text:
    A16A0799.
    ARGO v. G-TEC SERVICES, LLC et al.
    (791 SE2d 193)
   Ray, Judge.

James Argo filed suit against G-Tec Services, LLC (“G-Tec”) and Keith Boyd asserting, inter alia, a claim for breach of contract. On the parties’ cross-motions for summary judgment, the trial court denied Argo’s motion and granted G-Tec’s motion. Argo appeals, contending that the trial court misapplied the rules of contract construction in interpreting the contract at issue. Finding no error, we affirm.

The record shows that Argo and G-Tec entered into an Employment Compensation Agreement (the “Employment Agreement”) on August 29, 2013. Pursuant to the Employment Agreement, Argo was provided with an initial six-month term of employment, but G-Tec retained the “right to terminate [the Employment Agreement] at any time during the [t]erm for any or no reason.” Argo’s responsibilities as an employee were to acquire new customers and manage G-Tec’s marketing efforts. As part of his compensation, Argo was to receive “[c]ommission on sales by Employee equal to 2% of the Company’s gross sales throughout the [t]erm.” During the term of the Employment Agreement, Argo made no new sales and secured no new clients for G-Tec. Disliking the terms of his employment, Argo offered to resign from his position. Consequently, on December 11, 2013, G-Tec notified Argo that his employment would terminate on December 15, 2013.

Following the termination of his employment, Argo filed the instant suit contending, inter alia, that G-Tec breached the terms of the Employment Agreement by failing to pay him commissions during his term of employment. He also contended that the Employment Agreement did not create an at-will employment and, because he was terminated without cause, his compensation should have continued after his termination for the remainder of the six-month term. On the parties’ cross-motions for summary judgment, the trial court found that Argo was not entitled to a commission under the Employment Agreement because he made no personal sales. The trial court further found that Argo’s contract was terminable at will and that Argo was not entitled to compensation for the remaining portion of the term after his employment was terminated. This appeal ensued.

1. Argo first argues that the trial court misapplied rules of contractual construction in interpreting the commissions clause of the employment agreement. Specifically, he contends that he was contractually entitled to receive commissions equal to two percent of G-Tec’s gross sales throughout the term even though he made no sales himself. We disagree.

“The construction of a contract is a question of law for the court. . . .’’OCGA § 13-2-1. The cardinal rule of contract construction is to ascertain the intention of the parties to the contract. OCGA § 13-2-3; Eckerd Corp. v. Alterman Properties, 264 Ga. App. 72, 76 (2) (589 SE2d 660) (2003). When construing contracts, there are three steps to ascertain the intent of the parties:

First, the court decides if the contract language is unambiguous, and if so the court enforces the contract’s clear terms. Second, if the contract is ambiguous, the court must apply the rules of contract construction to resolve the ambiguity. And third, if the ambiguity remains after use of the construction rules, the meaning of the contract must be decided by a jury.

(Footnote omitted.) Eckerd Corp., supra.

“The first rule that courts must apply when construing contracts is to look to the plain meaning of the words of the contract,” Ga. Real Estate Properties v. Lindwall, 303 Ga. App. 12, 14 (1) (692 SE2d 690) (2010) (footnote omitted), and “[i]t is a cardinal rule of contract construction that a court should, if possible, construe a contract so as not to render any of its provisions meaningless and in a manner that gives effect to all of the contractual terms.” (Citation and punctuation omitted.) Northwest Plaza v. Northeast Enterprises, 305 Ga. App. 182, 189 (1) (699 SE2d 410) (2010). “Words generally bear their usual and common signification; but technical words, words of art, or words used in a particular trade or business will be construed, generally, to be used in reference to this peculiar meaning.” OCGA § 13-2-2 (2). Furthermore, courts must favor a construction that upholds the contract in whole and in every part, and look at the whole contract in construing any part. OCGA § 13-2-2 (4). Courts should not render any language in a contract as superfluous, and “any construction that renders portions of the contract language meaningless should be avoided.” Atlanta Dev. v. Emerald Capital Investments, 258 Ga. App. 472, 478 (1) (574 SE2d 585) (2002), citing Deep Six, Inc. v. Abernathy, 246 Ga. App. 71, 74 (2) (538 SE2d 886) (2000).

Here, the Employment Agreement specifically identifies Argo as the “Employee,” and it provides that “Employee shall be entitled to... [c]ommission on sales by Employee equal to 2% of the Company’s gross sales throughout the [t]erm.” (Emphasis supplied.) The statement “on sales by Employee” clearly indicates that any commission would be premised on sales made by Argo. Accordingly, the plain language of the contract required Argo to make sales in order to obtain a commission. The second half of the clause, which states that such commission would be “equal to 2% of the Company’s gross sales[,]” merely indicates the amount of the commission Argo would have received had he made sales and became eligible for commission. As the commission clause is not ambiguous, the trial court must enforce the agreement according to the terms. See OCGA § 13-2-3; Atlanta Dev., supra at 477 (1). Therefore, we find that the trial court was correct in interpreting the clause to mean that Argo would only be entitled to a commission if he made sales during his employment. As Argo made no such sales during the operative time period of the Employment Agreement, the trial court correctly concluded that Argo was not entitled to any commission and that G-Tec was entitled to summary judgment on this issue.

2. Argo next contends that the trial court misapplied rules of contract construction in determining that the Employment Agreement was terminable at will and that Argo was not entitled to compensation after his termination. We disagree.

Section 2 of the Employment Agreement states:

The initial term of the Company’s employment of Employee hereunder shall commence as of the date of this Employee Agreement and shall terminate six (6) months thereafter (the “Initial Term”).... Notwithstanding the foregoing, Company shall have the right to terminate this Agreement at any time during the Term for any or no reason.

(Emphasis supplied.)

Decided September 15, 2016.

R. Douglas Lenhardt, for appellant.

Andersen, Tate & Carr, Robert D. Thomas, for appellees.

This is plain and unambiguous language which is susceptible to only one natural meaning. Interpreting the agreement as a whole, it is clear that Argo and G-Tec entered into an employment agreement with an initial six-month term which was terminable at will. And while a party may sue under a terminable-at-will employment agreement to recover compensation for services he rendered prior to the termination of his employment, “an employee cannot sue to enforce future performance of a terminable-at-will employment agreement.” E.D. Lacey Mills, Inc. v. Keith, 183 Ga. App. 357, 359 (2) (359 SE2d 148) (1987). Accord Stover v. Candle Corp. of America, 238 Ga. App. 657, 659 (2) (520 SE2d 7) (1999) (finding that a promise to pay future compensation under a terminable-at-will contract was not enforceable).

As the trial court correctly concluded that the Employment Agreement was terminable at will and that Argo is not entitled to any future compensation from G-Tec, the grant of summary judgment to G-Tec on this issue was proper.

Judgment affirmed.

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

       In the context of an employment contract, the ordinary meaning of the term “commission” is premised upon the employee selling something. See Black’s Law Dictionary (10th ed. 2014) (defining “commission” as “[a] fee paid to an agent or employee for a particular transaction, [usually] as a percentage of the money received from the transaction”). “[I]n construing contracts, dictionaries may be used to determine the meaning of a word or phrase.” (Footnote omitted.) Garrett v. Women’s Health Care of Gwinnett, 243 Ga. App. 53, 57 (3) (532 SE2d 164) (2000).


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A16A0891.
    THE STATE v. WALLACE.
    (791 SE2d 187)
   Ray, Judge.

Following a traffic stop, Charles Wallace was charged with possession of marijuana with intent to distribute (OCGA § 16-13-30 (j) (1)), driving with a suspended license (OCGA § 40-5-121 (a)), and improper lane change (OCGA § 40-6-48 (1)). Wallace filed a motion to suppress all evidence recovered during the search of his vehicle, challenging the basis for the traffic stop and alleging that law enforcement lacked probable cause to detain him and search his vehicle. The trial court granted the motion to suppress, however, on the basis that the State failed to establish venue at the pre-trial suppression hearing. The State appeals, contending that the trial court misapplied the law when it suppressed the evidence on that basis. For the reasons that follow, we reverse the trial court’s judgment and remand this case for further proceedings consistent with this opinion.

“When the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court’s application of the law to the undisputed facts.” (Citation omitted.) Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012).

The record shows that on August 27, 2015, two officers of the Atlanta Police Department initiated a traffic stop because the vehicle operated by Wallace made an abrupt and improper lane change without using its turn signal. As the two officers approached Wallace’s car, they smelled a strong odor of marijuana coming from inside the vehicle. During initial questioning, Wallace stated that he did not have a driver’s license, and a computer check of the identification information that Wallace provided to the officers revealed that his driver’s license had been suspended. Based on the officers’ detection of the odor of marijuana, Wallace’s vehicle was searched, and a large vacuum-sealed bag and several smaller sandwich bags containing marijuana, along with a digital scale, were found in a bookbag on the passenger side floorboard of his vehicle. Wallace’s person was also searched, and $365 in small denominations were found in his front pocket.

