) (reversing trial court’s modification from sole custody of a child in the mother to joint custody with the father when “no factual support was given” for the court’s finding that a material change of circumstances had occurred).

Case No. A14A1S15

On cross-appeal, the father asserts that the trial court erred when it (1) included the self-executing change of custody to take effect in the summer of 2014 in its October 2012 order, (2) imposed child support payments on the father as of the date of the self-executing change of custody, and (3) failed to address the father’s request for attorney fees and for reapportionment of the guardian ad litem’s fees.

2. We first address the father’s assertion that the trial court erred when it included a self-executing change of custody in favor of the mother effective 18 months after its award of primary physical custody to the father, which took effect in January 2013.

In Scott v. Scott, 276 Ga. 372, 377 (578 SE2d 876) (2003), the Supreme Court of Georgia held that a self-executing change of custody designed to take effect on a “triggering event” such as remarriage or relocation violates OCGA § 19-9-3 (a) (2), whichrequires that a trial court exercise its discretion concerning a change in custody in light of the child’s best interests as evaluated at the time of the proposed change. Id. at 375-377 (footnote omitted); see also Wrightson v. Wrightson, 266 Ga. 493, 496 (3) (467 SE2d 578) (1996). Provisions that do not take account of the best interests of the child at the time of a triggering event “are utterly devoid of the flexibility necessary to adapt to the unique variables that arise in every case, variables that must be assessed in order to determine what serves the best interests and welfare of a child.” Scott, 276 Ga. at 375. Thus “self-executing change of custody provisions are not rendered valid merely because the initial award of custody may have been based upon the child’s best interests.” Id. at 376. Rather, “the factual situation at the time the custody modification is sought” should determine “whether a change of custody is warranted.” Id. (citations and footnote omitted).

As the mother herself conceded below, the self-executing change in custody included in the trial court’s October 2012 order failed to provide for “a determination whether the custody change is in the best interest of the [child] at the time the change would automatically occur[.]” Scott, 276 Ga. at 377. As such, it “violates [this State’s] public policy as expressed in OCGA § 19-9-3” that a trial court take into account “the factual situation at the time the custody modification is sought,” with the court’s “paramount concern” always remaining “the best interests and welfare of the minor child.” Id. at 375-377. Because the self-executing change-of-custody provision is void, we reverse that portion of the trial court’s order returning custody to the mother in June 2014. Id. at 377 (reversing denial of party’s motion to strike self-executing change in custody provision from parties’ divorce decree); see also Dellinger v. Dellinger, 278 Ga. 732, 736 (609 SE2d 331) (2004) (reversing trial court’s judgment as to visitation “with the direction that the trial court strike [a] self-executing provision” from a divorce decree).

3. The mother did not request either the self-executing change in custody or a child support award from the father, and the trial court’s award of child support from the father to the mother as of September 2014 was made in contemplation of the self-executing change in custody. Given our holding in Division 2 that the self-executing change in custody provision is void, we must also reverse the trial court’s prospective modification of child support payments from the father to the mother effective September 2014. The trial court’s original child support award of $1,170 per month from the mother to the father therefore stands until properly modified. See Robertson v. Robertson, 266 Ga. 516, 518 (1) (467 SE2d 556) (1996) (child support award may be modified only prospectively, pursuant to a modification action under OCGA § 19-6-19).

4. The father also argues that the trial court erred when it failed to address his claim for attorney fees and costs, including those accumulated before and through the trial held in September 2012. We agree.

The record shows that on October 19, 2012, the father submitted a letter brief detailing his claim for fees and guardian ad litem costs incurred before and through the trial held in September 2012. See OCGA § 9-15-14 (e) (fees “may be requested by motion at any time during the course of the action but not later than 45 days after the final disposition of the action”). The first judge assigned to the case recused herself in February 2013 before ruling on this motion. On September 23, 2013, the father again moved for fees and costs under OCGA §§ 19-9-3 and 9-15-14, referring as he did so to the letter brief of October 2012. This motion asked for an award of a “reasonable portion” of the $46,892.62 spent in fees and costs before entry of the court’s final judgment of October 2012 as well as those incurred since that judgment. After the post-trial hearing held on October 14, 2013, the trial court awarded the father attorney fees in the amount of $9,362.50, but limited its discussion of the mother’s “frivolous and vexatious” pleadings and motions to those taking place on or after October 31, 2012 — that is, some weeks after trial.

