text:
    A15A2197.
    MURRAY v. THE STATE.
    (782 SE2d 694)
   BARNES, Presiding Judge.

Timothy Murray appeals from the denial of his motion for new trial following his conviction for possession of marijuana with intent to distribute and providing a false name to law enforcement. He contends on appeal that the evidence was insufficient to sustain the possession of marijuana with intent to distribute conviction, the trial court erred in denying his motion for directed verdict, and that the trial court erred in failing to charge mistake of fact and entrapment. Following our review, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence.” Green v. State, 323 Ga. App. 832 (748 SE2d 479) (2013). So viewed, the evidence demonstrates that on May 4, 2002, Daphne Howell found that a package originating in California had been delivered to her home. The UPS package was addressed to her, but she was not expecting a delivery from California and she did not know anyone in California. When Howell opened the box, she saw a smaller box wrapped in cellophane that contained a “leafy material” and called police. Police took possession of the package and recovered 10 packages of marijuana weighing approximately 9.6 pounds from inside the box.

The next day, a man came to Howell’s home and asked about the package. Howell was not home, but the man told a contractor working on her home that the package had been mistakenly delivered to Howell’s address. He said that his name was “Mike Fikes” and gave the contractor his telephone number. After Howell provided police with the information, an officer called the number and said that she was Howell’s daughter “Keisha” and arranged to meet “Mike Fikes” at a designated time in the parking lot of the Home Depot on Lawrenceville-Suwanee Road with the package. While they were talking, the man asked the officer if she had the police listening in on the other line, and if she had opened the package. The officer said no, and they planned to meet within 30 to 45 minutes.

At the designated time, the officer arrived at Home Depot, called the number and told the man she knew as “Mike Fikes” that he needed to hurry because she had to go to work. The officer testified that the man who answered was the same man she had spoken to in the initial conversation. The man told her he was in the parking lot, and shortly thereafter Murray drove up and parked near the officer’s waiting car. The officer opened her car’s trunk, Murray picked up the package located in the trunk, examined it, placed it back and said “They got it confused.” The officer signaled a take-down team positioned nearby, and Murray was arrested. Murray had his young daughter in the car with him.

Murray initially told police that his name was “Mike Fikes,” but then later admitted that his name was Timothy Wayne Murray. In a recorded statement to police, Murray said that he met “Mike Fikes” at a club and that Fikes had asked him to pick up the box “from his baby’s mama at Home Depot named Keisha,” and that the box would contain “50 tabs of Ecstasy, or 50 rolls.” He told police that Fikes was waiting on him at a nearby BP station in a green Altima, but the officers who investigated the location found nothing.

At trial, Murray testified that the package was not his and that he was expecting a package containing a stuffed bear and $200 from a cousin who lived in California. He further testified that he had found the ‘Mike Fikes” identification at a club in Birmingham, and commonly used it because he did not have a driver’s license. Murray testified that he had instructed the cousin to address the package to Mike Fikes as well in case he had to show identification. Murray acknowledged that he also had a DeVry College picture identification, but testified that he did not use it because it was not a driver’s license. Murray testified that he gave the police the false story about the rolls of Ecstasy because they had threatened to send his daughter away with DFACS if he did not cooperate. During sentencing, the State introduced Murray’s prior convictions for conspiracy to sell marijuana and possession of cocaine.

1. Murray argues first that the evidence presented at trial was legally insufficient to support his conviction for possession of marijuana with intent to distribute. He contends that the State produced no direct evidence that Murray knew the sealed package contained marijuana or that he had the intent to distribute the marijuana, and thus under former OCGA § 24-4-6, “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Murray contends that the State failed to exclude every reasonable hypothesis except that of his guilt.

A conviction for possession can be based on constructive possession under certain conditions:

A person may be found to have had constructive possession of contraband if it is shown that he had both the power and the intention at a given time to exercise dominion or control over it. A finding of constructive possession must be based upon some connection between the defendant and the contraband other than mere spatial proximity.

(Punctuation and footnote omitted.) Thurmond v. State, 304 Ga. App. 587, 591 (2) (696 SE2d 516) (2010). While the evidence is circumstantial with regard to Murray’s constructive possession of the contraband, only reasonable alternative hypotheses must be excluded, and “it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt.” (Citation, punctuation and footnote omitted; emphasis in original.) Peppers v. State, 261 Ga. 338, 339 (1) (404 SE2d 788) (1991). “Whether the circumstantial evidence is sufficient to exclude every reasonable hypothesis save that of defendant’s guilt is a question for the jury unless the verdict is insupportable as a matter of law.” Martin v. State, 201 Ga.App. 716, 718 (1) (b) (411 SE2d 910) (1991). See also Vega v. State, 285 Ga. 32, 33 (1) (673 SE2d 223) (2009) (“ ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ ”) (citation and punctuation omitted).

In this case, evidence of Murray’s behavior in attempting to obtain the package, including questioning Howell about whether she had contacted police and had opened the package, attempting to conceal his identity by using a false name, and his previous convictions for conspiracy to sell marijuana and possession of cocaine provided sufficient evidence from which a rational trier of fact could conclude, beyond a reasonable doubt, that he had knowledge of the presence of the marijuana in the package and the power and intention to exercise control over it. Thus, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Murray guilty beyond a reasonable doubt of possession of marijuana with intent to distribute. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

2. Murray also argues that the trial court erred by failing to direct a verdict of acquittal on the possession of marijuana with intent to distribute count. However, the standard of review for denial of a motion for directed verdict of acquittal is the same test as that set forth in Jackson v. Virginia. See Yat v. State, 279 Ga. 611, 612-613 (1) (619 SE2d 637) (2005). And, as explained in Division 1, the evidence presented in this case was legally sufficient under that standard.

3. Murray also contends that the trial court erred in failing to charge mistake of fact. He asserts that the trial court’s failure to charge mistake of fact sua sponte was harmful as a matter of law because it was an affirmative defense raised by the evidence. Murray contends that the charge was justified because of his “mistake of fact regarding the contents of the package,” specifically that he thought the package contained a teddy bear and cash.

In his statement to police, Murray said that he believed the package contained rolls of Ecstasy, and that “Mike Fikes” promised him $1,000 and 50 rolls of Ecstasy to pick up the package from Keisha, who was Mike’s baby’s mother. At trial, he testified that he did not know anyone named “Mike Fikes” and had found the identification on the floor of a club, that he never possessed the box, and that he had given police a false statement because they had threatened to have DFACS take his daughter.

Mistake of fact represents an affirmative defense, under which “[a] person shall not be found guilty of a crime if the act . . . constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.” OCGA § 16-3-5. Murray did not affirmatively request a charge on mistake of fact or object to the omission of the charge, however “[t]he trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge.” (Citation and punctuation omitted.) Price v. State, 289 Ga. 459, 459 (2) (712 SE2d 828) (2011).

Here, even assuming that despite’s Murray’s assertion during his trial testimony that he never possessed the package, the evidence could be construed to raise the affirmative defense of mistake of fact, we find no error in the trial court’s failure to sua sponte give the charge on mistake of fact. “Atrial court... need not specifically charge on an affirmative defense when the entire charge fairly presents the issues, including the defendant’s theory, to the jury.” Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991).

In this case, the trial court charged the jury on the presumption of innocence, the State’s burden to prove Murray’s guilt beyond a reasonable doubt, credibility of witnesses, party to a crime, criminal intent as an essential element of the crimes, and convictions based on circumstantial evidence. The trial court further charged that mere presence at the scene would not support Murray’s conviction, and, with regard to the element of knowledge, that if the evidence showed “that the defendant had no knowledge that a crime was being committed or that the defendant did not knowingly and intentionally commit, participate, or help in the commission of the alleged offense, then it would be your duty to acquit the defendant.” Thus, because the charge as a whole fairly presented Murray’s defense to the jury, the trial court did not err in failing to charge mistake of fact.

4. Murray also contends that the trial court erred in failing to instruct the jury on the affirmative defense of entrapment.

As a general rule, in order to raise the defense of entrapment, the defendant must first admit the commission of the crime and then show that he did so because of the unlawful solicitation or inducement of a law enforcement officer. The rationale for this rule is that it is thought to be factually inconsistent and confusing for a defendant to deny that he committed a criminal act and simultaneously to complain that he was entrapped into its commission. But, if a reasonable inference of entrapment may be drawn by a rational jury from the State’s evidence, the defendant is entitled to a jury charge on entrapment unless he has presented evidence of entrapment inconsistent with his denial of the commission of the crime.

(Citations and punctuation omitted.) St. Jean v. State, 255 Ga. App. 129, 130 (564 SE2d 534) (2002). Murray did not assert a defense of entrapment at trial, request that it be charged, or admit to committing the crime, but contends on appeal that the sole evidence of entrapment stemmed from the State’s evidence and thus there was no requirement that he admit to the commission of the crime.