Wallace’s written motion to suppress was premised on the grounds that the officers lacked a reasonable basis for the traffic stop and lacked probable cause to detain him and search his vehicle. At the pre-trial hearing on the motion, the State presented evidence that was narrowly tailored for the trial court’s consideration of these issues. Although the State established that the traffic stop and the resulting search and seizure occurred in Atlanta on Martin Luther King, Jr. Drive, it is undisputed that the State did not attempt to establish venue in Fulton County.

At the conclusion of the pre-trial hearing, Wallace moved to have the evidence suppressed on the ground that the State did not establish venue. Apparently without addressing the issues raised in the written motion to suppress, the trial court suppressed the evidence and dismissed the case on the narrow basis that the State “failed to establish venue of this case within Fulton County” This appeal ensued.

1. The State argues that venue isa jurisdictional fact to be proven at trial, and that it has no bearing on the relevant issues of whether the officers had a reasonable basis for the traffic stop or whether the warrantless search of the vehicle was supported by probable cause. Accordingly, the State contends that the trial court erred in granting the motion to suppress on the basis of venue. We agree.

Georgia’s exclusionary rule, codified at OCGA § 17-5-30, provides for the suppression of evidence obtained from an unlawful search. See OCGA § 17-5-30 (a); Harvey v. State, 266 Ga. 671, 672 (469 SE2d 176) (1996); Boatright v. State, 225 Ga. App. 181, 183 (2) (483 SE2d 659) (1997). The exclusion of evidence is not a constitutional right; it is a judicially created remedy which acts as a deterrent to safeguard a person’s Fourth Amendment right against unreasonable searches and seizures. See U. S. Const. Amend. IV; Black v. Wigington, 811 F3d 1259, 1267 (III) (B) (11th Cir. 2016); Harvey, supra at 671; State v. Young, 234 Ga. 488, 491 (1) (216 SE2d 586) (1975).

Venue relates to the place of the trial because criminal actions are required to be tried in the county where the crime occurred, unless otherwise provided by law. See Ga. Const. of 1983, Art. VI, Sec. II, Par. VI; OCGA § 17-2-2 (a). Accordingly, venue is a jurisdictional fact and an element of the crime which the State must prove beyond a reasonable doubt at trial. See Twitty v. State, 298 Ga. 204, 206 (2) (779 SE2d 298) (2015); Graham v. State, 275 Ga. 290, 292 (2) (565 SE2d 467) (2002); State v. Hasson, 334 Ga. App. 1, 4 (1) (778 SE2d 15) (2015); Mock v. State, 306 Ga. App. 93, 96 (1) (a) (701 SE2d 567) (2010). Ultimately, it is up to the trier of fact at trial to determine whether venue has been sufficiently established. See Graham, supra. The State did not need to establish venue at the pre-trial hearing on Wallace’s motion to suppress as it was not relevant to the issues raised in his written motion.

As the issue of venue has no bearing on whether the officers had a reasonable basis for the traffic stop or whether the resulting search of Wallace and his vehicle were supported by probable cause, we find that it was erroneous for the trial court to suppress the evidence on the basis of venue. “[W]here it is apparent that the court rests its judgment on reasons which are erroneous or upon an erroneous legal theory, it commits reversible error.” (Citation and punctuation omitted.) State v. Willis, 184 Ga. App. 639, 642 (2) (362 SE2d 444) (1987). In reaching its decision on the narrow grounds stated in its written order, it is apparent that the trial court did not address the merits of the issues raised in Wallace’s written motion to suppress. Accordingly, we reverse the trial court’s judgment and remand the case with direction that the trial court make a determination on whether the officers had a reasonable basis for the traffic stop and whether the resulting search was supported by probable cause after consideration of the evidence that was presented at the hearing. See generally State v. Hogans, 301 Ga. App. 261, 264 (2) (687 SE2d 230) (2009); State v. Willis, 207 Ga. App. 76, 77 (427 SE2d 306) (1993).

Decided September 15, 2016.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellant.

The Hudson Legal Firm, Jacoby T. Hudson, for appellee.

2. The State also argues that the trial court erred in granting the motion to suppress on the basis of venue because Wallace did not raise the issue in his written motion to suppress and, thus, the State was not properly placed on notice that the issue of venue would be raised at the hearing. In light of our holding in Division 1, we need not address this argument.

Judgment reversed and case remanded with direction.

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

       Although we extended the time for Wallace to file an appellee’s brief, he did not file a brief in response to the State’s appeal. Additionally, we note that no appearance was made by appellee’s counsel at oral argument.

       We note, of course, that in Georgia the exclusionary rule has been statutorily adopted by the General Assembly.

       We note that the formal accusation charging Wallace with the stated offenses alleges that the offenses occurred in Fulton County.

       Notably, even the State’s failure to establish venue at trial will not bar the retrial of a criminal defendant for the same offense because the failure to establish venue is a procedural defect which may be cured by the State upon retrial. Stockard v. State, 327 Ga. App. 184, 188-189 (2) (761 SE2d 351) (2014); Hudson v. State, 296 Ga. App. 758, 760 (1) (675 SE2d 603) (2009). Accord Twitty, supra at 207-208 (2).


text:
    A16A0983.
    JACKSON v. NOWLAND et al.
    (791 SE2d 190)
   Ray, Judge.

This appeal stems from the trial court’s denial of appellant Jeffrey Jackson’s request to terminate the Mary Jane Jackson Family Trust. On appeal, Jackson contends that the trial court erred in considering parol evidence and in failing to find that the trust should be terminated because it had “become impractical to effectuate the only remaining purpose for its existence.” For the following reasons, we reverse.

Jackson is the last living child of Mary Jane Jackson (the “Settlor”). He is a beneficiary of the trust, as are his deceased sister’s children, Wendy Poole Long and Douglas Poole. James Nowland is the attorney who prepared the trust documents at the Settlor’s behest. Nowland is now the trustee of the trust at issue and also the appellee in the instant case. The Settlor died on March 9, 2014. When Nowland refused Jackson’s request to terminate the trust after the Settlor’s death, this action ensued.

The dispute in this case turns on the interpretation of the termination clauses in the trust. The Settlor executed the trust at issue via two documents: a Short Form Memorandum of Trust (the “Memorandum”) and a long-form Declaration of Family Trust (the “Declaration”) onMarch23, 2010. The Memorandum was recorded in Paulding County and Haralson County, with the Declaration incorporated by reference. The stated purpose of the trust is to

hold the possessions, goods, properties and privileges of the grantor for the sole benefit of the grantor (Settlor) at the sole discretion of the Settlor for as long as the Settlor maintains and keeps this trust or until she dissolves this trust or until she has converted this trust to an irrevocable trust or until she has met her demise and to provide a means of holding and distributing her possessions, goods, properties and privileges to the beneficiaries of this trust after the Settlor’s demise.

According to the terms discussing distribution of the trust after the Settlor’s death, the trust was to “continue during the life of HER named family members and until her youngest named family members has [sic] reached the age of twenty-seven (27) years.” The Declaration states:

This trust will not automatically terminate when I have met my demise, but will be terminated at the discretion of my trustee at any time after I have met my demise. ... It is intended that when Mary Jane Jackson has met her demise, the assets remaining in this trust shall [be] held for the benefit of her child who is Jeffrey Jackson . . . and the offspring of her child, Sandra Poole ....

(Emphasis supplied.) (hereinafter “trustee discretion clause”). The Declaration further states, at paragraph 6.04:

At such time as Settlor is deceased and all of the Settlor’s named family members have (a) attained the age of twenty-seven (27) years or died prior thereto, the Trust, including any accumulated income, then shall terminate and shall be distributed so as to fund the distributions so that all such shares shall be paid over and delivered to each then living family member of the Settlor[.]

(Emphasis supplied.) (hereinafter “paragraph 6.04”). The Declaration also directs the trustee to dissolve the trust “at the death of the Settlor... as instructed above” and “at any time” before a rule against perpetuities problem arises. The trust documents include handwritten notations that divide the land, a house, and other property held in the trust between Jackson, Long, and Poole.

At the hearing, Jackson argued that paragraph 6.04 controlled and that Nowland therefore had no authority to continue the trust. In response, Nowland presented parol evidence that the beneficiaries were all over the age of 27 at the time the trust was executed and argued that because of this, the trustee discretion clause governed the outcome of the case. Nowland also testified that based on conversations he had with the Settlor before her death, she would not have wanted the trust terminated if all three children could not benefit or if there was a likelihood that the land held in the trust would go to waste, be confiscated because of illegal drug activity by the beneficiaries, or have to be sold because of nonpayment of the taxes. The trust itself holds no funds to provide for its upkeep. Jackson has not paid rent to the trust for his use of the house and property, and Nowland has personally paid the taxes on the land held in trust.

The trial court found that the termination provisions in the trust Declaration were in conflict and ambiguous and considered the parol evidence presented by Nowland on that basis. The trial court found the fact that the beneficiaries were all over the age of 27 at the creation of the trust supported Now land’s contention that the trustee discretion clause best expressed the Settlor’s intent. The trial court reasoned that, given that the beneficiaries had all reached age 27 when the trust was created, the Settlor chose a trustee who was not a beneficiary because she wanted the trust to continue to protect the land from loss until the beneficiaries were ready to receive it. The trial court found that the trustee discretion clause should govern and denied Jackson’s petition to terminate the trust.

