author: Dillard, Judge.

text:
    A14A0986.
    WILLIAMS v. THE STATE.
    (763 SE2d 261)
   Dillard, Judge.

Following a jury trial, Anthony Williams was convicted of one count of burglary. Williams appeals his conviction, arguing that the trial court erred in excluding evidence of a witness’s prior conviction and in denying his claim that the prosecutor engaged in misconduct by failing to comply with discovery requirements. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that on the morning of April 4, 2012, Ledale Curry left his home to help a friend run a few errands. Curry returned home less than an hour later, and upon entering his front door, he heard footsteps inside—which he found disconcerting because his family members were usually not at home that time of the day. A few seconds later, Curry saw a young male—subsequently identified as Williams-— walking down the hallway. For a moment, Williams and Curry stared at each other, allowing Curry to get a good look at Williams’s face. And although Curry did not know Williams’s name, he recognized him as someone he had seen in the neighborhood. Williams then quickly fled out the back door of Curry’s home. Curry briefly gave chase, but stopped when Williams and another young male, whom he had not seen inside his home, escaped over the fence in his backyard.

In the aftermath of this unsettling encounter, Curry noticed his television unplugged and laying on the sofa, as well as a laptop computer and iPad on the ground just outside the back door, indicating that the burglars dropped these items as they fled the premises. He then called the police to report the burglary, but the perpetrators were not apprehended at that time. However, later that same afternoon, Curry saw Williams and another young male, ultimately identified as Devan Williams, walking through the neighborhood. And recognizing Anthony Williams as one of the burglars, Curry immediately called the police again. This time, the responding officers were able to arrest both suspects.

Both Anthony Williams and Devan Williams were charged, via indictment, with one count of burglary. And during the trial, Curry testified about coming home and interrupting the burglary in progress and reiterated that Anthony Williams was the young man he saw inside his house. In addition to presenting Curry’s testimony, the State called the responding detective to testify regarding his investigation of the matter, and at the trial’s conclusion, the jury found Anthony Williams guilty of burglary. This appeal follows.

1. Williams contends that the trial court erred in excluding evidence of the victim’s (i.e., Curry’s) prior conviction for possession of cocaine. We do not agree that this exclusion constituted reversible error.

As a general rule, admission of evidence is a matter “resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” Furthermore, the constitutionally improper denial of a defendant’s opportunity to impeach a witness, “like other Confrontation Clause errors, is subject to a harmless-error analysis.” And to determine whether a constitutional error is harmless, we must consider whether the error was harmless beyond a reasonable doubt. With these guiding principles in mind, we turn now to Williams’s claims of error.

In this matter, during his cross-examination of Curry, Williams’s counsel inquired about a statement Curry gave to the police. And although the inquiry made no mention of a prior criminal record, Curry responded: ‘You know, I’m the type of fellow, you know, I done been in some trouble too. I’ve got a record. I’ve been to prison and all that, and I’ve got a brother that has done did murder charges and all that.” Almost immediately after this statement was made, a bench conference ensued, during which the State’s prosecutor noted that Curry was convicted for possession of cocaine approximately nine years prior to this trial. Williams’s counsel then sought admission of that conviction into evidence, but the prosecutor argued that such evidence should be excluded as irrelevant. Ultimately, the trial court found that the prejudicial effect of Curry’s conviction outweighed its probative value and, therefore, excluded it.

Williams argues that the trial court failed to correctly analyze the admissibility of Curry’s prior conviction under the new evidence code and, thus, erred in excluding it. In that regard, OCGA § 24-6-609 (a) (1) provides, in relevant part, that:

For the purpose of attacking the character for truthfulness of a witness ... [ejvidence that a witness other than an accused has been convicted of a crime shall be admitted subject to the provisions of Code Section 24-4-403 if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted . . . .

And pursuant to subsection (b) of that statute, “[e]vidence of a conviction under this Code section shall not be admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for such conviction, whichever is the later date . . . .”