OCGA § 19-9-3 (g) provides in relevant part:

Except as provided in Code Section 19-6-2 [concerning alimony and divorce proceedings], and in addition to the attorney’s fee provisions contained in Code Section 19-6-15 [concerning child support payment awards], the judge may order reasonable attorney’s fees and expenses of litigation, experts, and the child’s guardian ad litem and other costs of the child custody action and pretrial proceedings to be paid by the parties in proportions and at times determined by the judge. Attorney’s fees may be awarded at both the temporary hearing and the final hearing. . . .

(Emphasis supplied.) On its face, this statute authorizes a trial court to award a party to a custody action both “reasonable attorney’s fees and expenses of litigation,” including a child’s guardian ad litem costs, and contemplates that such an award could include fees and costs incurred in the course of “pretrial proceedings.” Likewise, OCGA § 9-15-14 (b) authorizes the recovery of

... reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct .... As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.

(Emphasis supplied.)

Decided April 13, 2015.

Moss & Rothenberg, Robert A. Moss; Miles Patterson Hansford Tallant, Jennifer D. Patterson; The West Firm, Lisa Y. S. West, for appellant.

Kupferman & Golden, Gregory D. Golden, for appellee.

The trial court’s order of November 1, 2013, held that a number of the mother’s post-trial motions were “frivolous and vexatious,” but did not mention or rule on the father’s long-standing request for fees and costs incurred up to and including trial. The trial court was authorized to award such fees and costs, which were requested in writing well before the October 2013 post-trial hearing, and erred to the extent that it failed to consider the father’s request as to them. We therefore vacate the trial court’s order of November 1, 2013, and remand for further proceedings consistent with this opinion, including an evidentiary hearing on the father’s request for reasonable fees and costs incurred up to and including trial. See Unifund CCR Partners v. Mehrlander, 309 Ga. App. 685, 687-688 (710 SE2d 882) (2011) (vacating an award of fees made under OCGA § 9-15-14 and remanding with direction to “(1) reconsider the award of attorney fees and litigation expenses, (2) provide, if necessary, an explanation of the statutorybasis or bases for any award given under OCGA § 9-15-14 (a) and/or (b), as well as any findings of facts and conclusions of law necessary to support such an award, and (3) enter a new judgment from which the losing party may appeal”) (footnote omitted).

Judgment affirmed in Case No. A14A1514. Judgment reversed in part and vacated in part, and case remanded with direction in Case No. A14A1515.

Barnes, P. J., and Boggs, J., concur.

       When the daughter told the mother over the phone from the airport that she “thought [the mother] wanted to see [her],” the mother replied that she was not coming.

       OCGA § 19-9-3 (a) (3) provides that a trial court considering the best interests of a child in a custody matter “may consider any relevant factor including, but not limited to... (N) [t]he willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child[.]”

       A self-executing change of custody might be justified when, absent any finding that either parent is unfit, a child 14 years or older exercises his or her right under OCGA § 19-9-3 (a) (5) to choose which parent to live with. Weaver v. Jones, 260 Ga. 493, 494 (3) (396 SE2d 890) (1990), citing Pearce v. Pearce, 244 Ga. 69 (257 SE2d 904) (1979). Neither parent has argued that the child at issue is of sufficient age to activate this exception.


author: BARNES, Presiding Judge.

text:
    A14A1783.
    A14A2023.
    ZAMUDIO v. THE STATE. GONZALEZ v. THE STATE.
    (771 SE2d 733)
   BARNES, Presiding Judge.

Antonio Jesus Zamudio and Carlos Gonzalez were jointly indicted, tried, and convicted of attempted murder, aggravated assault, aggravated battery, and a violation of the Georgia Street Gang Terrorism and Prevention Act, OCGA § 16-15-1 et seq. The attempted murder, aggravated assault, and aggravated battery charges served as the predicate offenses for the criminal street gang count pursuant to OCGA § 16-15-4(a),whichmakesit“unlawfulforanypersonemployed by or associated with a criminal street gang to conduct or participate in criminal street gang activity through the commission of any offense enumerated in paragraph (1) of Code Section 16-15-3.” Both men appeal the denial of their respective motions for new trial, asserting that the evidence was insufficient to affirm the gang activity convictions.