1. Jackson argues that the trial court erred in considering parol evidence because the terms of the trust were not ambiguous. Jackson contends that the proper interpretation of the trust language requires termination upon the death of the Settlor unless all of the beneficiaries have yet to reach age 27, in which case the trustee’s discretion would govern until that occurs, at which time the trust would terminate. After all the beneficiaries reached 27, the trust would terminate automatically. Because all the beneficiaries had surpassed 27 at the time of the Settlor’s death, Jackson argues that the trial court’s decision should be reversed and that the trust should be terminated. We agree.

Broadly speaking, the terms of a trust are whatever the settlor intended them to be at the time of the creation of the trust so long as those terms are permitted by law. As with any contract, we look first to the language of the [t]rust documents themselves to determine [the settlor’s] intent.

(Citations, punctuation and footnote omitted.) Rose v. Waldrip, 316 Ga. App. 812, 815 (1) (a) (730 SE2d 529) (2012). Where there is any evidence to support the findings of the trial court, those findings will be upheld on appeal. Id. at 815 (1). Where there is an issue of law, and not of fact, the appellate court will apply the plain legal error standard of review. Id. See also OCGA § 13-2-1 (“The construction of a contract is a question of law for the court”).

Georgia statutory law is abundantly clear that the purpose of contract construction is to arrive at the intent of the parties. OCGA § 13-2-3. In interpreting an express trust, this Court “look[s] first and foremost to the language therein and interpret^] that language to effectuate the intent of the settlor[ ].” (Citation omitted.) Ovrevik v. Ovrevik, 242 Ga. App. 95, 97 (1) (527 SE2d 586) (2000). As with the language of a contract, where the words of a trust leave the settlor’s intent in question, ambiguity exists. See Coleman v. Arrington Auto Sales & Rentals, 294 Ga. App. 247, 249 (2) (669 SE2d 414) (2008). The court may turn to parol evidence for clarification only if it finds an ambiguity Ovrevik, supra at 97 (1). Accord OCGA § 13-2-2 (1), (4). On its face, the language of the trust provisions at issue is not ambiguous and can be reconciled as Jackson contends. See Strange v. Towns, 330 Ga. App. 876, 878 (769 SE2d 604) (2015) (finding that trial court erred in considering parol evidence where seemingly contradictory language could be reconciled through interpreting the settlor’s intention via language used and rules of law).

Decided September 15, 2016.

Jack F. Witcher Law Firm, Jack F. Witcher, Daniel B. Greenfield, for appellant.

James F. Nowland Law Firm, James F. Nowland, pro se.

Here, the trial court erred in finding an ambiguity with regard to the trust instruments’ termination provisions and in considering parol evidence to interpret those provisions. Absent parol evidence, the trustee discretion clause and paragraph 6.04 can be reconciled within the four corners of the trust instruments. Only when one considers the actual age of the beneficiaries at the time the trust was drafted does an ambiguity appear. The stated purpose of the trust is to hold the assets in the trust until the Settlor’s demise. Paragraph 6.04 and other provisions direct the trustee to dissolve the trust at the death of the Settlor and indicate that the trustee’s discretion is dependent on age parameters. The trustee discretion clause must be read in cohesion with these other provisions. See OCGA § 13-2-2 (4). Therefore, as Jackson argues, the trial court’s consideration of parol evidence impermissibly “took away” paragraph 6.04 as well as other provisions. See OCGA § 13-2-2 (1). Where, as here, the intention of the Settlor could be derived using the text supplied by the trust documents and rules of construction, the trial court erred by considering parol evidence. See Ovrevik, supra; Strange, supra. Based on the foregoing, we reverse the trial court’s order and find that the Mary Jane Jackson Family Trust should have been terminated.

2. Because of our determination in Division 1, we need not address Jackson’s remaining enumeration.

Judgment reversed.

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

       Those offspring are Wendy Poole Long and Douglas Poole.

       Jackson named Nowland, Long, and Poole as defendants in this case, but neither side could locate Long and Poole prior to the hearing. They were served via publication, but did not answer or appear before the trial court.


author: McFADDEN, Judge.

text:
    A16A1108.
    COBB v. THE STATE.
    (791 SE2d 204)
   McFADDEN, Judge.

Brandon Lee Cobb appeals his conviction for aggravated assault. Cobb argues that the evidence was insufficient to support his conviction; that trial counsel was ineffective in failing to call a sign language interpreter as a witness and in failing to object to the prosecution’s use of the phrase “drive-by shooting” in closing argument; and that he is entitled to a new trial because of the prosecution’s use of this phrase. However, because the evidence was sufficient, Cobb has abandoned his closing-argument related claims, and the decision not to call the interpreter was a reasonable strategic decision, we affirm.

1. Background.

On appeal [of a criminal conviction] the evidence must be viewed in the light most favorable to support the verdict, and [Cobb] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997) (citation omitted). So viewed, the evidence shows that Cobb drove several individuals to a house party in exchange for gas money. The house was located on a cul-de-sac. Following an argument at the party, the homeowner told Cobb and his passengers to leave and escorted them to Cobb’s SUV. The homeowner saw a handgun between the driver’s and passenger’s seats of Cobb’s SUV. Cobb and his passengers drove out of the neighborhood but returned soon after leaving.

Cobb drove back toward the party with his headlights on, turned aroundin the cul-de-sac, and drove slowly back toward the party with his headlights off. As he drove by the party, his passengers fired into the party from the open back window of the SUV The homeowner’s brother returned fire. A bystander was struck by a bullet during the exchange.

Cobb rapidly accelerated into the back of a car parked on the street, injuring a passenger in that car. Cobb continued to drive, coming to a stop after exiting the neighborhood when his SUV failed. Cobb’s passengers fled while Cobb remained with his vehicle until police arrived. When police arrived, Cobb indicated that he was deaf and requested an interpreter, but one was not available, so the police communicated with him in writing.

At Cobb’s first trial, he was convicted of reckless conduct and leaving the scene of an accident and acquitted of two counts of aggravated assault. The jury did not reach a verdict on two more counts of aggravated assault, and the trial court declared a mistrial on these counts. At Cobb’s second trial, a jury found him guilty of one count of aggravated assault.

2. Sufficiency of the evidence.

Cobb argues that the evidence was insufficient to support his conviction as a party to the crime. Specifically, he argues that the circumstantial evidence of his guilty intent was insufficient because it supported reasonable alternative hypotheses. We disagree. A conviction may rely on circumstantial evidence when the evidence “exclude [s] every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-14-6. Whether a hypothesis is reasonable is a question for the jury “and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law.” Blevins v. State, 291 Ga. 814, 816 (733 SE2d 744) (2012) (citation and punctuation omitted).

The evidence here authorized the jury to exclude Cobb’s alternative hypotheses. The state relied on evidence that Cobb returned to the neighborhood, turned his headlights off, opened his back window, and drove slowly past the party before speeding away to support the inference that Cobb knew of his passengers’ intent to commit a crime.

Cobb argues that he drove past the party after being ejected in order to exit the neighborhood — ignoring the testimony that he already had left the neighborhood and returned; that he forgot to turn on his headlights; that the back window failed to close after he had opened it earlier that evening — ignoring testimony that the window opened as he slowly drove toward the party with his lights off after turning around in the cul-de-sac; and that he drove slowly to ensure the safety of those in the street. The evidence does not “support the alternative explanation[s] .... As a result, the jury’s rejection of [those] hypothes[e]s is not unsupportable as a matter of law.” Blevins, supra, 291 Ga. at 817.

3. Closing argument.

Cobb argues that he is entitled to a new trial because of the state’s referring to the incident as a “drive-by shooting” in closing arguments. He argues that the phrase introduced facts not in the evidence and was intended to inflame the jury However, closing arguments were not transcribed, and Cobb has failed to supplement the record with them:

Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f). When this is not done, there is nothing for the appellate court to review. Therefore, due to the omission of closing arguments from the transcript, we cannot review this enumeration of error.

Hurston v. State, 278 Ga. App. 472, 476-477 (4) (629 SE2d 18) (2006) (citation omitted).

4. Assistance of counsel.

Cobb argues that his trial counsel was ineffective because she did not call a sign language interpreter to testify about Cobb’s limited ability to communicate, and she failed to object to the state’s use of the phrase “drive-by shooting” in closing argument. These claims of error are without merit. Whether trial counsel was ineffective is governed by a two-pronged test that requires proof of (1) deficient performance of counsel and (2) prejudice arising from counsel’s deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III), 694 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984).

Trial counsel’s decision not to call the sign language interpreter was not ineffective.

[I] t is well established that the decision as to which defense witnesses to call is a matter of trial strategy and tactics. And tactical errors in that regard will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances.

Perdue v. State, 298 Ga. 841, 845 (3) (785 SE2d 291) (2016) (citation and punctuation omitted).

At the motion for new trial hearing, trial counsel explained that she chose not to call the interpreter based on the state’s change in tactics between the first and the second trials. At the first trial, Cobb called the interpreter for two purposes: to refute the state’s contentions about Cobb’s ability to communicate and to rebut the testimony of a responding officer that he believed that Cobb could read lips.