Here, it was undisputed that Curry’s conviction for possession of cocaine was less than ten years old and constituted a crime punishable by imprisonment in excess of one year. Thus, pursuant to OCGA § 24-6-609 (a) (1), as noted supra, the admissibility of that conviction hinged upon the application of OCGA § 24-4-403, which tracks Federal Rule of Evidence 403, and provides: “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”*

Prior to the enactment of the new evidence code, Georgia had no direct statutory equivalent to Rule 403, but case law on the issue generally required that a trial court merely balance the probative value of evidence with its prejudicial effect without requiring that the objecting party establish substantial prejudice. In stark contrast, the plain meaning of OCGA § 24-4-403’s text makes clear that the trial court may only exclude relevant evidence when its probative value is “substantially outweighed” by one of the designated concerns. Indeed, the Eleventh Circuit has described Rule 403 as “an extraordinary remedy which the ... court[s] should invoke sparingly, and the balance should be struck in favor of admissibility.” Obviously, the reason for such caution is that relevant evidence in a criminal trial is “inherently prejudicial,” and, as a result, Rule 403 “permits exclusion only when unfair prejudice substantially outweighs probative value.” The primary function of Rule 403, then, is to exclude evidence of “scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.”

As previously noted, in reviewing an evidentiary ruling, this Court must determine whether that ruling constituted an abuse of the trial court’s discretion. A proper application of the abuse-of-discretion review recognizes “the range of possible conclusions the trial judge may reach,” and that there will often be occasions in which we will affirm the evidentiary ruling of a trial court “even though we would have gone the other way had it been our call.” That said, while the abuse-of-discretion standard presupposes a “range of possible conclusions” that can be reached by a trial court with regard to a particular evidentiary issue, it does not permit a “clear error of judgment” or the application of “the wrong legal standard.” And here, the trial court merely found that the probative value of Curry’s prior conviction for possession of cocaine was outweighed by its prejudicial effect and did not require the State to show that such prejudice substantially outweighed any probative value. In doing so, the trial court failed to analyze the issue under OCGA § 24-4-403, and, consequently, it erred. Nevertheless, it is a fundamental principle that “harm as well as error must be shown for reversal,” and we conclude that Williams was not harmed by the trial court’s evidentiary ruling.

As noted supra, even before the bench conference (during which the admissibility of Curry’s prior conviction was discussed), Curry testified that he had prior troubles with the law, that he had a criminal record, and that he spent time in prison. Thus, evidence of Curry’s criminal history-—albeit unspecific—was presented to the jury. In fact, Curry’s own testimony arguably damaged his credibility far more than Williams would have done by being limited to merely introducing the record of Curry’s prior conviction for possession of cocaine. Consequently, at most, the admission of Curry’s prior conviction would have been cumulative of his own damaging testimony. Accordingly, the trial court’s error in failing to correctly apply OCGA § 24-4-403 in determining the admissibility of Curry’s prior felony conviction was harmless.

2. Williams further contends that the trial court erred in denying his claim that the State’s prosecutor engaged in misconduct by failing to comply with discovery requirements. We disagree.

It is well established that a charge of prosecutorial misconduct is “a serious charge and is not to be lightly made; having raised it, [defendant] has the duty to prove it by the record and by legal authority.” Additionally, when a defendant alleges a factually specific claim of prosecutorial misconduct, the defendant must show actual misconduct and demonstrable prejudice to his right to a fair trial in order to reverse his conviction.

Here, during Williams’s trial, the investigating detective testified that a palm print was recovered from Curry’s home after the burglary but that its quality was poor and, therefore, no comparison could be made when the print was analyzed via the Automated Fingerprint Identification System. Williams’s counsel did not object to this testimony and, in fact, cross-examined the detective regarding this issue. Nevertheless, immediately after the State rested, Williams’s counsel complained that the State failed to provide him with the palm-print information and actually notified him that the print taken from the scene had been lost. The State’s prosecutor replied that a follow-up e-mail sent to the public defender’s office explained that the palm-print card was located but that no comparison could be made. However, Williams’s counsel responded that because he was conflict counsel, he was not privy to e-mails sent to the public defender’s office. Following this colloquy, the trial court found it unnecessary to rule on this issue in light of the fact that the palm print did not incriminate Williams.

Decided August 26, 2014.

Chambless, Higdon, Richardson, Katz & Griggs, Larry Fouché, for appellant.