“Entrapment requires proof that (1) the idea of the crime originated with the state agent; (2) the agent’s undue persuasion, incitement or deceit induced the crime; and (3) the defendant was not predisposed to commit the crime.” (Citations and punctuation omitted.) Campbell v. State, 281 Ga. App. 503 (1) (636 SE2d 687) (2006). See OCGA § 16-3-25. There is no “entrapment where the agent merely furnishes an opportunity to a defendant who is ready to commit the offense.” (Citation and punctuation omitted.) Campbell, 281 Ga. App. at 503 (1).

Here, the evidence demonstrates that while the police provided the opportunity for Murray to pick up the package, they did not put the contraband in the package, mail the package, or induce Murray to track the package down. Murray visited Howell’s home several times and left his number for her to contact him so that he could pick up the package. This evidence does not demand a finding of entrapment, and thus the trial court did not err in failing to charge the jury on this defense.

Decided February 9, 2016

Frances C. Kuo, for appellant.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

Judgment affirmed.

Peterson, J., concurs. McMillian, J., concurs fully in Divisions 3 and 4 and in judgment only in Divisions 1 and 2.

       Murray was charged with possession of cocaine with intent to distribute but pled guilty to the lesser included charge of possession of cocaine.

       This case was tried under Georgia’s old Evidence Code. Former OCGA § 24-4-6 is now codified in the new Evidence Code as OCGA § 24-14-6.


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A15A2110.
    SMITH v. THE STATE.
    (781 SE2d 400)
   ANDREWS, Presiding Judge.

Pursuant to the grant of an out-of-time appeal, Anthony Smith appeals pro se from the judgment of conviction entered on his non-negotiated guilty pleas to the offenses of aggravated assault in violation of OCGA § 16-5-21; robbery in violation of OCGA § 16-8-40; and theft by receiving stolen property in violation of OCGA § 16-8-7. For the following reasons, we affirm in part, vacate in part, and remand the case to the trial court for further proceedings.

Smith contends that he was denied his first appeal of right because his counsel in the trial court provided ineffective assistance by failing to advise him about defects in the above three counts of the indictment to which he pled guilty.

Out-of-time appeals are designed to address the constitutional concerns that arise when a criminal defendant is denied his first appeal of right because the counsel to which he was constitutionally entitled to assist him in that appeal was professionally deficient in not advising him to file a timely appeal and that deficiency caused prejudice. Thus, an out-of-time appeal is appropriate when a direct appeal was not taken due to ineffective assistance of counsel.

Wetherington v. State, 296 Ga. 451, 453 (769 SE2d 53) (2015) (citation and punctuation omitted). Initially, we note that,

once a defendant has pled guilty to the offenses charged, an out-of-time appeal is not available to raise independent claims alleging the deprivation of constitutional rights, which occurred prior to the entry of a guilty plea. With a few limited exceptions, a plea of guilty generally waives all defenses except that based on the knowing and voluntary nature of the plea. An exception will only be made if the error goes to the very power of the State to bring the defendant into court.

Id. at 454 (citations and punctuation omitted). Smith’s claims on appeal fall within exceptions to the waiver rule. Smith’s guilty plea did not waive his claims that the aggravated assault count to which he pled guilty was void because it failed to charge him with a crime, and that the robbery and theft by receiving stolen property counts to which he pled guilty were mutually exclusive. Wright v. Hall, 281 Ga. 318, 319 (638 SE2d 270) (2006); see Addison v. State, 239 Ga. 622, 624 (238 SE2d 411) (1977); Menna v. New York, 423 U. S. 61, 62, n. 2 (96 SCt 241, 46 LE2d 195) (1975).

But even though Smith’s claims were not waived by his guilty pleas,

a defendant is not entitled to an out-of-time appeal unless he had the right to file a direct appeal. And a direct appeal from a judgment of conviction and sentence entered on a guilty plea is available only if the issue on appeal can be resolved by reference to facts on the record. For this reason, the ability to decide the appeal based on the existing record is the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty.

Burch v. State, 293 Ga. 816, 816 (750 SE2d 141) (2013) (citation and punctuation omitted). The trial court correctly found that both of Smith’s claims can be resolved solely by reference to the existing record.

We find no merit to Smith’s claim that the count of the indictment charging him with aggravated assault was void because it failed to allege a violation of OCGA § 16-5-21. On this count, the indictment charged that Smith committed the offense of aggravated assault when he “knock [ed] [the victim] to the ground causing a serious wound to the [victim’s] head,” and did so by “a means likely to cause serious bodily injury when used offensively against a person.” These allegations were sufficient to place Smith on notice that he was being charged with aggravated assault by assaulting the victim “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (b) (2). “In charging aggravated assault with a deadly weapon under OCGA § 16-5-21 [(b)] (2), it is sufficient for the indictment implicitly to allege the use of a deadly weapon or an object [including hands or fists] likely to cause serious bodily injury when used offensively.” Reed v. State, 291 Ga. 10, 11 (727 SE2d 112) (2012); Richards v. State, 222 Ga. App. 853, 853-854 (476 SE2d 598) (1996) (hands and fists not deadly weapons per se under OCGA § 16-5-21 but jury may find them to be deadly depending on use, wounds inflicted, and other circumstances). The allegation that Smith “knock [ed]” the victim to the ground generally implied Smith’s use of hands, fists, or other object. “In the context of this indictment, the only possible implication of that term is that a deadly weapon was used,” and that Smith was sufficiently placed on notice that he was charged with aggravated assault. Morgan v. State, 275 Ga. 222, 227 (564 SE2d 192) (2002).

In separate counts of the indictment, Smith was charged with: (1) robbery in violation of OCGA § 16-8-40 (a) (1) by using force to take a vehicle owned by the victim from the person and immediate presence of the victim; and (2) theft by receiving stolen property in violation of OCGA § 16-8-7 by receiving and retaining the same stolen vehicle which he knew or should have known was stolen. The State concedes that, by pleading guilty to both of these counts, Smith was convicted of crimes that are mutually exclusive of each other. Thomas v. State, 261 Ga. 854, 855 (413 SE2d 196) (1992).

There is no doubt that one cannot be convicted of both robbery of a vehicle and theft by receiving that vehicle. The offense of theft by receiving is intended to catch the person who buys or receives stolen goods, as distinct from the principal thief. An essential element of the crime of theft by receiving is, that the goods had been stolen by some person other than the accused.

Id. at 855 (citations and punctuation omitted). Accordingly, Smith’s guilty pleas for robbery and theft by receiving are vacated, the convictions based on those pleas are likewise vacated, and the case remanded for further proceedings as to those counts of the indictment. Id. at 855-856.

Because all of Smith’s guilty pleas resulted from a nonnegotiated plea agreement, we find no basis to conclude that our ruling with respect to the guilty pleas on the robbery and theft by receiving charges undermines the validity of the guilty plea and conviction on the charge of aggravated assault, which is affirmed. See Clue v. State, 273 Ga. App. 672, 674, 675, n. 3 (615 SE2d 800) (2005).

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

Miller, P. J., and Branch, J., concur.

Decided January 25, 2016

Reconsideration dismissed February 10,2016

Anthony Smith, pro se.

Paul L. Howard, Jr., District Attorney, David K. Getachew-Smith, Assistant District Attorney, for appellee.


author: MILLER, Presiding Judge.

text:
    A15A1636.
    MOON v. THE STATE.
    (782 SE2d 699)
   MILLER, Presiding Judge.

Following a jury trial, Sol Jason Moon was convicted on one count of aggravated child molestation (OCGA § 16-6-4 (c)), two counts of aggravated sexual battery (OCGA § 16-6-22.2 (b)), three counts of child molestation (OCGA § 16-6-4 (a) (1)), and one count of sexual exploitation of children (OCGA § 16-12-100 (b) (8)). Moon filed a motion for new trial, which the trial court denied. On appeal, Moon contends that the evidence was insufficient to sustain his convictions as to certain counts; that a fatal variance existed between the indictment and the evidence presented at trial as to the offense of sexual exploitation of children; that his trial counsel rendered ineffective assistance; and that the trial court erred in failing to impose a split sentence on his child molestation and sexual exploitation of children convictions. We reject Moon’s arguments that the evidence was insufficient or that he is otherwise entitled to a new trial based on a fatal variance or ineffective assistance of counsel, but nonetheless agree that the trial court erred in failing to impose a split sentence as mandated by Georgia law.

Upon review of a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). We neither weigh the evidence nor assess the credibility of the witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the appellant guilty of each of the charged offenses beyond a reasonable doubt. See Howard v. State, 319 Ga. App. 621, 621 (737 SE2d 722) (2013).

So construed, the evidence adduced at trial shows that Moon’s wife, “Mama Moon,” ran a daycare center in their family home in which she watched approximately 12 to 15 children daily. Moon, who the children referred to as “Papa Moon,” was generally home and had regular contact and interaction with them. While at the Moon residence, the female children ordinarily played in the “girls’ room” upstairs or the “playroom” in the garage.

N. M. attended daycare at Moon’s residence for approximately five years, beginning when she was four or five years old. In May 2011, N. M.’s friend learned during a sleepover that Moon had been inappropriately touching N. M. in the playroom. The friend encouraged then ten-year-old N. M. to tell an adult and when N. M. refused, the friend disclosed the abuse to her mother. Ultimately, a school counselor contacted N. M.’s mother.