At the second trial, the responding officer did not testify that Cobb was able to read lips. Further, Cobb presented expert testimony about his severe to profound hearing loss, and Cobb himself testified that he could not read lips. Counsel testified that because the state had changed strategies, “it wasn’t a necessity to have to put [the interpreter] back up again.” Cobb has not shown that trial counsel’s decision not to call the interpreter was an unreasonable decision that no competent attorney would have made under similar circumstances. Perdue, 298 Ga. at 845 (3).

As to Cobb’s claim that counsel was ineffective for failing to object to the use of the phrase “drive-by shooting,” as noted in Division 3, the closing arguments were not transcribed. “Speculation that error may have occurred is insufficient to show any deficiency on the part of counsel, or prejudice therefrom, and is insufficient to show reversible error.” Parrott v. State, 330 Ga. App. 801, 805-806 (3) (a) (769 SE2d 549) (2015) (punctuation and footnote omitted).

Decided September 15, 2016.

Stanley W. Schoolcraft III, for appellant.

Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Teresa M. Stolze, Assistant District Attorneys, for appellee.

Judgment affirmed.

Miller, P. J., and McMillian, J., concur.


text:
    A16A1142.
    McMURTRY v. THE STATE.
    (791 SE2d 196)
   Ray, Judge.

A jury convicted Jerome McMurtry of one count of sexual battery (OCGA § 16-6-22.1) as a lesser included offense to child molestation and two counts of child molestation (OCGA § 16-6-4) under a redacted indictment. The convictions resulted from his actions toward A. L., a ten-year-old girl. He appeals from the denial of his motion for new trial, arguing that the trial court erred in denying his motion for new trial on the general grounds; in refusing to instruct the jury on simple battery as a lesser included offense to child molestation; and in admitting A. L.’s prior out-of-court statements. He also argues that the State failed to disprove his defense of accident and that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

Under the standard set forth in Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that McMurtry stayed as a guest in A. L.’s home in December 2013. He is A. L.’s great uncle. A. L. testified that he “would say nasty things” to her, “[ljike you’re sexy or stuff like that.” She testified that at one point while they both were clothed, he told her to “get on the floor,” got behind her, and “dry-humped” her while laughing. On another occasion, McMurtry told A. L. to “sit on his lap,” but when her mother opened the garage door, he told her to get off and not to tell anyone. Additionally, when using the bathroom, he left the door open, then told her to “look, I’m done[,]” and when she looked, his penis was out. One night, after she had gone to bed, she felt “something down near in my private part” and awoke to find him bending over her, with his hand in her nightclothes, “pushing up like into my private part.” She told McMurtry to “get out.” She then woke her parents, telling them that McMurtry “put his hands in my pants. Well, on me.” When A. L.’s mother confronted McMurtry shortly after her daughter’s outcry, he initially said he was looking for the remote. When she challenged him, saying, “under her covers?” he then said, “I was just playing with her.”

At trial, McMurtry testified in his own defense. When the State asked McMurtry if his explanation was that he was just looking for a remote control “in a ten-year-old girl’s bed between her legs[,]” he responded that “everybody looks for a controller in that house, man . . . [everybody] pulled up the cover. I’ve done it, the father been there and done it. I mean looking for the controller. Wasn’t no hanky-panky towards his daughter. ... I did not molest her.”

He testified that he was drunk on the evening that A. L. reported the inappropriate touching. He stated that during the week he stayed at A. L.’s house, he was drunk for two or three days and that his “pattern” was to black out, and “when you’re blackout drunk, you don’t know what you’re doing.” However, he acknowledged that he did remember a little bit about the evening when A. L. said he touched her inappropriately and recalled interactions with A. L.’s parents, although he said he could not recall touching A. L. He agreed that when police, in a recorded interview, asked if he touched A. L.’s vagina, he responded that he was “stone drunk. I don’t know what I did[,]” and acknowledged that this was a “contradiction” to his outright denial that he had molested her.

A. L.’s mother testified that although McMurtry had been drinking earlier during the day that A. L. said he molested her, the mother was familiar with what he was like when drunk. She testified that, by contrast, when she confronted him shortly after A. L. had reported the touching around midnight, he was walking, talking and coherent.

1. McMurtry contends that the trial court “abused its discretion when it failed to grant a motion for new trial on the general grounds” as to Count 2 of the redacted indictment. This count accused McMur-try of “rubbing [A. L.’s] vagina over the clothing with the intent to arouse and satisfy the sexual desires of said accused[.]” He argues that the evidence was “insufficient” to show the intent required by OCGA § 16-6-4 (a). He essentially contends that there was no evidence to show he was not intoxicated and that his intoxication pre-eluded his ability to form the requisite intent when he touched A. L.

[A] motion for new trial based on OCGA § 5-5-20, i.e., that the verdict is contrary to the evidence, addresses itself only to the discretion of the trial judge. Whether to grant a new trial based on OCGA § 5-5-21, i.e., that the verdict is strongly against the evidence, is one that is solely in the discretion of the trial court, and the appellate courts do not have the same discretion to order new trials. Thus, even when an appellant asks this Court to review a trial court’s refusal to grant a new trial on the general grounds, this Court must review the case under the standard set forth in Jackson v. Virginia, supra, that is, if the evidence viewed in the light most favorable to the prosecution, supports the verdict or verdicts.

(Citations and punctuation omitted.) Allen v. State, 296 Ga. 738, 741 (2) (770 SE2d 625) (2015). The record shows that the trial court correctly exercised its discretion. See Leggett v. State, 331 Ga. App. 343, 345 (2) (771 SE2d 50) (2015) (appellate courts will not presume that a trial court erred where such fact does not affirmatively appear).

Despite McMurtry’s contentions that his intoxication negated his intent, McMurtry testified that on the night of the touching and outcry, he was drinking with A. L.’s parents and that he visits them for that purpose: “I go over there to drink.” As McMurtry’s own testimony indicates that he drank voluntarily on the night in question and on other days implicated in the indictment, his alleged intoxication cannot negate his intent. OCGA § 16-3-4 (c) (“Voluntary intoxication shall not be an excuse for any criminal act”). Compare OCGA § 16-3-4 (a) and (b).

Further, A. L.’s mother testified that when she confronted McMur-try that night after her daughter reported the inappropriate touching, he was walking and talking, was not incoherent and had not been drinking to the point where he “had no idea” what had happened. A. L. testified, as outlined above, to McMurtry’s inappropriate touching. Witness credibility is, of course, for the trier of fact rather than this Court. Couch v. State, 248 Ga. App. 238, 239 (1) (545 SE2d 685) (2001) (where defendant testified that he fondled underage girl in the shower because it was too dark to see and he thought she was his wife, jury was authorized to believe child’s testimony that it was light enough to see). Here, a trier of fact could reasonably question McMur-try’s credibility given that he testified that he had “blacked out” and could not recall what happened, yet also testified that he knew he was looking for the remote in the child’s bed. A trier of fact could reasonably believe from the evidence that McMurtry was not looking for the remote but was in fact touching a ten-year-old’s private parts with the intent to sexually arouse himself. Brown v. State, 295 Ga. App. 542, 543-544, n. 7 (672 SE2d 514) (2009) (jury was authorized to infer intent where child testified that defendant exposed himself to her, but defendant testified that he was asleep on the couch and that child must have looked up his shorts). We find no error.

2. McMurtry argues that the State failed to disprove his defense of accident, on which the jury was instructed, beyond a reasonable doubt. See OCGA § 16-2-2. McMurtry contends that no witness testified that he was not drunk and searching for a remote when he lifted the covers on A. L.’s bed, and that in his drunkenness, any touching was accidental rather than intentional. However, given the evidence outlined above, including but not limited to the testimony from A. L. that McMurtry’s hand was “in my dress” and was “pushing up like into my private part” and the mother’s testimony that McMurtry was not incoherent immediately after the incident, the trier of fact was authorized to find that the State met its burden. Black v. State, 261 Ga. App. 263, 264-265 (1) (582 SE2d 213) (2003).

3. McMurtry argues that the trial court erred in refusing to instruct the jury on simple battery asa lesser included offense of child molestation. We find no error.

While the transcript shows that McMurtry’s defense counsel verbally asked the trial court to charge simple battery as a lesser included offense, his written request seeks a lesser included charge on battery. Simple battery and battery are separate crimes. Compare OCGA § 16-5-23 (a) (simple battery) with OCGA § 16-5-23.1 (battery). McMurtry points us to no written request to charge on simple battery “A trial judge never errs in failing to instruct the jury on a lesser included offense where there is no written request to so charge.” (Punctuation and footnote omitted.) Elrod v. State, 316 Ga. App. 491, 494 (2) (729 SE2d 593) (2012). An oral request to charge does not alter this mandate. Benefield v. State, 204 Ga. App. 87, 87 (418 SE2d 447) (1992).