K. David Cooke, Jr., District Attorney, Dorothy V. Hull, Brian R. Granger, Assistant District Attorneys, for appellee.

On appeal, Williams now argues that the prosecutor’s failure to inform his counsel about the palm print constituted prosecutorial misconduct and warrants reversal of his conviction. However, regardless of whether the prosecutor’s failure in this instance constitutes merely a miscommunication or instead arguably amounts to “misconduct,” the fact remains that the palm print did not incriminate Williams. And given these circumstances, Williams has failed to show that he was harmed by this lack of disclosure. Accordingly, this issue presents no ground for reversing Williams’s conviction.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

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

        See OCGA § 16-7-1 (b) (“A person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant dwelling house of another or any building, vehicle, railroad car, watercraft, aircraft, or other such structure designed for use as the dwelling of another.”).

       Curry conceded during his testimony that he was not certain as to whether Devan Williams was the other young man who he saw escaping over his back fence. Consequently, the State nolle prossed the charge as to him.

        Martinez v. State, 306 Ga. App. 512, 525 (6) (702 SE2d 747) (2010) (punctuation omitted).

        Id. (punctuation omitted).

        See Hawkins v. State, 316 Ga. App. 415, 418 (2) (a) (729 SE2d 549) (2012) (“The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless heyond a reasonable doubt.” (punctuation omitted)).

       Williams was tried on July 16 and 17, 2013, and therefore Georgia’s new evidence code was applicable. See Ga. Laws 2011, p. 99, § 101.

        See OCGA § 24-6-609 (a) (1).

        See OCGA § 24-6-609 (b).

        See OCGA § 16-13-30 (c) (1).

       OCGA § 24-4-403.

        See Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 46 (2d ed. 2014); see also Waye v. State, 326 Ga. App. 202, 205 (3) n.2 (756 SE2d 287) (2014) (holding that court only had to determine whether the probative value of witness’s prior conviction outweighed its prejudicial effect, not whether it substantially outweighed that effect); Smith v. State, 319 Ga. App. 164, 167-68 (2) (735 SE2d 153) (2012) (holding that standard for admissibility of witness’s prior conviction is whether probative value merely outweighs its prejudicial effect).

        See OCGA § 24-4-403.

       Given the similarity between Georgia’s new evidence code and the Federal Rules of Evidence “it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts.” Jones v. State, 326 Ga. App. 658, 660 (1) (757 SE2d 261) (2014) (punctuation omitted).

        United States v. Lopez, 649 F3d 1222, 1247 (VII) (11th Cir. 2011) (punctuation omitted); accord Flading v. State, 327 Ga. App. 346, 351-352 (759 SE2d 67) (2014).

        United States v. Merrill, 513 F3d 1293, 1301 (II) (B) (11th Cir. 2008) (citation and punctuation omitted); accord United States v. Betancourt, 734 F2d 750, 757 (IV) (11th Cir. 1984); Flading, 327 Ga. App. at 352.

        United States v. Utter, 97 F3d 509, 515 (II) (B) (2) (11th Cir. 1996) (citation and punctuation omitted); accord United States v. McRae, 593 F2d 700, 707 (5th Cir. 1979); Flading, 327 Ga. App. at 352.

        See Sifuentes v. State, 293 Ga. 441, 445 (3) (746 SE2d 127) (2013); Hinton v. State, 280 Ga. 811, 816 (6) (631 SE2d 365) (2006).

        United States v. Frazier, 387 F3d 1244, 1259 (II) (11th Cir. 2004) (punctuation omitted).

        Id.

        O’Neal v. State, 288 Ga. 219, 223 (2) (702 SE2d 288) (2010) (punctuation omitted).

       As the State notes in its brief, “Mr. Curry’s testimony could easily have led the jury to believe that he had a much more serious criminal past than would have been shown by one conviction for simple possession of drugs.”

        See Martinez v. State, 284 Ga. 138, 140 (3) (663 SE2d 675) (2008) (noting that “a defendant may not attempt to impeach the character or veracity of a witness by specific instances of prior misconduct unless the misconduct has resulted in the conviction of a crime involving moral turpitude” (punctuation omitted)); Kimbrough v. State, 254 Ga. 504, 505 (2) (330 SE2d 875) (1985) (“To impeach a witness hy a prior conviction the conviction must be proved by the record of conviction itself, not by cross-examination.” (punctuation omitted)).