Zamudio also contends that the indictment for aggravated assault was void and that the trial court erred in denying his motion to sever, in admitting testimony about pictures seen on the Internet, in failing to give his requested charge on simple assault, and in merging the aggravated battery conviction into the attempted murder conviction instead of vice versa. We conclude that the evidence was sufficient and find no merit in any of Zamudio’s enumerations of error except as to the merger issue. Thus, we affirm the judgments of conviction in both cases. We agree with Zamudio, however, that the trial court erred in merging his aggravated battery conviction into his attempted murder conviction, and thus vacate both appellants’ sentences in part and remand their cases for resentencing.

1. Construed in the light most favorable to the verdict, the evidence at trial established that Gonzalez, Zamudio, and the victim grew up in a neighborhood that was known to be the territory of a local street gang, the Sureños 13. The victim moved in 2009 to a neighborhood called “Little Mexico,” which was known to be the territory of a rival gang, the Tiny Winos. Zamudio and Rosalio Jacobo went to the victim’s house in April 2011, called him out, and asked him to “hang out” with them, but the victim said no and went back inside his house. Zamudio and Jacobo were not happy about the victim’s response, which Zamudio described as “messed up.”

A few days later, Zamudio called the victim, who knew it was Zamudio calling from the caller I.D. and declined to answer. The victim walked outside around 1:00 a.m. to smoke a cigarette, and Zamudio, Gonzalez, and Jacobo approached his porch, calling for the victim to come out to them. The victim “had a bad feeling,” but they said a mutual friend was with them and wanted to talk. The victim had not seen the friend in about two years, so he came down from his porch to say hello. The friend and victim shook hands and had friendly conversation, then Gonzalez approached the victim saying “gang stuff” about “Sur 13” and arguing about Sureños and Winos. Gonzalez said he thought the victim wanted to call the police and get him in trouble, and then Gonzalez punched the victim. The victim knocked Gonzalez down, and their mutual friend pulled them apart. The friend thought the fight was over and got in his car to leave.

Zamudio told the victim that he had changed and should not “be like how he was on Friday and stuff” because they had grown up together. Gonzalez ran up and punched the victim again, and as they struggled, Zamudio joined in, kicking the victim two or three times. The friend saw that the fight had re-ignited and returned to the scene, because it was no longer one-on-one since Zamudio had joined Gonzalez in fighting the victim.

The victim testified that after he knocked Gonzalez down the second time, Gonzalez got up and said he had a gun, but the victim’s glasses had been knocked off so he could not see what was in Gonzalez’s hand. Someone else said “no, no” in response to Gonzalez’s threat about the gun, then Zamudio handed Gonzalez a box cutter and Gonzalez slashed the victim’s throat. After Gonzalez cut the victim’s throat, the victim wrestled the cutter away and tried to toss it, but Zamudio got on top of the victim, took the cutter away, and gave it back to Gonzalez. After the fight ended, the friend saw Gonzalez “reach down into his pant leg,” retrieve the box cutter, and put it in his sock. Jacobo saw something drop and heard a “metal kind of sound.” The friend gave the victim his shirt, told him to wrap it around his neck, and drove him to the hospital, where the victim received multiple stitches to close the wound in his neck.

Although neither Zamudio nor Gonzalez challenges the sufficiency of the evidence as to the charges of attempted murder, aggravated assault, and aggravated battery, we conclude that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that they were guilty of those crimes. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Zamudio and Gonzalez do challenge the sufficiency of the evidence as to their conviction for gang activity. The indictment charged them with the offense of

PARTICIPATION IN CRIMINAL GANG ACTIVITY for that said accused... did, being associated with a criminal street gang, to wit: Sureños 13, participate in criminal gang activity through the commission of ... a criminal offense . . . that involves violence, to wit: aggravated assault, aggravated battery, battery and simple battery when said accused possessed a cutting device in the presence of [the victim], cut [the victim’s] neck, grabbed [the victim] and struck [the victim], contrary to the laws of said State, the good order, peace and dignity thereof.