When questioned by her mother, N. M. immediately became emotional and disclosed the abuse she had suffered for years. N. M. further revealed that a second child, M. O., was often present during and subject to the same abuse by Moon.

M. 0. was also ten years old and a long-time attendee of the daycare at the Moon residence. After learning about N. M.’s outcry, M. O.’s mother approached her and inquired as to whether she had been subjected to improper touching. M. 0. confirmed that she had and named Moon as the perpetrator.

N. M. and M. 0. were then interviewed separately by a criminal investigator specially trained in conducting forensic interviews of children. N. M. reported that the abuse began when she was approximately four or five years old and continued until she was seven. Moon would take her into the playroom or the upstairs girls’ room, where he would instruct her to pull down her pants and he would touch outside and inside her vagina. She recounted several instances during which Moon made her touch his penis, and that sometimes “pus” came out. M. O. was often present, and N. M. observed Moon abuse M. O. in the same manner.

M. O. gave a similar account, stating that the abuse began when she was approximately five years old, Moon would touch the outside and inside of her vagina, and sometimes it hurt. She further stated that Moon made her hold his penis numerous times and that “pee” occasionally came out.

Both girls stated that Moon threatened if they told anyone about the abuse, he would go to jail and Mama Moon would be poor and homeless. They each testified to the above events at trial.

During the course of her investigation, the criminal investigator learned of two additional children who had been sexually abused by Moon. R. S. and A. M., who were both seven years old at the time of Moon’s arrest, had been attending daycare at Moon’s residence for several years. R. S. reported that Moon had repeatedly touched the outside and inside of her vagina in the playroom and he made her touch his penis. Moon also told R. S. that if she told anyone of the abuse, he would go to jail and Mama Moon would be forced to live on the streets. A. M. likewise reported that Moon placed his hand inside her panties and touched her vagina on more than one occasion while she attended daycare at his home. Both R. S. and A. M. also testified at trial.

A search of Moon’s residence resulted in the seizure of his personal laptop computer and the discovery of an 8-millimeter cassette tape containing video footage that Moon had recorded on a hidden camera. The video cassette depicted two girls dressing and undressing while playing dress-up in the playroom, and Moon’s voice can be heard as he set up the camera to record them. The girls, who were eighteen and twenty-two years old at the time of trial but were six and ten years old, respectively, in the video, testified that they had previously attended daycare at the Moon residence and were not aware that they were being recorded. The cassette tape was introduced at trial as similar transaction evidence.

A forensic search of Moon’s laptop revealed images of child pornography that Moon had attempted to delete, as well as numerous visits to pornographic websites purporting to depict young women and girls, accessed with the user name “Papa Moon.” An FBI agent testified that one of the children depicted in the recovered images was known to be 11 years old at the time the image was taken. In addition to offering the testimony of the child victims, the State admitted copies of the pornographic images depicting children that had been retrieved from Moon’s laptop computer.

1. Moon contends that the evidence was insufficient to support his conviction on several counts of the indictment. We will address each in turn.

(a) Moon contends that the State failed to prove that he penetrated the vagina of N. M. and that such penetration lacked consent so as to establish the crime of aggravated sexual battery. We disagree.

The crime of aggravated sexual battery requires proof that an accused “intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person.” OCGA § 16-6-22.2 (b). Aperson’s finger constitutes a “foreign object” for the purposes of the statute. See Reinhard v. State, 331 Ga. App. 235, 237 (1) (a) (770 SE2d 314) (2015).

N. M. told the investigator and also testified at trial that Moon stuck his fingers inside her vagina and that it felt uncomfortable. This testimony alone was sufficient to establish the element of penetration. See OCGA § 24-14-8 (“The testimony of a single witness is generally sufficient to establish a fact.”); Aaron v. State, 275 Ga. App. 269, 269 (1) (620 SE2d 499) (2005) (victim’s testimony that appellant “played around” inside her vagina provided sufficient evidence of aggravated sexual battery).

Moon further argues that the State failed to prove lack of consent by N. M. to the sexual contact. The Supreme Court of Georgia has recently held that the victim’s age, alone, is insufficient to show a lack of consent to the crime of sexual battery because such a construction of the statute could potentially criminalize a wide range of apparently innocent conduct. See Watson v. State, 297 Ga. 718, 720 (2) (777 SE2d 677) (2015); see also OCGA § 16-6-22.1 (b).

Pretermitting whether the holding in Watson also extends to the crime of aggravated sexual battery, the State in this case presented other evidence, aside from N. M.’s age, to establish that she did not consent to Moon touching her vagina. Specifically, in addition to testifying to the countless times over a period of years that Moon touched her vagina, there was evidence that she was forced to touch Moon’s penis and that Moon threatened her by saying that Mama Moon would be poor and homeless if N. M. disclosed the abuse. Regardless of her age, the evidence was sufficient for any rational trier of fact to conclude that Moon’s penetration of N. M.’s vagina was done without consent and for no lawful purpose, and constituted criminal conduct beyond a reasonable doubt. See OCGA § 16-6-22.2 (b); Madison v. State, 329 Ga. App. 856, 863 (1) (b) (766 SE2d 206) (2014) (affirming appellant’s sexual battery convictions and holding that evidence that victim feared appellant was sufficient to authorize the jury to conclude that she did not consent to his improper touching).

(b) Moon asserts that the evidence was insufficient to prove that he caused injury to M. O.’s vagina such as to prove the element of aggravated child molestation. Again, we disagree.

“A person commits the offense of child molestation when such person ... [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a) (1). The crime advances to one of aggravated child molestation when the victim is physically injured. See OCGA § 16-6-4 (c). Significantly, a child’s testimony that the molestation was painful is sufficient to prove the element of physical injury. See Mangham v. State, 291 Ga. App. 696, 697 (662 SE2d 789) (2008).

Here, M. O. testified that Moon inserted his finger into her vagina “[a] couple times a week” over a period of years and that “[i]t hurt.” This testimony sufficiently proved that M. O. was physically injured while being sexually abused by Moon. See Grooms v. State, 261 Ga. App. 549, 550 (1) (583 SE2d 216) (2003) (“The victim’s testimony indicating the molestation ‘hurt’ sufficed to prove the element of physical injury.”) (footnote omitted); see also Mangham, supra, 291 Ga. App. at 697 (same).

(c) Moon also argues that the State failed to prove that he penetrated the vagina of R. S., or that such penetration lacked consent so as to prove aggravated sexual battery.

R. S. attended daycare at the Moons’ residence beginning when she was two months old, and remained there until she was six years old. She testified that Moon inserted his finger inside her vagina on numerous occasions. This evidence was sufficient to prove that Moon penetrated R. S.’s vagina with a foreign object. See OCGA § 16-6-22.2 (b); Reinhard, supra, 331 Ga. App. at 237 (1) (a); Aaron, supra, 275 Ga. App. at 269 (1).

Just as with N. M., the evidence showed that, in addition to repeatedly touching her vagina over a period of years, Moon made R. S. touch his penis and threatened her by stating that Mama Moon would be forced to the streets if she told anyone. Accordingly, the evidence was overwhelming and any reasonable trier of fact need not rely on R. S.’s age alone to conclude that Moon acted without consent and for no lawful purpose. See OCGA § 16-6-22.2 (b); Madison, supra, 329 Ga. App. at 863 (1) (b).

2. Moon argues that there was a fatal variance between the indictment and the evidence presented at trial as to the offense of sexual exploitation of children. Specifically, Moon contends that a reversal of this conviction is required because the indictment alleged that he knowingly possessed and controlled “a photograph depicting a minor . . . under the age of 18 years, engaged in sexually explicit conduct,” but the evidence showed instead that the child pornography he possessed was in the form of digital images. We discern no error.

“Not every variance in proof from that alleged in the indictment is fatal.” (Citation and punctuation omitted.) Wegman-Fakunle v. State, 277 Ga. App. 198, 200 (2) (626 SE2d 170) (2006). The fundamental test is to determine whether (1) the accused was definitely informed of the charges against him so as to enable him to present his defense and not to be taken by surprise, and (2) the accused was adequately protected against another prosecution for the same offense. See Delacruz v. State, 280. Ga. 392, 396 (3) (627 SE2d 579) (2006). Consequently, “[t]he true inquiry ... is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused.” (Citation and punctuation omitted.) Id. Only in the latter cases is the variance considered fatal. Id.

Moon was not subject to either of these dangers when he was indicted for possessing “a photograph” depicting a minor child engaged in sexually explicit conduct, rather than a “digital image” depicting the same. OCGA § 16-12-100 (b) (8) provides: “It is unlawful for any person knowingly to possess or control any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.” (Emphasis supplied.) Digital images are encompassed within the scope of the statute. See State v. Al-Khayyal, 322 Ga. App. 718, 723 (744 SE2d 885) (2013) (holding that data capable of generating images of a minor engaged in sexually explicit conduct constitutes “material” under OCGA § 16-12-100 (b) (8), regardless of whether a machine or electronic device is required to actually view the images); see also State v. Brown, 250 Ga. App. 376, 379 (1) (551 SE2d 773) (2001).