Further, even pretermitting McMurtry’s failure to make a written request to charge on simple battery, the trial court did not err because the evidence failed to support such a charge. See Williams v. State, 252 Ga. App. 280, 280 (556 SE2d 170) (2001) (even absent a written request, appellate courts review erroneous charges for substantial error that was harmful as a matter of law). “It is axiomatic that a requested charge must be legal, apt, and precisely adjusted to some principle involved in the case and be authorized by the evidence. If any portion of the request to charge fails in these requirements, denial of the request is proper.” (Citations and punctuation omitted.) Watkins v. State, 336 Ga. App. 145, 149 (3) (784 SE2d 11) (2016).

OCGA § 16-5-23 (a) provides: “A person commits the offense of simple battery when he or she either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.” Where, as here, the evidence presented by the State has established all the elements of the offense of child molestation, and no evidence raises the lesser offense, a trial court does not err in failing to charge on the lesser offense. Watkins, supra at 150 (3) (c). Here, McMurtry denied touching A. L.’s vagina and other inappropriate touching, but he also testified that he did not recall touching her and acknowledged telling a police officer that he did not know what he did because he was drunk.

Under this testimony, [McMurtry] either committed an act of child molestation or he did not. As a result, the evidence in this case offered the jury a choice between a completed crime or no crime. It follows that there was no error in declining to give the proposed instructions on [the] lesser included offense[ ].

(Citations and punctuation omitted.) Watkins, supra. Accord Brooks v. State, 197 Ga. App. 194, 194-195 (1) (397 SE2d 622) (1990) (questioning whether simple battery can ever be a lesser included offense to child molestation and finding no error in refusal to charge where defendant denied inappropriately touching victim but also said he did not recall what had happened because he was intoxicated). The trial court did not err.

4. McMurtry contends that the trial court erred in admitting the testimony of A. L.’s mother and a police officer regarding A. L.’s prior out-of-court statements to them about his inappropriate sexual contact with her. He argues that the statements failed to meet the criteria in OCGA §§ 24-8-801 and 24-8-820. As these claims of error were not preserved by objection below, we review McMurtry’s contentions only for plain error affecting his substantial rights. OCGA § 24-1-103 (d).

(a) McMurtry argues that the trial court erred under OCGA § 24-8-820 in admitting the testimony of the police officer and A. L.’s mother regarding the victim’s statements to them about McMurtry’s improper actions. His argument is specifically limited to the contention that the officer’s and mother’s statements lacked specific indicia of reliability. However, as McMurtry concedes in his appellate brief, the version of OCGA § 24-8-820 applicable here, unlike its predecessors, contains no such requirement. We decline to add judicially a requirement that the legislature did not include. See generally Cox v. Fowler, 279 Ga. 501, 502 (614 SE2d 59) (2005) (we must attach significance to the legislature’s removal of limiting language in a statute). See also Hunt v. State, 336 Ga. App. 821, 828 (2) (b) n. 5 (783 SE2d 456) (2016) (“For offenses occurring on or after July 1, 2013, a showing of indicia of reliability is no longer a requirement for allowing child hearsay evidence”) (citations omitted).

The applicable version of OCGA § 24-8-820 provides:

A statement made by a child younger than 16 years of age describing any act of sexual contact or physical abuse performed with or on such child by another . . . shall be admissible in evidence by the testimony of the person to whom made if the proponent of such statement provides notice to the adverse party prior to trial of the intention to use such out-of-court statement and such child testifies at the trial. . . and, at the time of the testimony regarding the out-of-court statements, the person to whom the child made such statement is subject to cross-examination regarding the out-of-court statements.

The State provided the statutorily required notice of intent. The other statutory requirements also were met, in that A. L., who is under 16 years of age, testified at trial about the sexual abuse and both her mother and the police officer were available for cross-examination about the out-of-court statements. McMurtry has failed to show error, plain or otherwise.

(b) Given our finding that A. L.’s out-of-court statements were admissible under OCGA § 24-8-820, we need not evaluate their admissibility under OCGA § 24-8-801 (d) (1) (A) (a prior out-of-court statement is not hearsay if the declarant testifies at trial, is subject to cross-examination regarding the statement, and the statement, inter alia, “is otherwise admissible under this chapter”).

Decided September 15, 2016

Frances C. Kuo, for appellant.

Daniel J. Porter, District Attorney, Michael P. DiOrio, Jon W. Setzer, Assistant District Attorneys, for appellee.

5. McMurtry argues that his trial counsel was ineffective in failing to object to the above-referenced statements by the police officer and A. L.’s mother regarding A. L.’s out-of-court statements given that counsel did not “affirmative[ly]” raise recent fabrication, improper influence, or improper motive during A. L.’s cross-examination. To prevail on an ineffective assistance claim, McMurtry

was required to show both that his counsel’s performance was professionally deficient and that but for counsel’s unprofessional conduct, there is a reasonable probability [that] the outcome of the proceedings would have been different,.... The likelihood of a different result must be substantial, not just conceivable. . . . [W]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012).

As discussed in Division 4 (a), supra, given that the out-of-court statements were properly admitted under the applicable child hearsay statute, OCGA § 24-8-820, “trial counsel had no grounds for challenging this testimony and cannot be adjudged ineffective for failing to object to it.” (Citation omitted.) Hendrix v. State, 298 Ga. 60, 65-66 (2) (c) (779 SE2d 322) (2015).

Judgment affirmed.

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

       The jury acquitted McMurtry of one count of child molestation, and the trial court entered an order of nolle prosequi as to three additional counts of child molestation.

       He does not raise this challenge as to his other convictions.

       Both statutes recently have been amended. See Ga. L. 2015, pp. 203, 204, § 3-2, eff. July 1, 2015 (OCGA § 16-5-23) and Ga. L. 2016, p. 587, § 1, eff. July 1, 2016 (OCGA § 16-5-23.1). We have considered the version of the statutes in effect at the time the offenses were committed. See Ga. L. 2011, pp. 227, 232, § 3, eff. July 1, 2011 (OCGA § 16-5-23) and Ga. L. 2011, pp. 227, 232, § 4, eff. July 1, 2011 (OCGA § 16-5-23.1).

       See Ga. L. 2013, pp. 222, 237, § 13, eff. July 1, 2013. The crimes at issue occurred after the effective date of this amendment, in December 2013.

       See generally OCGA § 24-3-16 under the old Evidence Code, which was replaced by the initial version of ÓCGA § 24-8-820 (Ga. L. 2011, pp. 99, 100, § 2), which was effective from January 1, 2013, until June 30, 2013.


author: BARNES, Presiding Judge.

text:
    A16A1425.
    SAPP v. THE STATE.
    (791 SE2d 201)
   BARNES, Presiding Judge.

In a two-count accusation, Lawanda D. Sapp was charged with two counts of speeding: Count 1, traveling 60 miles per hour in a 45 mile per hour zone, and Count 2, speeding in excess of the 45 mile per hour speed limit. Following a jury trial at which she represented herself, Sapp was found guilty of Count 2, speeding in excess of the posted speed limit. Proceeding pro se, Sapp appeals and enumerates multiple errors on appeal, including that the evidence was insufficient to sustain her conviction, that the double jeopardy clause of the Fifth and Fourteenth Amendments bars prosecution of charges that share the same issues of fact, that the trial court failed to issue a legally valid uniform traffic citation on the speeding charge, that the trial court failed to obtain a knowing and intelligent waiver of her right to formal arraignment, and that the speeding charge was random and arbitrary and added as punishment for her seeking a jury trial. The State concedes that it cannot show that Sapp was formally arraigned and also acknowledges that she had objected to any waiver of the arraignment. Accordingly, we reverse her conviction.

1. We first address Sapp’s contention that the evidence was insufficient to find her guilty of speeding. We do not agree.

When sufficiency of the evidence is raised, the question on appeal is whether, based on the evidence presented, a rational trier of fact could have found the accused guilty of the charged crime beyond a reasonable doubt. We construe the evidence in favor of the verdict.

(Footnotes omitted.) Woodruff v. State, 246 Ga. App. 540, 540 (1) (541 SE2d 99) (2000). “[T]he jury’s verdict will be upheld as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” (Punctuation and footnote omitted.) Jones v. State, 318 Ga. App. 26, 29 (1) (733 SE2d 72) (2012). So construed, the evidence demonstrates that on the morning of July 29, 2015, a patrol officer with the DeKalb County Police Department was monitoring traffic with a laser device on Moreland Avenue near South River Industrial Boulevard. The speed limit on that road is designated 45 miles per hour. The officer testified that before using a laser device to monitor traffic, officers must measure the distance of their location to ensure that they are visible to motorists from at least 500 feet in either direction. As Sapp’s vehicle approached, the officer “captured her speed at 60 with the device,” and she was issued a traffic citation for speeding.

At her first court appearance on September 21, 2015, Sapp requested a jury trial, after which, on November 4, 2015, the State filed a two-count accusation: Count 1, unlawfully operating “a motor vehicle at 60 miles per hour . . . when the speed limit there was 45 miles per hour,” and Count 2, operating “a motor vehicle at a speed in excess of the posted speed limit of 45 miles per hour.” At trial, the officer was the State’s only witness, and Sapp represented herself and testified in her own defense. After hearing the testimony, the jury found Sapp guilty of Count 2, speeding in excess of the posted speed limit, and not guilty of Count 1, speeding 60 miles per hour in a 45 miles per hour zone.