To prove that Gonzalez and Zamudio violated the Street Gang Act as charged, the State was required to show three things: (1) that they were, in fact, associated with a “criminal gang,” (2) that they committed a predicate act of “criminal gang activity,” namely the aggravated assault, aggravated battery, battery, and simple battery upon the victim, and (3) that the commission of the predicate act was intended to further the interests of the “criminal gang.” See Rodriguez v. State, 284 Ga. 803, 806-807 (1) (671 SE2d 497) (2009). See also OCGA §16-15-4 (a).

While Gonzalez admitted being a member of Sureños 13, he argues that the State failed to prove that his assault on the victim was intended to further the interests of the gang. Zamudio argues the evidence was insufficient to prove he was even associated with Sureños 13.

OCGA § 16-15-3 (2) defines “criminal street gang” as “any organization, association, or group of three or more persons [that] engages in criminal gang activity” as defined by subsection (1) of the statute. “Criminal gang activity” includes the commission or attempted commission of certain offenses, including any crime “that involves violence, possession of a weapon, or use of a weapon.” OCGA § 16-15-3 (1) (J). Finally, OCGA § 16-15-4 (a) makes it unlawful to participate in criminal gang activity through the commission of any of the offenses listed in OCGA § 16-15-3 (1), which include racketeering, stalking, rape, aggravated sodomy, possessing or distributing dangerous instrumentalities such as knives and guns, posting gang-related graffiti, or committing any criminal offense involving violence or the possession or use of a weapon, among other things.

The State may prove the existence of a criminal gang “by evidence of a common name or common identifying signs, symbols, tattoos, graffiti, or attire or other distinguishing characteristics, including, but not limited to, common activities, customs, or behaviors.” OCGA § 16-15-3 (2). A detective assigned to the Conasauga Safe Streets Task Force, operated by the FBI to control gang activity in the area, testified both as an expert on gang recognition and as to the facts he uncovered through his investigation of this case. He explained the difference between “traditional” gangs, which have a structured hierarchy with a leader and regular meetings where members pay dues, and “hybrid” gangs, which branched off of the traditional gangs and had no set hierarchy or rules.

The detective explained that Sureños 13 was a hybrid gang that initially developed in the California prison system from a traditional gang and then migrated into other states, including Georgia. Three major hybrid Hispanic gangs operated in the Dalton area: Sureños 13, Tiny Winos, and Fifth Avenue. Each gang operated in its own territory. Sureños 13 territory was theAmberfield subdivision, where Zamudio, Gonzalez, and the victim grew up, and Tiny Winos territory, or “Wino Land,” was located in the south end of the county. The Little Mexico area where the victim lived was a Tiny Winos “hangout.”

The detective also described in detail the symbols and colors that indicated someone’s gang membership. He further testified that the “driving force” behind the local gangs was “to be top dog, to be the biggest and baddest,” which was accomplished by “showing force” and “taking on all challengers.” For example, he explained, if a gang member confronts a rival gang member, by saying something as simple as, “Throw down,” or “I’m Sur 13. What’s up?,” the rival must “act and ... show heart” to earn respect from his gang. An individual who is alone and is confronted must still “show who [he is] in order to keep [his] reputation. Because word gets around quickly.”

(a) Zamudio argues that the State failed to prove his association with Sureños 13 beyond a reasonable doubt, having shown only that he was with Gonzalez, who was associated with the gang. Zamudio correctly notes that the fact that he grew up and still lived in a neighborhood that was Sureños 13 territory does not, by itself, establish his association with the gang, nor does the fact that he was with admitted gang member Gonzalez when he returned to the victim’s house. However, the circumstantial evidence about growing up and still living in Sureños 13 territory was relevant to whether he was a gang member, as was the detective’s testimony that he had seen 40 to 50 photographs from about 2006 to 2008 that showed Gonzalez, Zamudio, Jacobo, and others in front of the Amberfield neighborhood sign while Gonzalez and another man made gang signs for Sureños 13. Zamudio admitted that he had kicked the victim during the fight, which Gonzalez started after talking about “gang stuff” and the two rival gangs, and as discussed earlier, the State introduced evidence that Zamudio handed Gonzalez the box cutter that slit the victim’s throat. The evidence presented was sufficient to authorize the jury to find that Zamudio was a member of Sureños 13. See Rodriguez, 284 Ga. at 809 (participation with others in criminal gang activity implies knowledge of gang activities and intent to further gang’s criminal purposes).