        See Hoffler v. State, 292 Ga. 537, 539-40 (2) (739 SE2d 362) (2013) (holding that trial court’s error in admitting defense witness’s prior conviction, which was more than ten years old, was harmless given the fact that witness later made an unsolicited reference to his criminal history); Fields v. State, 285 Ga. App. 345, 346-47 (3) (646 SE2d 326) (2007) (holding that trial court’s error in barring cross-examination of a witness about pending charges for purpose of exploring bias was harmless when witness’s credibility was put in doubt by another witness).

        Brooks v. State, 285 Ga. 246, 251 (5) (674 SE2d 871) (2009) (punctuation omitted).

        See McGarvey v. State, 186 Ga. App. 562, 564 (2) (368 SE2d 127) (1988) (holding that misconduct would not demand the extreme remedy of dismissal of the charge unless it caused demonstrable prejudice to the defendant’s constitutional or statutory rights or deprived him of a fair trial); see also Smith v. Phillips, 455 U. S. 209, 219 (III) (102 SCt 940, 71 LE2d 78) (1982) (noting that “the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor”).

       It is worth noting that the collection of prints from the crime scene was mentioned in the police report, which was turned over to the defendant by the State during discovery.

        See Kitchens v. State, 289 Ga. 242, 245-46 (3) (710 SE2d 551) (2011) (holding that based on “the absence of any evidence of specific harm or prejudice to the defendant, the trial court did not err when it denied appellant’s motion for new trial on the basis of prosecutorial misconduct”); McGarvey, 186 Ga. App. at 564 (2) (holding that even if prosecutor engaged in misconduct, defendant was not actually prejudiced and, thus, dismissing charges was not required).


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A14A1000.
    BOARDMAN v. BRENNINKMEIJER.
    (763 SE2d 267)
   Boggs, Judge.

Ana Brenninkmeijer filed a civil action against Richard Board-man asserting that he breached a co-tenancy agreement. Boardman appealed to this Court from the trial court’s grant of summary judgment in favor of Brenninkmeijer on her breach of contract claim. He has now filed a “Notice of Bankruptcy Stay” asserting that because he has filed a Chapter 7 bankruptcy petition, “this appeal is stayed by the provisions of 11 U.S.C. § 362.” But the appellate courts of this state are constitutionally required to dispose of every case at the term of court for which it is entered on the court’s dockets for hearing or at the next term of court. See Ga. Const, of 1983, Art. VI, Sec. IX, Par. II. Accordingly, this Court does not have the power to stay a case. We therefore remand this case to the trial court until the stay of proceedings is lifted. See Boat Ramp Road Partners v. First State Bank, Inc., 314 Ga. App. 452, 453, n. 1 (724 SE2d 464) (2012); see also Piggly Wiggly Southern v. Kelley, 1998 Ga. LEXIS 631 (Case No. S98G0860, decided June 2, 1998 by order); Olde Towne Tyrone v. Multibank 2009-1 CRE Venture, 326 Ga. App. 322, 325, n. 2 (756 SE2d 558) (2014).

At that time, Boardman may re-institute the appeal by filing a new Notice of Appeal in the trial court within 30 days of the date of the entry of the order in the bankruptcy court lifting the stay.

To the extent Accredited Assoc., Inc. v. Shottenfeld, 162 Ga. App. 575, 578 (2) (292 SE2d 417) (1982), and McDuffie v. Hoobler, 203 Ga. App. 325, 327 (1) (416 SE2d 853) (1992), hold that this court is not “barred from proceeding to a final resolution,” id., where the appeal is brought by the party who later files bankruptcy, i.e., the debtor, they are hereby overruled. The automatic stay provisions of the Federal Bankruptcy Act, 11 USC § 362, provide “a very broad stay of actions where an individual debtor files a bankruptcy case.” O'Dell v. Mahoney, 324 Ga. App. 360, 368 (5) (750 SE2d 689) (2013). Section 362 (a) (1) stays

the commencement or continuation... of a judicial... action or proceeding against the debtor that was or could have been commenced before [the bankruptcy case was filed], or to recover a claim against the debtor that arose before the commencement of the [bankruptcy case].