The allegations of the indictment sufficiently apprised Moon of the charge against him and did not mislead him in any way. See Delacruz, supra, 280 Ga. at 396 (3). Moreover, Moon is in no danger of a future prosecution for the same offense, particularly in light of the fact that the prosecutor made copies of and tendered into evidence screen shots of the pornographic images that formed the basis of the charge. Since Moon has failed to prove that his substantial rights were affected by the wording of the indictment, the alleged variance was not fatal. See generally Flores v. State, 298 Ga. App. 574, 578 (2) (680 SE2d 609) (2009) (no fatal variance when indictment alleged that appellant touched the victim’s private area with his penis and the evidence showed only that he touched it with his hand since appellant was not misled or subject to further prosecution); Smith v. State, 210 Ga. App. 634, 636 (2) (d) (437 SE2d 333) (1993) (no fatal variance between indictment alleging aggravated child molestation by penetration of the victim’s anus and evidence at trial which showed no penetration had been achieved).

We further note that the evidence that Moon possessed digital images stored on his computer of minor children engaged in sexually explicit conduct was sufficient to sustain Moon’s conviction on the offense of sexual exploitation of children as indicted. See Al-Khayyal, supra, 322 Ga. App. at 723 (holding evidence that appellant “possessed a computer that served as the storage medium for data files capable of generating visual depictions of minors engaged in sexually explicit conduct” supported his conviction for sexual exploitation of children pursuant to OCGA § 16-12-100 (b) (8)).

3. Moon argues that the trial court erred in denying his motion for new trial on the basis that his trial counsel rendered ineffective assistance. We disagree.

To succeed on a claim for ineffective assistance of trial counsel, Moon must establish both that his trial counsel’s performance was deficient and that the deficient performance prejudiced his defense. See Campos v. State, 263 Ga. App. 119, 120 (587 SE2d 264) (2003); see also Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).

Moon specifically challenges his counsel’s failure to file a general demurrer to the indictment as to the offense of aggravated child molestation because the State failed to allege that he “physically” injured the child victim. See OCGA § 16-6-4 (c) (“A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child . . . .”). “The true test of the sufficiency of an indictment to withstand a general demurrer ... is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective.” (Citation and punctuation omitted.) State v. Meeks, 309 Ga. App. 855, 856 (711 SE2d 403) (2011).

Although a physical injury to the victim is an essential element of the crime of aggravated child molestation, the actual use of the word “physical” is not essential when the allegations of the indictment otherwise allege an injury that is, by its very nature, a physical one. The indictment charged that Moon committed aggravated child molestation “by inserting [his] finger... into the vagina of [M. O.]... causing injury to [M. O.’s] vagina.” We fail to see how injury to a vagina could be anything other than physical. Moreover, as set forth in Division 1 (b), settled law makes clear that a victim’s pain during the act of molestation constitutes a physical injury. See Mangham, supra, 291 Ga. App. at 697.

Since Moon could not have a dmitted the facts charged and still be innocent of the crime of aggravated child molestation, the indictment was sufficient to withstand a general demurrer. See Raybon v. State, 309 Ga. App. 365, 367 (710 SE2d 579) (2011). It follows that Moon has failed to carry his burden of proving that his trial counsel’s failure to file the demurrer constituted deficient performance. See Burke v. State, 316 Ga. App. 386, 389 (1) (a) (729 SE2d 531) (2012) (“Failure to make a meritless or futile ... motion cannot be evidence of ineffective assistance.”) (punctuation and footnote omitted).

4. Finally, Moon argues that the trial court erred by failing to impose a split sentence for his convictions on three counts of child molestation and one count of sexual exploitation of children, when the trial court sentenced him to twenty years to serve on each count. OCGA § 17-10-6.2 (b) provides:

. . . [A]ny person convicted of a sexual offense shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense . . . and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year. . . .

As conceded by the State, the “plain and unambiguous” text of the statute mandates that Moon receive a split sentence as to each count of child molestation and sexual exploitation of children for which he was convicted. Clark v. State, 328 Ga. App. 268, 269 (1) (761 SE2d 826) (2014) (statute’s requirement of a split sentence is plain and unambiguous); see New v. State, 327 Ga. App. 87, 108 (755 SE2d 568) (2014) (holding trial court failed to impose the mandatory split sentence on each count of child molestation and sexual exploitation of children). We therefore vacate Moon’s sentence and remand this case to the trial court with specific instructions to resentence Moon consistent with OCGA § 17-10-6.2 (b).

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

Branch and Rickman, JJ., concur.

Decided February 10, 2016

Ross & Pines, Noah H. Pines, for appellant.

Peter J. Skandalakis, District Attorney, Tracy S. Reeves, Jr., Assistant District Attorney, for appellee.

       The jury convicted Moon of a third count of aggravated sexual battery, but the trial court merged it into his conviction on aggravated child molestation for sentencing purposes. The jury found Moon not guilty on four additional counts of aggravated child molestation and one additional count of aggravated sexual battery.

       Moon also asserts that the evidence was insufficient to support his conviction of aggravated sexual battery as alleged in Count 6 of the indictment, but that count merged into his conviction of aggravated child molestation for sentencing purposes. Consequently, we need not consider this assertion. See Rainey v. State, 286 Ga. App. 682, 682, n. 1 (649 SE2d 871) (2007).

       See also Chester v. State, 328 Ga. App. 888, 889 (1) (763 SE2d 272) (2014) (“It is well settled that lack of resistance, induced by fear, is not legally cognizable consent.”) (citation and punctuation omitted); Weldon v. State, 270 Ga. App. 574, 575 (607 SE2d 175) (2004) (appellant’s threats to punish the victim constituted sufficient evidence of force so as to support his conviction on aggravated sodomy).

       Although not enumerated as error, Moon challenges the sufficiency of the indictment, arguing that it is fatally defective because it alleged that he “caus [ed] injury to [M. O.’s] vagina,” but failed to specify that it was a “physical injury.” First, we note that Moon cannot expand his enumeration of error through argument in his brief. See Riggs v. State, 319 Ga. App. 189, 198 (5) (733 SE2d 832) (2012). Regardless, as set forth in Division 3, Moon’s argument lacks merit.

       The respective 20-year sentences were to run concurrently with Moon’s consecutive life sentences for aggravated child molestation and aggravated sexual battery.


author: Boggs, Judge.

text:
    A15A1659.
    DRAWDY et al. v. SASSER et al.
    (782 SE2d 706)
   Boggs, Judge.

In this interlocutory appeal, Ronnie and Marla Drawdy (“the Drawdys”) appeal from a superior court order denying their motion to dismiss a custody action in superior court based upon a prior pending action in juvenile court. For the reasons explained below, we affirm.

The record before us shows that in September 2014, Mary Sasser, the maternal grandmother of two minor children (N. W. and C. C.), filed a complaint for custody against her daughter (Lori Sey) and the Drawdys, the alleged temporary guardians of the children. In support of her custody complaint, the grandmother alleged that the mother had signed an affidavit expressing her desire for the grandmother to be awarded custody of the children.

It is undisputed that the Drawdys are not related to the minor children and that they initially became temporary guardians of the children in February 2010 with the mother’s consent. The parties agree that four months later, the mother sought to terminate the temporary guardianship in probate court, but the Drawdys objected. The parties also agree that the probate court transferred the case to juvenile court.

In a motion to dismiss the superior court action, the Drawdys contend that following the transfer to juvenile court, they were awarded a new temporary guardianship in April 2012 based upon the mother’s intervening incarceration. Sasser also asserts that following another oral motion by the mother to terminate the Drawdys’ guardianship in juvenile court, they “filed a motion on or about December 23,201[3]... for the court to grant Guardians permanent guardianship. Said motion for Permanent Guardianship is still pending in the Juvenile Court.” Based upon their alleged temporary guardianship and motion for permanent guardianship in the juvenile court, the Drawdys argued that the superior court lacked jurisdiction to determine custody based upon the doctrine of priority jurisdiction.

In her written briefs in superior court, the grandmother acknowledged that the Drawdys had temporary guardianship of the children. In the hearing on the motion to dismiss, however, the mother’s attorney argued that the initial guardianship was terminated in 2011 when the mother completed a rehabilitation program and that a recent review of court records showed that an order granting a subsequent temporary guardianship to the Drawdys was never filed in probate or juvenile court.

The grandmother’s attorney claimed in the hearing that proper procedures were not followed in the juvenile court to seek permanent guardianship because juvenile courts can only issue a permanent guardianship order in a deprivation case. According to Sasser, the Drawdys could not allege that the children in their physical custody were deprived in order to seek a permanent guardianship in juvenile court.

The Drawdys’ attorney responded that the mother’s continued incarceration would demonstrate that the children were deprived, that her clients had been awarded an existing temporary guardianship, and that the issue of deprivation could be raised in a juvenile court hearing on the request for permanent guardianship.