Sapp appears to contend there was no evidence presented in the court on the second count, and the officer only testified about the use of the laser device. Contrary to Sapp’s assertion, this evidence was sufficient. In order to be guilty of speeding, one need only “exceed the designated speed limit.” (Punctuation omitted.) Frasard v. State, 322 Ga. App. 468, 468-469 (1) (a) (745 SE2d 716) (2013). The officer’s testimony that Sapp was traveling above the posted speed limit, as verified by his laser device, was sufficient to sustain her conviction. See id. (officer’s testimony that defendant was traveling above the speed limit was sufficient to sustain conviction). Further, OCGA § 40-14-17 provides: “Evidence of speed based on a speed detection device . . . shall be admissible for all purposes in any court.”

Accordingly, the evidence was sufficient to sustain Sapp’s conviction for speeding, and her contentions otherwise are meritless.

2. Sapp’s contention that she could not be prosecuted under charges that “share the same critical issue of ultimate fact” is not supported with any argument or citation to authority, and thus this enumeration is deemed abandoned. See Court of Appeals Rule 25 (c) (2); Anderson v. State, 335 Ga. App. 78, 80 (3) (778 SE2d 826) (2015).

3. In two related enumerations, Sapp contends that she received inadequate notice of her arraignment and was never formally arraigned. The State concedes that it cannot show that Sapp was ever formally arraigned on the charges against her, and that Sapp did not waive arraignment.

The record demonstrates that before jury selection, the trial court requested that Sapp sign the accusation. Subsequently, the following exchange occurred:

SAPP: From what I’m reading its says defendant, Lawanda Sapp, waives copy of the accusation. I do not. Waive list of witnesses, I do not. Waive formal arraignment, I do not.
COURT: We’ve already gone through all that. We’re going to trial now. . . . [Y]ou have a copy of this. We’re going to trial today We scheduled this case for trial today so you’re not waiving anything.
SAPP: I’m going to put I do not waive anything.
COURT: Perfect. You have been here, as I recollect, at least two or three times.
SAPP: I’m just going by what the paper says, as Lawanda Sapp waives.
COURT: You can put anything you want down there. You don’t waive anything, I understand.
COURT: I know you have been here at least once, if not twice. STATE: Judge, we’re showing arraignment was on December 7, calendar call was on January 8.

The State concedes that there is no record of Sapp’s arraignment other than the court notice filed on November 4, 2015 setting the date of arraignment for December 7, 2015. It acknowledges that the State cannot show that Sapp was formally arraigned and aware of the charges against her in conjunction with OCGA § 17-16-21orOCGA § 17-7-93 and that because she objected to the lack of a formal arraignment, “the trial court should have arraigned her . . . and this Court should reverse the sentence.”

“ ‘Generally, a person indicted for or charged with an offense against the laws of this state is entitled as a matter of right to be arraigned before pleading to the indictment . . . [Cit.]” Shorter v. State, 155 Ga. App. 609, 610 (1) (271 SE2d 741) (1980). While OCGA § 17-7-91 (c) permits waiver upon “appearance and entering of a plea,” it is reversible error for a trial court to require a defendant to go to trial on an indictment “when [she] was not formally arraigned and refused specifically to waive such arraignment.” Presnell v. State, 159 Ga. App. 598 (284 SE2d 106) (1981). See Hicks v. State, 145 Ga. App. 669 (1) (244 SE2d 597) (1978) (no waiver if accused makes timely express invocation of right to arraignment despite entry of plea).

Decided September 15, 2016.

Lawanda D. Sapp, pro se.

Sherry Boston, Solicitor-General, WystanB. Getz, Assistant Solicitor-General, for appellee.

In this case, the State concedes that it cannot demonstrate that Sapp was formally arraigned and that Sapp refused to waive a formal arraignment. Thus, we reverse Sapp’s conviction for speeding.

4. In light of our decision in Division 3, we need not address Sapp’s remaining enumerations of error.

Judgment reversed.

Boggs and Rickman, JJ., concur.

       Sapp was found not guilty of Count 1, operating a vehicle at 60 miles per hour in a 45 mile per hour speed zone.

       OCGA § 17-16-21 provides in pertinent part: “Prior to arraignment, every person charged with a criminal offense shall be furnished with a copy of the indictment or accusation

       OCGA § 17-7-93 (a) states:
      Upon the arraignment of a person accused of committing a crime, the indictment or accusation shall be read to him and he shall be required to answer whether he is guilty or not guilty of the offense charged, which answer or plea shall be made orally by the accused person or his counsel.


author: Rickman, Judge.

text:
    A16A1472.
    CONNOR et al. v. OCONEE FEDERAL SAVINGS & LOAN ASSOCIATION et al.
    (791 SE2d 207)
   Rickman, Judge.

We granted an application for interlocutory appeal by Art D. Connor and Louann B. Connor in order to consider whether the trial court erred in failing to rule on their motion to dismiss a lawsuit based upon insufficient service of process before denying their motion to quash witness subpoenas and ordering them to attend mediation and a hearing. For the reasons that follow, we reverse.

In March 2015, Oconee Federal Savings & Loan Association, successor by merger to Stephens Federal Bank (“Oconee Federal”), filed a suit on note against the Connors in the Superior Court of White County The complaint stated that the Connors resided and could be served at 8902 N. Main Street, Helen, Georgia 30545, also known as the Black Forest Bed and Breakfast (“B&B”).

A sheriff’s deputy attempted to serve the summons and complaint on both Art and Louann Connor at the B&B. The sheriff’s entries of service dated March 16, 2015, indicate that the serving deputy was advised by an “attendant” that the Connors no longer resided at that address and had moved outside the State of Georgia. Nevertheless, in July 2015, an otherwise unidentified “process server” filed a third entry of service stating that Art Connor was served by delivering a copy of the summons and complaint to “Marianne Tomey (Front Clerk)” at the B&B. The record contains no process server’s entry of service for Louann Connor.

Art Connor filed by special appearance a motion to dismiss based upon insufficiency of service of process. The motion was accompanied by a sworn affidavit signed by himself and Louann in which both averred that in July 2014, they “relocated out of the state of Georgia and have maintained [their] residency out of the State of Georgia since that date.” Also filed with the motion was a sworn affidavit by the resident manager of the B&B, who averred that he was the sole resident of the B&B; that the Connors had not resided at that address since July 2014; and that Marianne Tomey had been employed by the B&B to provide housekeeping services, her presence at the B&B was limited to her employee obligations to provide those services, and she was not in July 2015, nor has she ever been, a resident of the B&B. Art Connor further asserted that any attempted service by an unknown “process server” who did not file a return of service failed to satisfy the requirements of OCGA § 9-11-4 (c) and (h).

Oconee Federal in turn amended its complaint to allege long arm jurisdiction pursuant to OCGA § 9-10-90 et seq., asserting that the real property securing the note underlying the lawsuit is located in White County and that the Connors transact substantial business in Georgia, thus subjecting the Connors to the jurisdiction of the White County Superior Court. Oconee Federal also filed a response to the motion to dismiss in which it maintained that the Connors “should be required to appear and provide admissible evidence to support their contention” that they were no longer residents of the State of Georgia.

Ahearing on the motion to dismiss was set for December 4, 2015. Oconee Federal thereafter sent by mail to counsel for the Connors two witness subpoenas commanding the Connors to appear at the hearing. The Connors moved to quash the subpoenas, asserting that Oconee Federal’s failure to perfect service of process of the summons and complaint deprived the superior court of jurisdiction over their persons, and further that the subpoenas were defective for failure to include a witness fee and mileage. Counsel for the Connors made a special appearance at the hearing to argue on their behalf.

Without ruling on the motion to dismiss, the superior court continued the hearing until February 16, 2016, denied the Connors’ motion to quash the subpoenas, directed them to attend the continued hearing “as parties to this action” regardless of the subpoenas, and ordered them to attend mediation with Oconee Federal prior to the continued hearing date. It is from this order that the Connors appeal.

“Proper service of summons is necessary for the court to obtain jurisdiction over a defendant.” Bonner v. Bonner, 272 Ga. 545, 546 (2) (533 SE2d 72) (2000); see Southworth v. Southworth, 265 Ga. 671, 673 (3) (461 SE2d 215) (1995) (“Due process requires that a defendant be given notice of the action pending against [him or] her.”) (citation omitted). Moreover, personal jurisdiction is required in order for a party to be subject to the decisions and rules made by the court in a particular case “and is obtained by appearance or by serving the proper process in the manner required by law” on persons subject to be sued in that case. (Citation and punctuation omitted.) Bonner, 272 Ga. at 546 (2). “Where there has been no legal service on the defendant and no waiver of service, the court has no jurisdiction to enter any judgment in the case unless it be one dismissing the case for lack of jurisdiction.” (Citation omitted.) DeJarnette Supply Co. v. F.P. Plaza, Inc., 229 Ga. 625 (2) (193 SE2d 852) (1972); Southworth, 265 Ga. at 673 (3) (noting that in the absence of proper service, “the trial court obtains no jurisdiction over the person of the defendant and a judgment rendered against [him or] her is absolutely void”) (citation omitted).