“During the pendency of the bankruptcy stay, state courts lack the ability to exercise judicial power or discretion or otherwise proceed with the case.” (Citations omitted.) Jinks v. Eastman Enterprises, 317 Ga. App. 489, 491 (731 SE2d 378) (2012), overruled in part on other grounds, O'Dell, supra, 324 Ga. App. at 369 (5).

In Accredited Assoc., supra, the defendant appealed from the trial court’s denial of its motion for relief from default judgment. Id. at 575. During the pendency of the appeal, the defendant/appellant filed a notice of bankruptcy. Id. at 578 (2). This court held that a stay pursuant to 11 USC § 362 (a) did not apply, and that this court could reach the merits of the appeal, because the appeal was brought by the appellant debtor. We concluded that “there is no legal impediment to bar an action brought by the debtor from proceeding in state court.” But this holding relied upon In re Ideal Roofing & Sheet Metal Works, 9 BR 2 (S.D. Fla. 1980), a bankruptcy case in which the debtor requested that the stay be lifted in order to allow it to proceed as the plaintiff in one state court action and as the defendant in another state court action. Id. at 3. The bankruptcy court issued an order modifying the automatic stay as requested by the debtor finding no legal impediment to bar an action brought by the debtor. Id. This holding is consistent with 11 USC § 362 and federal precedent. See Crosby v. Monroe County, 394 F3d 1328, 1331 (II) (11th Cir. 2004) (automatic stay provisions of Bankruptcy Code do not extend to lawsuits initiated by the debtor); Martin-Trigona v. Champion Fed. S & L, 892 F2d 575, 577 (7th Cir. 1989) (same). “The automatic stay is an injunction issuing from the authority of the bankruptcy court, and bankruptcy court orders are not subject to collateral attack in other courts.” (Citation omitted.) Gruntz v. County of Los Angeles, 202 F3d 1074, 1082 (9th Cir. 2009). It is the bankruptcy court that entertains motions to terminate, annul, or modify the automatic stay, see 11 USC § 362 (d), (e) and (f), and any state court attempt to do so would constitute “an unauthorized infringement upon the bankruptcy court’s jurisdiction to enforce the stay.” Id. at 1082.

This court, in Accredited Assoc., supra, incorrectly cited the holding in Ideal Roofing as standing for the proposition that a state court appeal brought by the party who later files bankruptcy is not subject to an automatic stay. This conclusion is contrary to the plain language of 11 USC § 362 (a) and would result in the stay being applied where the party who later files bankruptcy is the prevailing party below, and not applied where the party who later files bankruptcy is the losing party below.

Whether the party who files bankruptcy during the pendency of an appeal, i.e., the debtor, is the appellant or the appellee should be irrelevant for the purpose of applying the automatic stay. The applicability of the stay is determined by whether the commencement or continuation of a judicial action or proceeding is against the debtor, or to recover a claim against the debtor that arose before the commencement of the bankruptcy case. This would include the continuation by appeal of the action in this case brought by Brenninkmeijer against Boardman, who became the debtor after filing bankruptcy during the pendency of the appeal.

We therefore overrule Accredited Assoc., supra, and McDuffie, supra, to the extent they hold that the automatic stay provisions of 11 USC § 362 do not apply, and that this court is permitted to reach the merits of an appeal where the appellant has filed a notice of bankruptcy during the pendency of the appeal.

Case remanded.

Phipps, C. J., Andrews, P. J., Barnes, P. J., Ellington, P. J., Doyle, P. J., and Miller, Dillard, McFadden, Ray, Branch and McMillian, JJ., concur.

Decided August 26, 2014.

Carol V Clark, for appellant.

Parks, Chesin & Walbert, Larry H. Chesin, Ragsdale, Beals, Seigler, Patterson & Gray, W. Russell Patterson, Jr., Brian J. Morrissey, for appellee.


text:
    A14A1180.
    SMITH v. THE STATE.
    (763 SE2d 269)
   Boggs, Judge.

Aaron Elisha Smith entered a negotiated guilty plea to the charge of statutory rape and was sentenced under the First Offender Act, OCGA § 42-8-60, to ten years of probation with the condition that he serve 60-120 days in a detention center. When Smith was told by his probation officer that he was required to register as a sex offender, he filed a “Motion to Enforce Sentence” requesting a “specific order” that he was not required to register. Following a hearing, the trial court denied Smith’s motion, and he now appeals. In his sole enumeration of error on appeal, Smith asserts the trial court erred by denying this motion. We affirm.