After additional argument by counsel, the trial court denied the motion to dismiss, concluding that “[i]t is a custody matter which belongs in Superior Court.” At the request of the Drawdys, it granted a certificate of immediate review, and this court granted the Drawdys’ application for an interlocutory appeal.

1. On appeal, the Drawdys continue to assert that the doctrine of priority jurisdiction requires the superior court to cede jurisdiction to the juvenile court. We disagree.

(a) The Juvenile Code in effect at the time the Drawdys filed their motion for permanent guardianship provided that “the juvenile court shall be vested with jurisdiction to appoint a permanent guardian for a child whose custody is a subject of a controversy before the court as a result of an adjudication that the child is deprived. . . .” Former OCGA § 15-11-30.1 (a) (2) (A): We have previously interpreted this Code section to “require[ ] that a child be adjudicated deprived before a juvenile court has the jurisdiction to grant an award of permanent guardianship over that child.” (Citation and footnote omitted.) In the Interest of L. B., 319 Ga. App. 173, 174-175 (1) (735 SE2d 162) (2012).

Here, there is no indication in the record before us that the juvenile court had already adjudicated the children deprived before the motion for permanent guardianship was filed in juvenile court. Consequently, the juvenile court did not yet have jurisdiction to award permanent guardianship at the time the petition for custody was filed in superior court. Simply put, there is no issue of priority jurisdiction with regard to the motion for permanent guardianship as contended by the Drawdys on appeal.

(b) Likewise, any existing temporary guardianship awarded by the juvenile court would not deprive the superior court of jurisdiction in a nondeprivation case. In Barfield v. Butterworth, 323 Ga. App. 156 (746 SE2d 819) (2013) (physical precedent only), we concluded that a temporary guardianship awarded by the probate court did not deprive a superior court of jurisdiction to consider a subsequently-filed petition for custody. Id. at 158-161 (2). As we explained, a temporary guardianship “neither terminates parental rights nor confers permanent custody. See Sheppard v. McCraney, 317 Ga. App. 91, 92, n. 3 (730 SE2d 721) (2012).” Id. at 159-160 (2). Consequently, a temporary guardianship in a nondeprivation case would not foreclose the filing of a petition for permanent custody in superior court, and “an award of permanent custody would necessarily supersede a temporary guardianship.” Id. at 160 (2).

2. In their remaining enumeration of error, the Drawdys assert that they are not proper defendants in the superior court action because they lack standing as nonrelatives to affirmatively seek custody in superior court. They reason that if they “are barred from filing a cross claim for custody, then it stands to reason that the Plaintiff has failed to state a claim against Defendants as contemplated under OCGA § 9-11-12.” We disagree. In addition to any temporary guardianship awarded by the juvenile court, it is clear from the record that the Drawdys also had physical custody of the children at the time of the hearing on their motion to dismiss the custody petition in superior court. They were therefore proper defendants in an action seeking custody of the children, irrespective of their right to affirmatively seek custody in their favor. See OCGA § 9-11-19 (a) (joinder of parties). Cf. Brooks v. Carson, 194 Ga. App. 365, 367 (2) (390 SE2d 859) (1990) (physical precedent only) (decided under former OCGA § 19-9-50), overruled on other grounds, Mayor & Aldermen of the City of Savannah v. Norman J. Bass Constr. Co., 264 Ga. 16, 17 (1) (441 SE2d 63) (1994).

Decided February 10, 2016.

Phillips & Kitchings, Katie A. Smith, for appellants.

James L. Hardin, for appellees.

Judgment affirmed.

Doyle, C. J., and Rickman, J., concur.

       This affidavit does not appear in the record before us.

       Based upon argument of counsel and other briefs submitted in the case it appears that the correct date should be 2013.

       Although the mother’s attorney offered to show the superior court the juvenile court “documents and the transcripts,” the documents were never admitted or placed in the record.

       The new Juvenile Code applies only to juvenile proceedings commenced on and after January 1, 2014. In the Interest of M. F., 298 Ga. 138, 140 (1), n. 4 (780 SE2d 291) (2015). Since the motion for permanent custody in this case was filed in December 2013, the former Juvenile Code applies.


author: Peterson, Judge.

text:
    A15A1927.
    BOLDEN v. THE STATE.
    (782 SE2d 708)
   Peterson, Judge.

Corey Bolden appeals from the denial of his motion for a new trial following his convictions for multiple counts, including kidnapping with bodily injury, aggravated assault (family violence), rape, burglary, and cruelty to children in the third degree. He argues that trial counsel was ineffective for failing to object to a jury charge on burglary, and also argues the trial court erred by failing to merge the rape count with one of the aggravated assault counts, and by asking improper and irrelevant questions of a State witness, which placed Bolden’s character in evidence. Because the aggravated assault and rape were separate and distinct acts, we hold the trial court’s decision not to merge these two counts was proper. We conclude the trial court’s questions to the State’s witness did not constitute error because the questions did not express any opinion. Finally, we hold the failure of Bolden’s trial counsel to object to the jury instructions on burglary, which expanded the basis for conviction beyond that charged in the indictment, amounted to ineffective assistance of counsel. As such, Bolden is entitled to a new trial on the burglary charges, but we affirm his other convictions.

“On appeal, the evidence must be viewed in the light most favorable to support the verdict, and the appellant no longer enjoys a presumption of innocence.” Culver v. State, 230 Ga. App. 224, 224 (496 SE2d 292) (1998) (citing Williams v. State, 228 Ga. App. 698, 699 (1) (492 SE2d 708) (1997)). So viewed, the evidence shows that Bolden fathered three children with the victim, but that Bolden and the victim were not in an ongoing romantic relationship. One evening, Bolden entered the victim’s house through an unlocked back door without permission. Bolden, armed with two knives, attacked the victim in her room, pointing one of the knives in her back and pulling her hair. Bolden removed his clothing and demanded money from the victim, but the victim replied she did not have the money Bolden was seeking. Bolden demanded that the victim remove her clothing, which she initially refused. Bolden then threatened to kill the victim’s mother and minor children, who were also in the house. Bolden forced the victim to masturbate him, proceeded to choke the victim, and demanded oral sex, which he eventually forced the victim to perform, causing her to vomit. The victim escaped to a bathroom, where Bolden again attacked the victim, pulling her hair and throwing her on the bed on her stomach. Bolden proceeded to penetrate the victim both anally and vaginally with his penis. Still armed, Bolden then forced the victim into her vehicle, along with their three children and one of their young cousins. The victim managed to jump out of the vehicle at a stoplight and flag a passing vehicle for help. Bolden continued driving to a relative’s house, and upon discovering that she was not home, abandoned the children in the vehicle and left in another. The oldest of the children managed to ask a passing police officer for help, and Bolden was apprehended soon thereafter.

1. Bolden claims that the trial court erred by failing to merge the rape count with one of the aggravated assault counts. We disagree.

In considering whether the aggravated assault and rape counts should be merged, the court first considers whether the same conduct establishes the commission of both offenses. See Ledford v. State, 289 Ga. 70, 72 (1) (709 SE2d 239) (2011). Unless the same conduct of the accused establishes the commission of both offenses, the rule prohibiting multiple convictions if one crime is included in the other is not implicated. Id. at 71 (1).

A person commits the offense of aggravated assault when he assaults “[w]ith intent to murder, to rape, or to rob” or “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]” OCGA § 16-5-21. A jury is authorized to find that a defendant’s use of his hands can be considered use of a deadly weapon or object that when used offensively is likely to result in serious bodily injury. See Mallon v. State, 253 Ga. App. 51, 53-54 (3) (557 SE2d 409) (2001); Crider v. State, 246 Ga. App. 765, 768 (3) (542 SE2d 163) (2000). A person commits the offense of rape when “he has carnal knowledge of a female forcibly and against her will[.]” OCGA § 16-6-l(a)(l) (punctuation omitted). “Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.” OCGA § 16-6-l(a).

Bolden’s choking of the victim served as the basis for the aggravated assault count. This aggravated assault occurred prior to the victim escaping to the bathroom, and well in advance of the rape. He was armed with at least one knife at the time, and threatened to kill the victim, her mother, and their children. The victim vomited and escaped to the bathroom. Moments later, Bolden committed rape when he came into the bathroom, pulled the victim’s hair, threw her on the bed on her stomach, and penetrated her both anally and vaginally with his penis. The act of choking the victim was a “separate and distinct” act of “force and intimidation outside that necessary to accomplish the rape” and resulted in injury to the victim outside of the rape, as the victim had marks on her neck. Williams v. State, 295 Ga. App. 9, 14 (2) (b) (670 SE2d 828) (2008) (citation omitted). Further, “[b]ecause the two convictions are based on separate acts, the required evidence test of Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006) is inapplicable.” Thomas v. State, 325 Ga. App. 682, 685 (2), n.3 (754 SE2d 661) (2014).

Thus, the trial court did not err in failing to merge the convictions for aggravated assault and rape, and the jury was authorized to find Bolden guilty of both rape and aggravated assault under the circumstances.