(b) Gonzalez admitted being a Sureños 13 member but argues that the State failed to prove that the fight was undertaken to further the gang’s interest. He contends that the only evidence related to the gang was the victim’s testimony that Gonzalez was talking about “gang stuff” and mentioned Sureños 13 before instigating the fight, and asserts that this evidence is insufficient to establish that he acted “on behalf of” the gang when he fought with the victim.

The victim, however, was not the only one who testified that Gonzalez began talking about the gang before he started fighting the victim. After Gonzalez and Zamudio lured the victim from his porch by saying the mutual friend wanted to talk to him, the friend testified that the five of them were standing around when Gonzalez started arguing about “gang-related stuff, about Sureños and Winos,” and then began the fight.

Gonzalez told the detective later that the victim did not “gang bang anymore” but that the victim used to be a member of the Tiny Winos, and the victim testified that when he was in middle school he had been “put... down as affiliated” with the Tiny Winos because he had contacts with members of that gang. While Gonzalez denied going to Little Mexico on a “gang banger” mission, saying that if he had, he would have brought his gang with him, he went to the victim’s house attended by two other men in addition to the mutual friend.

As noted, the detective testified that gangs like Sureños 13 placed great importance in being “the biggest and the baddest” and by showing force, and that a gang member had to respond to being disrespected by the member of another gang or his reputation would suffer. When Zamudio and Jacobo went to the victim’s house to ask him to “hang out” with them, the victim, who had been associated with the Tiny Winos and lived in Tiny Winos territory, said no and went inside his house. Zamudio and Jacobo did not like the victim’s response to their overture.

The detective testified that the term “jumped” was often used to indicate two or three people fighting one person, and that “jumped would be in itself a gang act. It’s often used by gang members to describe what they do to other people.” A few days after the unsuccessful overture toward the victim who was previously affiliated with a rival gang, Zamudio, Jacobo, and Gonzalez lured the victim from his porch, Gonzalez began talking about Sureños 13 and Tiny Winos, and then he punched the victim. During a lull in the fight, Zamudio chastised the victim for his response to Zamudio’s previous overture to hang out, and Gonzalez hit the victim again. This time Zamudio joined in. The mutual friend, who was in his car preparing to leave, got out and came back to help the victim because the fight was no longer one-on-one.

To sustain a conviction for “criminal gang activity” under OCGA § 16-15-4 (a), which prohibits gang members from participating in gang activity by committing one of the enumerated offenses such as aggravated assault, the State must show “some nexus between the enumerated act and an intent to further ... gang activity.” (Citation and punctuation omitted.) In the Interest of C. P., 296 Ga. App. 572, 575 (675 SE2d 287) (2009). Simply being a gang member and committing the offense is not enough. But here, the State introduced evidence from which a jury would be authorized to find a nexus between the defendants’ actions in seeking out and beating up the victim and their intent to further gang activity by ensuring that the gang responded strongly to the victim’s disrespect of a gang member’s offer of association. See Wolfe v. State, 273 Ga. 670, 674 (4) (d) (544 SE2d 148) (2001) (State linked evidence of gang activity to motive for crime and hierarchy of gang); In the Interest of X. W., 301 Ga. App. 625, 629-630 (3) (688 SE2d 646) (2009) (evidence juvenile told detective he began fighting rival gang member to get “his rank back up” after a “disrespect or violation issue” sufficient to establish participation in gang activity).

Accordingly, we find that the evidence presented was sufficient to authorize a reasonable jury to conclude that Gonzalez participated in criminal gang activity that furthered the interests of a criminal gang. In the Interest of X. W., 301 Ga. App. at 629-630 (3).

3. Zamudio contends that the trial court erred in denying his motion to sever his trial from Gonzalez’s and in failing to sua sponte give a limiting instruction when similar transaction testimony was introduced against Gonzalez. The State never introduced the similar transaction evidence, however, and therefore this enumeration fails.