Georgia’s requirements for service of process, regardless of whether a defendant resides inside the state or is subject to jurisdiction pursuant to the Long Arm Statute, are set forth in OCGA § 9-11-4. See OCGA § 9-11-4 (e) (7) (personal service), (f) (1) (service by publication); OCGA § 9-10-94 (“A person subject to the jurisdiction of the courts of the state ... maybe served with a summons outside the state in the same manner as service is made within the state by any person authorized to make service by the laws of the state. . . .”); Oglesby v. Deal, 311 Ga. App. 622, 626 (1) (716 SE2d 749) (2011) (“[P]ursuant to the long arm statute, ... a plaintiff must serve process on a person residing outside the state in the same way that someone is served inside the state. . . .”) (citation and punctuation omitted). And the burden is on the plaintiff, not the trial court, to exercise the degree of diligence necessary to locate a defendant for the purpose of service of process. See Kelley v. Lymon, 279 Ga. App. 849, 851 (1) (632 SE2d 734) (2006) (deeming “inappropriate” the plaintiff’s attempt to use of the trial court to compel defendant’s appearance at a deposition in order to effect service on him); Jarmon v. Murphy, 164 Ga. App. 763, 764 (1) (298 SE2d 510) (1982) (“The burden is on the plaintiff to investigate and learn where the defendant may be located.”) (citation and punctuation omitted).

Decided September 15, 2016.

Chadwick S. Knott, for appellants.

Sanders, Ranch & Skilling, Brian C. Ranch, for appellees.

The superior court in this case erred by failing to rule on the Connors’ motion to dismiss based upon insufficient service of process prior to ordering them to attend mediation and/or the continued hearing. Unless and until the court determines that service of the summons and complaint has been perfected on or waived by the Connors, it lacks personal jurisdiction over them. See Southworth, 265 Ga. at 673 (3); DeJarnette Supply Co., 229 Ga. at 625 (2).

Judgment reversed.

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

       The entry of service is a sheriff’s entry of service form on which all references to “sheriff” have been crossed out and manually replaced with “process server.” The record contains no additional information as to the identity or qualifications of the individual who purportedly served the documents.

       OCGA § 9-11-4 (c) provides, in pertinent part:
      . . . Process shall be served by: (1) The sheriff of the county where the action is brought or where the defendant is found or by such sheriff’s deputy; (2) The marshal or sheriff of the court or by such official’s deputy; (3) Any citizen of the United States specially appointed by the court for that purpose; (4) A person who is not a party, not younger than 18 years of age, and has been appointed by the court to serve process or as a permanent process server; or (5) A certified process server as provided in Code Section 9-11-4.1.

       OCGA § 9-11-4 (h) provides:
      . . . The person serving the process shall make proof of such service with the court in the county in which the action is pending within five business days of the service date.. . . Proof of service shall be as follows: (1) If served by a sheriff or marshal, or such official’s deputy, the affidavit or certificate of the sheriff, marshal, or deputy; (2) If by any other proper person, such person’s affidavit^] . . .

       The Connors also unsuccessfully moved to quash a witness subpoena served on the resident manager of the B&B, but that subpoena is not the subject of this appeal.

       Oconee F ederal’s assertion that the Connors waived the right to contest the validity of the witness subpoenas by failing to obtain an order quashing the subpoenas prior to the hearing date is incorrect. See OCGA § 24-13-23 (b) (1) (“The court, upon written motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may . . . [q]uash or modify the subpoena if it is unreasonable and oppressive. . . .”) (emphasis supplied).


author: Ellington, Presiding Judge.

text:
    A16A0746.
    SMITH v. THE STATE.
    (791 SE2d 418)
   Ellington, Presiding Judge.

A DeKalb County jury found Saevon Smith guilty of one count of impeding the flow of traffic, OCGA § 40-6-184 (a); and two counts of driving under the influence of alcohol (“DUI”), one for violating OCGA § 40-6-391 (a) (1) (DUI less safe), and the other for violating OCGA § 40-6-391 (a) (5) (DUI per se). Smith appeals from the judgment of conviction, contending that the evidence was insufficient to support his conviction for impeding the flow of traffic, that the trial court erred in denying his motions to suppress and to sever offenses, and that the trial court erred in admitting certain evidence. For the reasons that follow, we affirm the judgment in part, reverse in part, vacate in part, and remand for resentencing.

Viewed in the light most favorable to the jury’s verdict, the record shows as follows. At 2:48 a.m. on March 1, 2015, an officer with the Doraville Police Department observed a truck slow down and stop for no apparent reason in front of another vehicle at a green traffic light on Peachtree Industrial Boulevard, a highway, at the intersection of 1-285 in DeKalb County The officer observed the vehicle behind Smith signal, negotiate traffic, and then maneuver around the truck in order to proceed through the intersection. The officer pulled his patrol car behind the stopped truck, activated his blue lights, and went to investigate. A video recording tendered into evidence supported the officer’s account of these events and showed the traffic conditions at the time of the stop.

The officer observed that the driver, later identified as Smith, had his eyes closed and his head tilted backward onto the headrest, as if he was falling asleep. Smith’s foot was pressed against the brake pedal, but the truck was still in drive. When the officer opened the driver’s side door, he smelled the strong odor of an alcoholic beverage. Smith was drowsy and slow to respond to the officer’s questions, his eyes were red and watery, and his movements were sluggish. When the officer asked Smith for his driver’s license, Smith said that he had left it at his girlfriend’s house. Smith told the officer that he had consumed two or three beers at a friend’s house.

When the officer asked Smith to step out of his truck, Smith lost his balance and almost fell. The officer could smell the odor of an alcoholic beverage on Smith’s breath. The officer asked Smith to perform field sobriety tests, and Smith agreed. The officer administered a horizontal gaze nystagmus test, and the officer testified that Smith exhibited six out of six clues indicating intoxication. Smith’s performance on the remaining field sobriety tests (walk and turn, one-leg stand) was, according to the officer, “absolutely horrible.” The video recording of these field sobriety tests, which shows Smith stumbling, swaying, and waving his arms, was admitted in evidence. Smith also took an alco-sensor test, which indicated that Smith had consumed an alcoholic beverage. The officer testified that he arrested Smith for DUI less safe based on this evidence. About 30 minutes later, at the Doraville Police Department, Smith submitted to an Intoxilyzer 9000 test, which returned blood alcohol readings of 0.145 and 0.142. The State also introduced into evidence Smith’s booking photo, which depicted him with his eyes half-closed.

1. Smith contends that the evidence was insufficient to support the jury’s verdict on the charge of impeding the flow of traffic because other lanes of travel remained open, allowing traffic to flow around him. For the following reasons, we disagree and affirm the judgment of conviction.

OCGA § 40-6-184 (a) provides: “No person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation.” The record shows that Smith slowed his truck and then stopped at a green light on a busy highway, forcing traffic to maneuver around him. Although traffic was not stopped completely by Smith’s conduct, the evidence authorized a jury to conclude that, given the circumstances, Smith interfered with other drivers’ ability to proceed normally and safely through a busy intersection, thereby impeding the normal and reasonable movement of traffic. There was no evidence adduced from which a jury could infer that Smith stopped his truck for safety reasons. Rather, the evidence supports the reasonable inference that Smith slowed to a stop because he was impaired by alcohol consumption. This evidence is sufficient to support the jury’s verdict beyond a reasonable doubt. See, e.g., Shell v. State, 315 Ga. App. 628, 630 (1) (727 SE2d 243) (2012) (Although the video showed that another vehicle was able to pass the defendant, the officer testified that traffic backed up behind the defendant, creating a safety hazard. This evidence was sufficient to allow the jury to find that the defendant was impeding the flow of traffic in violation of OCGA § 40-6-184 (a).); Dunn v. State, 289 Ga. App. 585, 587-588 (3) (657 SE2d 649) (2008) (The defendant’s conviction for impeding the flow of traffic was supported by evidence showing that, without reasonable cause, the defendant was driving his truck very slowly on an interstate highway with a minimum posted speed limit, and that, as a result, the traffic behind the truck was backed up.).

2. Smith argues that the trial court erred in denying his motion to suppress the evidence of his intoxication because the officer did not have the reasonable articulable suspicion necessary to support a stop of his vehicle.

“It is well settled law that[,] before stopping a car, an officer must have specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” (Punctuation and footnote omitted.) Christy v. State, 315 Ga. App. 647, 650 (1) (727 SE2d 269) (2012). “[T]he stop of a vehicle is authorized if an officer observes the commission of a traffic offense.” (Citations and punctuation omitted.) Taylor v. State, 230 Ga. App. 749, 750 (1) (a) (498 SE2d 113) (1998).