2. Bolden next asserts that the trial court erred by asking improper and irrelevant questions of a State witness, thereby placing Bolden’s character in evidence. Bolden asserts that, during the testimony of the police investigator, the trial court should not have asked whether the witness was referring to the victim or to Bolden’s new girlfriend, and should not have inquired into whether Bolden was paying the victim child support. Bolden argues that these questions reflected the court’s disapproval of his lifestyle and character.

Although Bolden did not object to this line of questioning at trial and did not include the error among those asserted as the basis for his motion for a new trial, under the version of OCGA § 17-8-57 in effect at the time of trial, we must still reverse if we find error. See former OCGA § 17-8-57. See also Goodrum v. State, 269 Ga. App. 397, 399-400 (1) (604 SE2d 251) (2004). But a “trial court may propound questions to any witness to develop the truth of the case.” Id. at 400 (1); see also Perdue v. State, 147 Ga. App. 648, 652 (9) (249 SE2d 657) (1978).

Here, the court asked questions of the police investigator to clarify the identity of the person about whom the investigator was testifying, and to clarify the financial relationship between Bolden and the victim. The court did not express or intimate an opinion as to proof or as to guilt, nor was the questioning argumentative. Therefore we find no error here.

3. Bolden’s final enumeration asserts that his trial counsel was ineffective for failing to object to the trial court’s jury instruction on the burglary counts, arguing that the instruction went beyond the language in the indictment to include an alternate means by which the crimes could have been committed. We agree.

In order to prevail on an ineffective assistance of counsel claim, Bolden “must show that trial counsel’s performance fell below a reasonable standard of conduct and that there existed a reasonable probability that the outcome of the case would have been different had it not been for counsel’s deficient performance.” Scott v. State, 290 Ga. 883, 889 (7) (725 SE2d 305) (2012) (citing Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984)); see also Concepcion v. State, 205 Ga. App. 138, 139 (421 SE2d 554) (1992).

Here, the indictment stated that Bolden committed burglary when he “did without authority enter into the residence” of the victim with the intent to commit rape and aggravated assault. But the trial court originally charged the jury that “[a] person commits the offense of burglary when, without authority, that person enters a dwelling house of another or any room or part of it with the intent to commit a felony.” The trial court went on to charge that

it is not necessary that the alleged felony actually occur or be accomplished. It is only necessary that the evidence show beyond a reasonable doubt that the accused did, without authority, enter or remain in the building or dwelling place of another with the intent to commit an alleged felony.

After commencing deliberations, the jury asked the court to explain the portion of the jury charge including the phrase “or remain in,” and, relatedly, the timing by which the defendant must have developed the requisite intent. The trial court then clarified the jury’s question, stating “as I understand it, the question from the jury — and if this is not correct you need to get me — is that let’s assume for argument sake that we enter a place with one intent and while we’re there we formulate another one.” The foreman confirmed this was the issue submitted to the court for clarification.

In response, the trial court directed the jury to the indictments with respect to the manner in which the burglaries were to have been accomplished, and stated that the jury was to consider whether Bolden “with or without authority” entered the victim’s dwelling “or any room or part of it with the intent to commit a felony.”

Bolden asserts on appeal that the trial court erred by including “or remain” in the original jury instructions, and by including in its response to the jury’s question the additional language “or any room or part of [the dwelling],” because the burglary indictment was limited to Bolden’s entering the victim’s residence, and that his trial counsel was ineffective for not objecting.

A criminal defendant’s right to due process may be endangered when an indictment charges the defendant with committing a crime in a specific manner and the trial court’s jury instruction defines the crime as an act which may be committed in a manner other than the manner alleged in the indictment. The giving of a jury instruction which deviates from the indictment violates due process where there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.

Smith v. State, 310 Ga. App. 418, 421 (1) (714 SE2d 51) (2011) (citation and punctuation omitted).

While instructing the jury that a crime can be committed in a manner different from that charged in the indictment can constitute reversible error, a reversal is not mandated where... the charge as a whole limits the jury’s consideration to the specific manner of committing the crime alleged in the indictment.

Machado v. State, 300 Ga. App. 459, 462 (5) (685 SE2d 428) (2009); see also Dudley v. State, 287 Ga. App. 794, 796 (2) (652 SE2d 840) (2007) (court considers charge “as a whole” in determining whether the charge conformed to the indictment and stated the law accurately); Schneider v. State, 312 Ga. App. 504, 507-508 (2) (718 SE2d 833) (2011).

Here, the trial court referred the jury to the indictment with respect to how the burglary was accomplished and told it to consider whether Bolden was “with or without authority” when he entered the victim’s dwelling, thus eliminating the “or remain in” language and correcting the original error through this limiting instruction. See Lumpkin v. State, 249 Ga. 834, 836-837 (2) (295 SE2d 86) (1982) (finding no error where the trial court recited the statutory definition of the offense, but then limited the jury’s consideration to the specific method of committing the offense “as charged in [the] indictment”) (punctuation omitted).

However, our precedent makes clear that a recharge by the court after the jury has indicated confusion on this point must include limiting instructions confining the jury’s consideration to the elements of the crime as charged in the indictment. Compare Smith, 310 Ga. App. at 422 (1) (finding recharge insufficient where the trial court simply referred the jury to the original charge and the indictment without any further limiting or remedial instruction), Milner v. State, 297 Ga. App. 859, 860-61 (1) (678 SE2d 563) (2009) (recharge referred back to indictment, but did not give a limiting instruction to ensure that the jury would find the defendant guilty of the crime as specifically charged in the indictment) with Wright v. State, 327 Ga. App. 451, 453 (757 SE2d 890) (2014) (finding lack of jury confusion key in rejecting challenge to trial court’s jury instructions). “If there is a reasonable possibility that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment, then the error is harmful.” Chapman v. State, 273 Ga. 865, 868 (2) (548 SE2d 278) (2001) (citation and punctuation omitted).

Here, the trial court’s second set of instructions again expanded the charge beyond the bounds of the indictment by instructing the jury that they could consider whether Bolden entered “any room or part of [the dwelling] with the intent to commit a felony.” The evidence presented at trial included testimony that Bolden entered the victim’s home, armed with a knife. Once inside the victim’s home, the evidence shows that he may have obtained another knife from the victim’s kitchen. The jury heard testimony that once Bolden was in her room, he first demanded money from her and promised to leave if she would provide it. After she responded that she did not have it, Bolden proceeded to choke and later rape the victim. And though he disputes the victim’s version of events, Bolden himself testified that he entered the victim’s home to talk with the victim and asked the victim to give him some money once he was in her room. The jury’s question to the trial court suggests that the jury may have been considering whether it could convict Bolden of burglary if he entered the victim’s residence without the intent to commit an aggravated assault or rape, but then formulated the requisite intent before entering “any room or part of it[.]”

When the jury expressed its confusion, the trial court should have instructed the jury to limit its consideration to determining whether Bolden was guilty of committing burglary in the specific manner alleged in the indictments only — that is, whether Bolden had the intent to commit aggravated assault and rape before entering the victim’s home without authority. See Smith, 310 Ga. App. at 422 (1). Instead, “the trial court aggravated the confusion” by simply referring the jury to the indictments, and repeating the portion of the original charge stating that Bolden could be found guilty of burglary if he entered the victim’s house or “any room or part of it with the intent to commit a felony” with no additional limiting or remedial instruction. Id. Therefore, under the circumstances of this case, the trial court’s instructions create a reasonable possibility that the jury convicted Bolden of the commission of a crime in a manner not charged in the indictment.

Because we conclude that the jury charge was error, it follows that trial counsel’s failure to object to this erroneous jury instruction fell below an objective standard of reasonableness and prejudiced the defendant to the point that a reasonable probability exists that, but for counsel’s deficient performance, the outcome of the trial would have been different, and this amounted to ineffective assistance of counsel. See Hall v. Wheeling, 282 Ga. 86, 87 (1) (646 SE2d 236) (2007). Accordingly, we reverse the trial court’s denial of Bolden’s motion for a new trial with respect to the two burglary counts only.

Decided February 10, 2016.

J. Clayton Culp, for appellant.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Doyle, C. J., and Boggs, J., concur.


text:
    A15A1932.
    D’AGNESE v. WELLS FARGO BANK, N.A.
    (782 SE2d 714)
   Peterson, Judge.

Paul D’Agnese appeals from an order granting a deficiency judgment to Wells Fargo Bank, N.A., whose predecessor loaned money to D’Agnese’s company. D’Agnese does not contest his liability but argues that the trial court erred in granting summary judgment to the bank because the bank did not submit sufficient evidence to prove its damages. We agree, as the bank did not show that the sole document submitted as proof of its damages met the requirements of a summary of voluminous records. We therefore affirm the judgment as to liability but reverse the award of damages and remand for further proceedings consistent with this opinion.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-ll-56(c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

So viewed, this case involves a loan that Wells Fargo’s predecessor, Wachovia Bank, N.A., made to Executive Aero Corp. Extending and modifying a 2006 promissory note for an original loan amount of $1.2 million, Executive Aero in 2008 executed and delivered to Wachovia a promissory note in the principal amount of $477,377.74 plus interest. D’Agnese, chief executive officer of Executive Aero, signed a guaranty for the original loan in 2006 and signed the note on behalf of Executive Aero in 2008. Executive Aero defaulted on the loan by failing to make payments when due.