The State filed a notice of its intent to introduce similar transaction testimony related to a prior offense in which Gonzalez was accused of six counts of criminal trespass and violating the Street Gang Terrorism and Prevention Act, and that he pled guilty to the criminal trespass charges. During the similar transaction hearing before trial began, the State proffered that evidence would show that the criminal trespass charges arose after Gonzalez slashed the tires on six different vehicles, that he pled guilty to those charges, and that he had admitted being a member of Sureños 13 and that he was with other gang members when he slashed the tires. Additionally, both the former and present offenses involved a cutting instrument. In the present case, the issues were whether Gonzalez was a member of the gang and whether the predicate acts were committed in furtherance of that gang membership, and allowing the similar transaction evidence would assist the State in proving knowledge and intent in the present case. Zamudio argued that if the court granted the motion, then it should sever his trial from Gonzalez’s because such evidence “would irreparably harm Mr. Zamudio’s defense in this case.”

In ruling that the similar transaction evidence was admissible, the trial court noted that Gonzalez had argued in his opening statement that the activity at issue in the current trial was not gang activity, and. that, based on its proffer, the State would be able to establish that the similar transaction evidence was offered “for the purpose of establishing elements of this particular crime in this particular case that could otherwise be non-gang activity.” The trial court further held that the evidence “tends to prove this element [of gang activity for] the offense charged in this particular case, that it cannot easily be established by other evidence, and that the prejudicial effect does not outweigh the propriety of using the evidence.” The court also denied Zamudio’s motion to sever.

(a) Motion to sever. Defendants who are jointly indicted for crimes in which the State does not seek the death penalty “may be tried jointly or separately in the discretion of the trial court.” OCGA § 17-8-4 (a). We review the trial court’s denial of a motion to sever for an abuse of discretion. Rhodes v. State, 279 Ga. 587, 590 (3) (619 SE2d 659) (2005).

In ruling on a severance motion, the court should consider: (1) the likelihood of confusion of the evidence and law; (2) the possibility that evidence against one defendant may be considered against the other defendant; and (3) the presence or absence of antagonistic defenses. And 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 that a joint trial would lead to prejudice and a consequent denial of due process.

Nwakanma v. State, 296 Ga. 493, 498 (3) (768 SE2d 503) (2015).

“In this case, there was little likelihood of jury confusion, as there were ultimately only two defendants and there was no difference in the law applied to either of them.” Kitchens v. State, 296 Ga. 384, 387 (3) (768 SE2d 476) (2015). Further, evidence that Gonzalez was a gang member would have been admissible against Zamudio in a separate trial under OCGA § 16-15-9, which provides that “[t]he commission of any offense enumerated in paragraph (1) of Code Section 16-15-3 by any member or associate of a criminal street gang shall be admissible in any trial or proceeding for the purpose of proving the existence of the criminal street gang and criminal gang activity.”

Finally, Zamudio cannot show prejudice because the State did not introduce any evidence about the similar transaction. Instead, the State called a detective to the stand and asked him a total of four questions, eliciting the response that in 2010, Gonzalez had admitted being a Sureños 13 gang member. Neither defendant cross-examined the witness. Not only was this not similar transaction evidence, it was also cumulative of evidence from the detective who investigated the crime at issue, who also testified that Gonzalez had always admitted he was a member of the gang. Thus we find no error in the trial court’s denial of Zamudio’s motion to sever.

(b) Limiting jury charge. Absent the introduction of similar transaction evidence, the trial court could not have erred in failing to give a contemporaneous limiting instruction. Further, even if the State had introduced similar transaction evidence, a trial court commits no error in failing to give limiting instructions absent a request to do so. State v. Belt, 269 Ga. 763, 764 (505 SE2d 1) (1998). Accordingly, we find no merit to this enumeration.

4. Zamudio argues that the trial court erred in allowing the investigating detective to testify over objection about photographs he had seen posted on the Internet site Myspace several years before the assault at issue in this case. We review a trial court’s evidentiary rulings for abuse of discretion. Hinton v. State, 280 Ga. 811, 816 (4) (631 SE2d 365) (2006).

Zamudio filed a motion in limine, seeking to bar the detective from testifying that he had seen pictures of Zamudio “while surfing the Internet” unless the State produced the images themselves. The trial court deferred ruling until the issue arose at trial.

The detective testified that when the FBI gang task force started in 2005 and 2006, local street gangs often posted information online about where they were going to be that night. It was commonplace for one gang to “say something derogatory to another gang and the other gang would say, Well, meet me here at the mall at this time,’ ” so task force members would go to that location to make sure the gangs did not confront each other. The detective testified that he had seen these postings on the website Myspace, which the gangs did not use much any more, favoring Facebook and Twitter, and when he attempted to look for them, they were no longer available.