The record supports the trial court’s denial of the motion to suppress. The trial court was authorized to deny the motion based upon the officer’s testimony and the video evidence showing that Smith slowed down and came to a stop at a green traffic light on a highway for no apparent reason, forcing traffic to maneuver around him. The officer’s observations provided him with sufficient cause to initiate a traffic stop for a violation of OCGA § 40-6-184, impedingthe flow of traffic. See, e.g., Rowe v. State, 314 Ga. App. 747, 749-750 (1) (725 SE2d 861) (2012) (Holding that, when the evidence showed that the officer had a reasonable basis for concluding that the defendant’s vehiclewas impedingthe flow oftrafficin violation ofOCGA § 40-6-184, an investigatory stop was authorized.); Taylor v. State, 230 Ga. App. at 750 (1) (a) (accord); Gabbidon v. State, 184 Ga. App. 475, 475, 476 (2) (361 SE2d 861) (1987) (accord). This claim of error is without merit.

3. Smith contends that the trial court erred in denying his untimely motion to sever the counts of the accusation and to try the charge of impeding the movement of traffic separately from the DUI counts.

Where two offenses have been joined because they are based on (1) the same conduct, (2) on a series of connected acts, or (3) on a series of acts constituting parts of a single plan or scheme, the trial judge has discretion to decide whether or not to sever offenses. The trial court should sever the offenses if severance is appropriate to promote a fair determination of guilt or innocence as to each offense.

(Citations and punctuation omitted.) Jackson v. State, 276 Ga. App. 77, 78 (1) (622 SE2d 423) (2005). Smith has not shown that the trial court abused its discretion in denying the motion to sever. The offenses arose out of the same conduct, and there is no evidence in the record that severance was necessary to promote a fair determination of Smith’s guilt or innocence on each count of the indictment. Consequently, this claim of error is without merit. See id.

4. Smith contends that the trial court erred in admitting the certificates of inspection for the Intoxilyzer 9000 on the grounds that the State failed to list the name of the inspector who signed the certificates on the State’s witness list and because the State failed to provide Smith with copies of the certificates during discovery.

In Brown v. State, 268 Ga. 76, 80 (485 SE2d 486) (1997), the Supreme Court of Georgia held that such inspection certificates merely memorialize the fact that all required calibration tests have been made and that the device passed those tests. The inspection certificates are not testimonial in nature. Rackoff v. State, 281 Ga. 306, 309 (2) (637 SE2d 706) (2006). Because an inspection certificate is not testimonial in nature, a defendant has no right to confront the inspector who produced it, and the State need not produce the inspector as a witness at trial in order to introduce the certificates into evidence. Phillips v. State, 324 Ga. App. 728, 733 (751 SE2d 526) (2013). Thus, Smith has not shown that the trial court erred in admitting the certificates on the ground that the State failed to name as a witness the person who inspected the Intoxilyzer. See id.

Additionally, Smith did not object to the admission of the certificates on the ground that they were not provided in discovery. Therefore, this claim of error has not been preserved for our review. See Chesser v. State, 228 Ga. App. 164, 165 (1) (a) (491 SE2d 213) (1997) (defendant waived on appeal all issues of admissibility to which he failed to pose a specific objection at trial).

5. Smith contends that the trial court erred in admitting the results of his Intoxilyzer 9000 breath test because the officer provided him with misleading information concerning the consequences of his refusal to submit to the test. The State concedes that the officer provided misleading information, but argues that the error does not require a new trial given the overwhelming evidence of Smith’s guilt on the DUI less safe offense. For the following reasons, we agree.

The record shows that Smith does not have a Georgia driver’s license. He was licensed to drive in South Carolina, but at the time of his arrest, his license had been suspended. Smith agreed to submit to the Intoxilyzer test, but only after he was advised by the arresting officer that, if he refused the test, “they will turn around and suspend your license for a year.” The State concedes that the officer’s statement was substantially misleading because the Georgia Department of Driver Services has no authority to suspend or revoke the driver’s license of a nonresident motorist. Rather, the Department is only authorized to revoke or suspend the nonresident’s privilege of driving in Georgia pursuant to OCGA § 40-5-51 (a). See State v. Barnard, 321 Ga. App. 20, 23-24 (1) (740 SE2d 837) (2013) (The Department “has no authority to suspend or revoke the driver’s license of a nonresident motorist.”) (Footnote omitted.). Because this misleading information may have affected Smith’s decision to consent to the Intoxilyzer test, the court’s decision to admit the test results in evidence was error. See id. The State concedes that the error is harmful with respect to a conviction for DUI per se; however, it argues that, with respect to the DUI less safe conviction, the error was harmless.

In this case, the jury found Smith guilty of both DUI less safe and DUI per se. The trial court imposed a 24-month sentence (10 days in jail, the balance probated), apparently accepting the prosecutor’s recommendation to sentence Smith to 12 months for each DUI conviction and running the sentences concurrently The court’s order, however, does not parse out how the sentences were imposed, and it does not indicate that the DUI offenses merged. It is also unclear whether the court’s 24-month sentence includes Smith’s conviction for impeding the flow of traffic, or if the court merely imposed a fine. In any event,

OCGA § 40-6-391 (a) establishes a single crime of driving in a prohibited condition and subsections (1) through (5) merely define different ways of committing that one crime. [Smith] was prosecuted for violating OCGA § 40-6-391 (a) (1) and (a) (5) and was found guilty of both violations, but could only be convicted and sentenced for one DUI violation.

(Footnotes omitted.) Partridge v. State, 266 Ga. App. 305, 306 (596 SE2d 778) (2004). Given that Smith may only be convicted of one count of DUI, the State argues that this Court should reverse the conviction for DUI per se but affirm the conviction for DUI less safe because the admission of the Intoxilyzer test results was harmless error with respect to the less safe conviction.

Decided September 16, 2016

George C. Creal, Jr., for appellant.

Sherry Boston, Solicitor-General, Wystan B. Getz, David Wong, Assistant Solicitors-General, for appellee.

“The test for harmful error is whether it is ‘highly probable’ that the error contributed to the judgment.” (Citations and punctuation omitted.) Kitchens v. State, 258 Ga. App. 411, 415 (1) (574 SE2d 451) (2002). In this case, the record shows that the State adduced a large amount of compelling evidence from which the jury could find that Smith was a less safe driver due to alcohol intoxication. As detailed above, Smith slowed his vehicle to a stop at a green traffic light on a busy highway near a major expressway interchange, forcing traffic to move around him. The officer found Smith nearly asleep at the wheel, his foot resting on the brake while the truck was in drive. Video and photographic evidence submitted by the State supported the officer’s testimony Smith told the officer that he had consumed a few beers, and the alco-sensor test confirmed that he had, in fact, consumed an alcoholic beverage. The officer testified that Smith smelled strongly of an alcoholic beverage, that his eyes were red and watery, that his movements were sluggish, that he almost fell out of his truck, and he failed all of his field sobriety tests horribly Under these circumstances, it is unlikely that the improperly admitted Intoxilyzer evidence contributed to the judgment because the properly admitted evidence of Smith’s guilt of DUI less safe was overwhelming. Therefore, the admission of the test results in this case was harmless error with respect to Smith’s conviction for DUI less safe. See King v. State, 272 Ga. App. 8, 9-10 (2) (611 SE2d 692) (2005) (“The blood alcohol test result was merely cumulative of other evidence of [the defendant’s] less-safe-to-drive condition, and error, if any, was harmless.”); Parker v. State, 259 Ga. App. 236 (576 SE2d 610) (2003); Camp v. State, 259 Ga. App. 228, 230 (2) (576 SE2d 610) (2003); Walsh v. State, 220 Ga. App. 514 (2) (469 SE2d 526) (1996).

Consequently, we reverse Smith’s conviction for DUI per se. We vacate the sentencing order and remand the case to the trial court for resentencing on Smith’s remaining convictions, impeding the flow of traffic, OCGA § 40-6-184 (a), and DUI less safe, OCGA § 40-6-391 (a) (1).

Judgment affirmed in part, reversed in part, and vacated in part, and case remanded for resentencing.

Branch and Mercier, JJ., concur.

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

       At a hearing on a motion to suppress, the trial judge sits as the trier of fact. Miller v. State, 288 Ga. 286, 286 (1) (702 SE2d 888) (2010). Because the trial judge hears the evidence, the judge’s findings based upon conflicting evidence are “analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them].” Id. The trial judge’s decision with regard to questions of fact and credibility “must be accepted unless clearly erroneous.” Id. This Court must construe the evidence “most favorably to the upholding of the trial court’s findings and judgment.” Id.

       Smith filed his motion to sever months after arraignment; hence, it was untimely. See OCGA § 17-7-110 (“All pretrial motions . . . shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court.”). The trial court, in this case, heard and denied the motion on the morning of trial without stating a basis for its decision. It is unclear, therefore, whether the trial court impliedly extended the time for filing the motion. Therefore, we address the merits of Smith’s claim of error.

       OCGA § 40-5-51 (a) provides, in pertinent part: “The privilege of driving a motor vehicle on the highways of this state given to a nonresident under this chapter shall be subject to suspension or revocation by the department only when suspension or revocation is required by law for the violation.”

       See Richards v. State, 269 Ga. 483, 486 (500 SE2d 581) (1998) (“[I]t generally has been held that the erroneous admission of evidence of a defendant’s blood alcohol level in a case involving a conviction for driving with a prohibited alcohol level is harmful error.”) (footnote omitted).