Wachovia demanded the immediate payment of the entire principal balance on the note, plus all accrued interest and fees. Executive Aero and D Agnese failed to satisfy the debt. Wells Fargo, into which Wachovia merged in 2010, foreclosed upon and sold certain real property that had been pledged by Executive Aero as collateral for the note. The sale, confirmed in a court order, resulted in proceeds of $140,000.

Wells Fargo filed this deficiency action against Executive Aero and D’Agnese, jointly and severally, asserting breach of the note and guaranty and seeking the remaining money due under the loan, including interest and attorney fees. The trial court granted the bank a default judgment in the amount of $468,645.30 against Executive Aero, finding that the company’s answer was not timely filed. Executive Aero did not appeal the default judgment.

Nearly two years after entry of the default judgment, Wells Fargo filed a motion for summary judgment on its claims against D’Agnese. Along with the motion, the bank submitted the affidavit of Robert M. Terway, an officer of the bank. Terway averred that he was familiar with the bank’s credit relationship with Executive Aero and D’Agnese, had access to and knowledge of the loan documents and bank records at issue in the litigation, and was familiar with the bank’s routine practice for maintaining the bank’s business records related to the loan and for calculating the amounts owed on the loan. In addition to describing the history of the loan and attaching copies of the 2006 guaranty, the 2008 note, and the bank’s demand for payment, Ter-way’s affidavit addressed the amounts owed under the loan. Terway stated in his affidavit that Executive Aero and D’Agnese owed the bank $331,817.59 in principal, $146,419.20 in interest and $47,848.68 in attorney fees, explaining how the attorney fees were calculated based on principal and interest owed. Attached to the affidavit was a document described as a printout of the bank’s electronic records reflecting the amounts then owed for principal, interest, and “late charges” on the note. Consistent with the affidavit, the screen shot lists the current balance as $331,817.59 and the interest earned as $146,419.20.

In his response to the motion for summary judgment, D’Agnese did not dispute that he is liable to Wells Fargo under the personal guaranty and related loan documents, but he argued that the motion for summary judgment should be denied because the bank had produced no evidence of damages. Without pointing to any additional evidence in the record beyond Terway’s affidavit, D’Agnese argued that it was “impossible” to determine the damages for which he was liable by reference to the documents attached to Terway’s affidavit. Referring to the screen shot as a “summary statement, wholly con-clusory in nature,” D’Agnese complained that business records that could prove the current balance of the loan are not attached to the affidavit or the complaint. D’Agnese argued that the bank’s “summary of damages” was “inadmissible hearsay.” The trial court rejected those arguments, granting the bank a judgment against D’Agnese for $331,817.59 in principal, plus interest of $178,273.97 and attorney fees and litigation expenses of $51,034.20, for a total of $561,125.76.

In this appeal that followed, D’Agnese argues that the trial court erred by entering judgment for the bank as to damages based upon “incomplete evidence” submitted by the bank. We agree.

We first note that D’Agnese’s appellate brief is missing many citations to the record, in violation of Court of Appeals Rule 25(a)(1). “As this Court has repeatedly stated, it is not the function of this court to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.” Willis v. Allstate Ins. Co., 334 Ga. App. 540, 542 (779 SE2d 744) (2015) (citation and punctuation omitted). Like the court in Wilis, though, ‘because the record in this case is small, we will exercise our discretion to resolve this appeal on the merits.” Id.

Wells Fargo argues that D’Agnese has waived any hearsay objection to the screen shot that accompanies the bank officer’s affidavit because he did not object to it or move to strike it from the record. However, D’Agnese objected to the screen shot in his response to Wells Fargo’s summary judgment motion, filing a response brief that closely mirrors his brief on appeal and described the bank’s “summary of damages” as “a conclusory statement and inadmissible hearsay.” This is sufficient to preserve his appellate argument. Cf. Formaro v. SunTrust Bank, 306 Ga. App. 398, 399-400 (1) (702 SE2d 443) (2010) (failure to raise arguments in an objection to affidavit, motion to strike the affidavit, or in summary judgment constituted waiver).

“Affidavits purporting to establish the amount of a debt without accompanying business records, where appropriate, are insufficient to sustain summary judgment.” Roberts v. Community & Southern Bank, 331 Ga. App. 364, 368-69 (2) (771 SE2d 68) (2015) (citations and punctuation omitted); see also OCGA § 9-ll-56(e) (affidavits offered in support of and opposition to motions for summary judgment “shall be made on personal knowledge” and “[s] worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith”). However, business records generally are admissible as an exception to hearsay found at OCGA § 24-8-803(6) in Georgia’s Evidence Code, with the trial court vested with the discretion to determine whether a proper foundation was laid for use of the exception and whether the circumstances of the document’s preparation indicate trustworthiness. Roberts, 331 Ga. App. at 369 (2). Georgia law also allows for the admission of summaries of voluminous business records that could not be examined conveniently in court, as long as they meet certain criteria discussed in more detail below. Id.; OCGA § 24-10-1006.

Wells Fargo argues that the screen shot is a “data compilation,” one of the types of documents specifically included within Georgia’s business records exception to the hearsay rule. OCGA § 24-8-803(6). In support of that argument, the bank cites case law that stands for the general proposition that printouts from a business’s computer database may be admissible as business records in certain circumstances. See U-Haul Int’l v. Lumbermens Mut. Cas. Co., 576 F.3d 1040 (9th Cir. 2009); Rosenberg v. Collins, 624 F.2d 659 (5th Cir. 1980); WGNX, Inc. v. Gorham, 185 Ga. App. 489 (364 SE2d 621) (1988). The court does not quarrel with that general proposition. However, that does not answer the more specific question of whether a printout that simply says what is currently owed on a debt is always admissible as a business record to prove the creditor’s damages.

Our court, taking case law cited by Wells Fargo into account, already has answered that question in the negative. See Roberts, 331 Ga. App. at 370-71 (2) (citing Rosenberg; WGNX). In Roberts, this Court said that the treatment of reports that provide a detailed transaction history of a loan as business records “is consistent with the fact that the business records exception specifically allows for the admission of a ‘data compilation.’ ” Id. at 371 (2). At the same time, the court contrasted such detailed history reports with documents that simply list the current balance, accrued interest, and fees owed on a bank loan at the time of the litigation, noting that our case law defines the latter as summaries, not business records. See id. at 370-71 (2) (citing Hanna v. First Citizens Bank & Trust Co., 323 Ga. App. 321, 328-29 (4) (744 SE2d 894) (2013); Capital City Developers v. Bank of North Ga., 316 Ga. App. 624, 626-28 (1) (730 SE2d 99) (2012)).

The screen shot attached to Terway’s affidavit — the only document offered in support of Terway’s statements about the money due under the loan — provides information about money owed at the time it was printed, but not any sort of detailed transaction history, such as payments made on the loan. Thus, it falls under the category of a summary, not a business record. See Roberts, 331 Ga. App. at 370-71 (2); Hanna, 323 Ga. App. at 328-29 (4); Capital City Developers, 316 Ga. App. at 626-28 (1).

The question for this Court, then, is whether the screen shot meets the requirements for admission as a summary. Under OCGA § 24-10-1006,

[t]he contents of otherwise admissible voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that the contents of such writings, recordings, or photographs be produced in court.

See also Roberts, 331 Ga. App. at 370 (2) (citing United States v. Bray, 139 F.3d 1104, 1109-10 (6th Cir. 1998) (listing requirements for federal rule on admission of summaries)). A trial court’s decision to admit a document as a summary is reviewed for abuse of discretion. See Lyman v. Cellchem Int’l, 335 Ga. App. 266, 276 (3) (b) (779 SE2d 474) (2015).

Arguably, the requirement that the underlying records supporting that summary were “made available for examination or copying, or both, by other parties at a reasonable time and place” has been met. As acknowledged by D’Agnese, neither party conducted any discovery in this case. D’Agnese cannot complain that documents were not available to him if he never asked for them. See A.S. Wikstrom, Inc. v. Norair Eng’g Corp., 156 Ga. App. 49, 50-51 (2) (274 SE2d 28) (1980) (no error in admission of summary of damages given opportunity for discovery); but see Hanna, 323 Ga. App. at 328-29 (4) (trial court abused its discretion in considering a screen capture listing current amounts owed and last payment on a bank loan in the determination of the amounts awarded to bank, because the underlying records related to fees and interest were not available to the court or the guarantor). However, Wells Fargo offered no evidence — and has made no argument — that the underlying records are too voluminous to be examined in court conveniently, a clear requirement under the text of the rule. OCGA § 24-10-1006 (“The contents of otherwise admissible voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation”). This is a necessary precondition for admission of a document as a summary. The trial court thus abused its discretion in considering the screen shot as evidence of the bank’s damages. Therefore, we affirm judgment as to liability but reverse the award of damages and remand for further proceedings consistent with this opinion.