When the State asked the detective whether he had seen “photographs that concerned Amberfield,” Zamudio objected, arguing that he anticipated that the detective was going to testify that he had seen Zamudio and possibly Gonzalez also “in some sort of a visual image,” but that without requiring the State to establish a foundation for the admission of the actual images, Zamudio was unable to test their authenticity. The trial court overruled the objection, and the detective testified that between 2006 and 2008, he saw 40 to 50 photographs of people posing in front of the brick Amberfield Subdivision sign, including Zamudio, Jacobo, Gonzalez, and a man named Flores, with the latter two making Sureños 13 “gang signs.”

Zamudio argues on appeal that the State should have been required to produce the photographs or web pages themselves under the best evidence rule, while conceding that former OCGA § 24-5-4, which was applicable to this trial, did not generally apply to photographs or recordings. Assuming that the objection made at trial was sufficient to raise a best evidence objection, we find no error. Photographs were not considered writings under former OCGA § 24-5-4, and were therefore not subject to the best evidence rule. See Smith v. State, 236 Ga. 5, 8 (2) (222 SE2d 357) (1976) (holding that the best evidence rule did not apply to a photograph of a police lineup).

Zamudio also argues that the detective’s testimony was inadmissible hearsay. It was not. See Smoot v. State, 316 Ga.App. 102, 108 (3) (729 SE2d 416) (2012) (testimony describing photographs on web pages was not hearsay).

5. Zamudio asserts that Count 3 charging him with aggravated assault is fatally defective because it fails to allege the elements necessary to charge him with a crime. The count alleged that Zamudio committed the crime of aggravated assault

for that the said accused [on a particular date in a particular county] did commit an act, to wit, possess a cutting device in the presence of [the victim], said device being an object which when used offensively against another person is likely to result in serious bodily injury, which placed... [the victim] in reasonable apprehension of immediately receiving a violent injury. . . .

Zamudio argues that the count is insufficient because it charges him only with possessing a cutting device and not with using it in some manner that placed the victim in reasonable fear of violent injury.

Under the Code, aggravated assault has two essential elements: (1) an attempt to commit a violent injury, or an act that places another in reasonable apprehension thereof, and (2) that the assault was aggravated by either (a) an intention to murder, rape or rob, or (b) the use of a deadly weapon.

Smith v. Hardrick, 266 Ga. 54, 55 (2) (464 SE2d 198) (1995) (indictment fatally deficient because it charged defendant only of placing his hands around victim’s neck). The aggravated assault count against Zamudio charges him with the precise elements of the crime as they are defined by OCGA §§ 16-5-20 (a) (2) and 16-5-21 (b) (2), “and was sufficiently definite to advise [him] of what he must be prepared to confront.” Johnson v. State, 286 Ga. 432, 434 (687 SE2d 833) (2010).

6. Zamudio asserts that the trial court erred in failing to give his requested jury charge of simple assault as a lesser included offense of aggravated assault. Simple assault is an element of aggravated assault, with the aggravating element being the use of an offensive weapon. Adams v. State, 264 Ga. 71, 76 (9) (440 SE2d 639) (1994), overruled in part on other grounds in Carr v. State, 281 Ga. 43 (635 SE2d 767) (2006). Whether the trial court was required to give a requested charge on simple assault depends on the evidence. Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994); Pierce v. State, 301 Ga. App. 167, 174 (5) (687 SE2d 185) (2009). Zamudio argues that the jury could have found that Zamudio did not use the box cutter that sliced the victim’s neck offensively if the jury considered only the victim’s testimony that Zamudio took the box cutter away from the victim. Similarly, he argues, the jury could have believed that Zamudio possessed the box cutter at some point during the fight because he was trying to break up the fight rather than because he wanted to use it against the victim.

[A] written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense. But . . . where the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense.

Gilliam v. State, 237 Ga. App. 476, 478-479 (2) (517 SE2d 348) (1999).

Here, no evidence supports Zamudio’s hypothetical version of how the jury might conclude he was guilty of simple assault rather than aggravated assault or nothing. If he possessed the box cutter only when he took it away from the victim while breaking up the fight, then he was not guilty of any form of assault. This enumeration is without merit.