Decided February 10, 2016.

James R. Marshall, for appellant.

Smith, Gambrell & Russell, Marcia M. Ernst, John R. Autry, for appellee.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and Boggs, J., concur.

       The judgment comprised $331,817.59 in principal, $94,200.86 in pre-judgment interest, and $42,626.85 in attorney fees.

       Because Wells Fargo filed its motion for summary judgment on January 10, 2014, Georgia’s new Evidence Code applies. See Ga. L. 2011, p. 99, § 101 (new Evidence Code shall apply to any motion made on or after effective date of January 1, 2013).

       Although the admissibility of summaries is now codified at OCGA § 24-10-1006, Georgia courts applied a similar rule before adoption of the new Evidence Code. Roberts, 331 Ga. App. at 370 (2), n.4.

       It is unclear precisely how the trial court treated the document in question here. His order simply notes DAgnese’s argument regarding lack of proof of damages and says the argument is without merit, the cases cited by D’Agnese are distinguishable, and there is no genuine dispute of material fact.

       “Although, based on the current record, the amount of damages is insufficiently certain, our holding in this regard does not mean that [Wells Fargo’s] damages . . . would never be susceptible to summary adjudication.” Ware v. Multibank 2009-1 RES-ADC Venture, 327 Ga. App. 245, 251 (2) (758 SE2d 145) (2014).


author: MERCIER, Judge..

text:
    A15A2025.
    SENTINEL INSURANCE COMPANY/THE HARTFORD v. USAA INSURANCE COMPANY.
    (782 SE2d 718)
   MERCIER, Judge..

We granted an application for interlocutory appeal in this case to review the trial court’s determination of priority of underinsured motorist (“UM”) coverage between the parties, and to address the priority of UM coverage in the context of limited liability companies. We conclude that the “more closely identified with” test shows that the trial court incorrectly determined the priority of UM coverage. We therefore reverse.

The facts relevant to our analysis are undisputed. The underlying case is a personal injury action for damages arising from an automobile collision. Plaintiff Kathleen Thomas (“Thomas”) alleged that defendant Clarence Carlton negligently rear-ended her vehicle in September 2012. Thomas sought UM coverage from the two insurance companies who are parties to this appeal, and served them as defendants. Both insurance companies filed answers to Thomas’s complaint. One of the insurers, USAA Insurance Company (“USAA”), filed a motion to determine the priority of UM coverage.

Sentinel Insurance Company/The Hartford (“Sentinel”) issued a commercial automobile liability policy to named insured JK Lakeside, LLC (“JK Lakeside”). JK Lakeside is a Georgia limited liability company registered with Georgia’s Secretary of State’s office. JK Lakeside was the company under which Thomas operated the liquor store “Katie’s Liquor, Beer and Fine Wine.” The vehicle Thomas was driving at the time of the collision was owned by JK Lakeside, and was insured by Sentinel for UM coverage listing JK Lakeside as the only named insured. The premiums for the Sentinel policy were paid to Sentinel through JK Lakeside because Thomas was using the vehicle as a work vehicle. Thomas was also covered under a personal automobile liability policy issued by USAA to her spouse. The USAA policy did not cover JK Lakeside or the vehicle operated by Thomas at the time of the collision.

In Georgia, “stacking” policies of underinsured or uninsured motorist coverage is permitted, “but the priority of the multiple UM carriers must be determined.” Canal Ins. Co. v. Merchant, 225 Ga. App. 61, 62 (483 SE2d 311) (1997); Great Divide Ins. Co. v. Safeco Ins. Co., 260 Ga.App. 531, 532 (580 SE2d 313) (2003). Georgia courts have utilized two tests in making this determination: the “receipt of premium” test and the “more closely identified with” test. Canal Ins. Co., supra; Great Divide Ins. Co., supra. Because it is undisputed that Thomas did not pay a premium for either policy, the “receipt of premium test” is inapplicable to this case. See Southern Guar. Ins. Co. v. Premier Ins. Co., 219 Ga. App. 413, 414 (465 SE2d 521) (1995). Therefore, we must turn to the “more closely identified with” test to determine which policy provides primary coverage. Applying that test, we must examine Thomas’s relationship to the policies of insurance, to determine the policy with which she is more closely identified, and thus which policy provides primary coverage. See Canal Ins. Co., supra.

Two of our previous opinions addressing the priority of UM coverage between an employer policy and a family policy are particularly relevant to our analysis here. In Travelers Indem. Co. v. Maryland Cas. Co., 190 Ga. App. 455 (379 SE2d 183) (1989), the plaintiff was injured in the course of her employment while driving a vehicle owned by her employer, a corporation. She was insured by both her employer’s insurance policy and her mother’s household family policy. Id. The trial court held that the plaintiff was more closely identified with her corporate employer’s policy because she was driving a vehicle owned and insured by her employer and she was injured while acting in the course of her employment. Id. at 456. We reversed, holding that the controlling consideration was “the relationship of the injured plaintiff to the policy rather than the circumstances of the injury to the policy.” Id. at 457. In Travelers Indem. Co., we concluded that the plaintiff was more closely identified with her mother’s UM policy than with her employer’s policy, because she was insured as a family member. Id.

However, in Southern Guar. Ins. Co., 219 Ga. App. 413, a case that also dealt with priority of UM coverage between a business policy and a family policy, we held that the plaintiff was more closely identified with the business policy. In Southern Guar. Ins. Co., the plaintiff, who was the sole proprietor of a dance school, was injured while driving her personal vehicle; the vehicle was covered under only the business’s policy, and the plaintiff was an insured driver under her husband’s policy. Id. at 413. Even though the plaintiff in Southern Guar. Ins. Co. was a named insured on her husband’s policy, we distinguished the case from Travelers Indem. Co. because the business in Southern Guar. Ins. Co. that held the policy was a sole proprietorship (owned and operated by the plaintiff) as opposed to a corporation. Id. at 414. We held that obligations or benefits incurred by the dance school were individual in nature, and they were in fact the obligations or benefits of the plaintiff individually. Id. at 415. Consequently, the dance school “simply was not a distinct entity capable of being the true named insured on the contract.” Id. Thus, with respect to the plaintiff we held, “[i]t defies logic to hold that she shared a closer relationship with her husband than with herself.” Id.

In the instant case, the trial court found that Thomas was more closely identified with the Sentinel policy than with the USAA policy. In making this determination the trial court relied on Southern Guar. Ins. Co. because Thomas owned and operated the liquor store, co-owned JK Lakeside, and was a title holder on the vehicle involved in the collision. Sentinel argues the trial court erred in applying Southern Guar. Ins. Co. and should have relied instead on Travelers Indem. Co. because a limited liability company is more like a corporation than a sole proprietorship.

USAA argues that JK Lakeside is more like the sole proprietorship in Southern Guar. Ins. Co. because Thomas shares a closer relationship with the LLC than with her husband. USAA points to the facts that Thomas co-owned a “closely held business,” and the vehicle involved in the collision was titled in both her name and the name of JK Lakeside. Furthermore, the liquor store Thomas operated was named “Katie’s Liquor, Beer and Fine Wine,” and thus she was more closely identified with the business policy than with her husband’s policy.

Alternatively, Sentinel argues that the trial court ignored the corporate form of JK Lakeside and that because JK Lakeside is a separate entity from Thomas, Thomas is more closely identified with her husband’s policy. We hold that because a limited liability company is a separate legal entity from its owners, Thomas is more closely identified with her family policy.

This Court has not previously addressed the priority of UM coverage in the context of a limited liability company. A limited liability company is a business entity that (with some exceptions not pertinent here) protects its members from personal liability, debts, or obligations of the company. See OCGA § 14-11-303 (a). Consequently, we have held:

Just as the so-called corporate veil protects an individual shareholder of a corporation from personal liability for the debts of the separate corporate entity (so long as the corporate forms are maintained) so is a member of a limited liability company (LLC) veiled from personal liability for the debts of the separately maintained LLC entity.

Bonner v. Brunson, 262 Ga. App. 521 (585 SE2d 917) (2003) (citations and punctuation omitted).

Limited liability companies are separate legal entities from their members. Bonner, 262 Ga. App. at 521. Thus, unlike the sole proprietorship in Southern Guar. Ins. Co., JK Lakeside was a distinct legal entity capable of being the true named insured on a contract. Accordingly, just as in Travelers Indem. Co., Thomas was more closely identified with her family policy than with the business policy. Because Thomas was more closely identified with her family’s UM coverage (provided by USAA) than with the business policy (provided by Sentinel), USAA rather than Sentinel was the primary UM carrier. The trial court erred by determining otherwise.

Judgment reversed.

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

Decided February 10, 2016.

Law Offices of Thomas O. Sippel, H. Clifton Cobb, for appellant.

Fain, Major & Brennan, Richard W. Brown, Jessica E. Sanford, for appellee.