7. Finally, Zamudio contends that the trial court erred in merging his aggravated battery conviction into his attempted murder conviction, instead of merging the murder into the battery. He argues that both of these convictions were based on the same conduct, possessing and using a box cutter to cut the victim’s neck. The only difference between the two crimes is that attempted murder requires a less serious injury than aggravated battery, because the crime of attempted murder does not require the State to prove any injury to the victim.

Whether offenses merge is a legal question, which we review de novo. Louisyr v. State, 307 Ga. App. 724, 730 (2) (706 SE2d 114) (2011). Under OCGA § 16-1-6 (2), one crime is included in another if the former “differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest... suffices to establish its commission.” Our Supreme Court has held that the crime of

battery, which prohibits the intentional infliction of bodily injury, is included in a crime such as murder, which prohibits the intentional infliction of more serious bodily injury, i.e., death, despite the distinction between these two injury elements. Similarly, it is clear that the only difference between aggravated battery and murder is that the former requires a less serious injury to the person of the victim, as the injury to a bodily member specified in the aggravated battery statute is obviously less serious than death. Therefore, . . . convictions for both offenses established by the same conduct are prohibited by OCGA § 16-1-6 (2).

Ledford v. State, 289 Ga. 70, 74 (1) (709 SE2d 239) (2011). See Soilberry v. State, 289 Ga. 770, 773 (3) (716 SE2d 162) (2011).

Here, the trial court did merge the two offenses, but it merged the conviction that required the greater injury — aggravated battery — into the conviction that required the lesser injury — attempted murder — instead of the other way around. The State concedes that, under the rationale of Hernandez v. State, 317 Ga. App. 845, 852 (3) (733 SE2d 30) (2012), the attempted murder would merge into the aggravated battery because in Hernandez we determined that “attempted murder requires a less serious injury to the person, as personal injury is not a required element of attempted murder. See OCGA §§ 16-4-1, 16-5-1 (a).” Id. But the State further urges us to reconsider our holding in that case based on OCGA § 16-1-6 (2)’s direction to consider the severity of the risk of injury from the underlying offenses as well as the severity of the actual injury. Of course, the risk of injury from the crime of attempted murder is greater than the risk of injury from the crime of aggravated battery. We decline to revisit our holding in Hernandez, however, finding its analysis to be sound.

Accordingly, we must vacate Zamudio’s sentence for attempted murder and remand his case to the trial court for resentencing in accordance with this opinion.

Further, although Gonzalez did not enumerate as error the merger of his aggravated battery conviction into his attempted murder conviction, “a judgment of sentence is void where it imposes an illegal sentence, i.e., a sentence that the law does not allow, and... the illegality of such a judgment is not a waivable issue.” Hulett v. State, 296 Ga. 49, 54 (2) (766 SE2d 1) (2014) (sentence in which trial court erroneously merged convictions vacated even though neither party appealed sentencing errors). It is true that an appellate court has no duty “to scour the record searching for merger issues.” Nazario v. State, 293 Ga. 480, 487-488 (2) (c), (d) (746 SE2d 109) (2013). But

Decided April 13, 2015.

Michael R. McCarthy, J. Chris Matthews, for appellant (case no. A14A1783).

Tyler R. Conklin, James C. Bonner, Jr., for appellant (case no. A14A2023).

Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, J. Scott Helton, G. Jason Souther, Assistant District Attorneys, for appellee.

[w]here a case challenging criminal convictions is properly brought before a court and the court realizes, on its own or based on the defendant’s argument, that the record shows that certain convictions merged, to disregard that determination and allow the defendant to serve a sentence for a criminal conviction that has been identified as illegal and void would not comport with fundamental fairness and due process of law.

Id. We therefore also vacate Gonzalez’s sentence in part and remand his case for resentencing in accordance with this opinion.

Judgments of conviction affirmed, sentences vacated in part, and cases remanded.

Boggs and Branch, JJ., concur.

       While Jacobo testified he was not a Sureños 13 member, the detective testified that he had seen many pictures of Jacobo, Zamudio, Gonzalez, and others in front of the Amberfield subdivision sign while some of them made gang signs.