OCGA § 42-1-12 (e) lists eight categories of individuals who “shall be required” to register as a sex offender. Two of those categories include an individual who “(1) [i]s convicted on or after July 1, 1996, of a criminal offense against a victim who is a minor,” and an individual who “(2) [i]s convicted on or after July 1, 1996, of a dangerous sexual offense.” OCGA § 42-1-12 (a) (9) (B) provides that a “[c]riminal offense against a victim who is a minor . . . means any criminal offense under Title 16 . . . which consists of,” among other enumerated conduct, “(iii) [c]riminal sexual conduct toward a minor.” And OCGA § 42-1-12 (a) (10) (B) provides that “[d]angerous sexual offense ... means any criminal offense, or the attempt to commit any criminal offense, under Title 16 as specified in this paragraph . . . which consists of the same or similar elements of,” among other offenses, “(vii) Statutory rape in violation of Code Section 16-6-3, if the individual convicted of the offense is 21 years of age or older.”

Smith argues that the specific definition in OCGA § 42-1-12 (a) (10) (B) (dangerous sexual offense) “overrules” the alleged general definition provided in OCGA § 42-1-12 (a) (9) (B) (criminal offense against a victim who is a minor), and that because he was age 20 at the time of the offense, OCGA § 42-1-12 (a) (10) (B) (vii) does not apply, and he therefore is not required to register as a sex offender. OCGA § 42-1-12 (a) (10) (B) (vii) provides only that registration is required for a statutory rape conviction for an individual 21 or older. So Smith’s argument here is that what is implied by this subsection (registration is not required if the individual is under the age of 21) is specific, and prevails over what he deems is the general provision of OCGA § 42-1-12 (a) (9) (B) (iii). But each of these provisions is specific in describing the categories of persons who are required to register either for having committed a specific crime or having engaged in certain conduct.

While Smith signed a “Statement of Defendant Desiring to Enter Negotiated Plea” which provided that he would not be required to register as a sex offender as a special condition of probation, and no such special condition was ordered by the trial court, the regulatory requirements of OCGA § 42-1-12 are independent of any term or condition of probation that could be imposed by the trial court. Compare OCGA § 42-8-35 (b) with OCGA § 42-1-12 (e). Therefore, his motion to enforce the terms and conditions of his sentence is ineffectual to address the regulatory mechanism requiring him to register as a sex offender.

OCGA § 42-1-12 (a) (10) (B) (vii) does not apply here to require Smith to register as a sex offender because he was not “21 years of age or older” when he committed the statutory rape, and therefore did not commit a “dangerous sexual offense” as defined by that subsection. But this does not foreclose the requirement that he register for having committed a “criminal offense against a victim who is a minor” consisting of “criminal sexual conduct toward a minor” pursuant to OCGA § 42-1-12 (a) (9) (B) (iii). Smith pled guilty to the statutory rape of a 15-year-old girl, which “falls within the category of criminal sexual conduct toward a minor.” State v. Stulb, 296 Ga. App. 510, 511, n. 2 (675 SE2d 253) (2009). Had the legislature intended for OCGA § 42-1-12 (a) (9) (B) (iii) to apply only to those age 21 and over, as it did in OCGA § 42-1-12 (a) (10) (B) (vii), itcouldhave specifically provided so. See State v. Sterling, 244 Ga. App. 328, 330 (2) (535 SE2d 329) (2000). For example, the legislature has specifically provided that a misdemeanor shall not be considered a “criminal offense against a victim who is a minor.” OCGA § 42-1-12 (a) (9) (C). This exclusion from the registration requirement would include a conviction for misdemeanor statutory rape pursuant to OCGA § 16-6-3 (c).

Smith argues further that the rule of lenity should apply to resolve ambiguity that would result in varying degrees of punishment. But that principle does not apply here. The rule of lenity “comes into play only to resolve ambiguities that remain after applying all other tools of statutory construction.” (Citation and punctuation omitted.) State v. Nankervis, 295 Ga. 406, 409 (2) (761 SE2d 1) (2014). There is no ambiguity in the language of OCGA § 42-1-12 describing the categories of individuals that must register as a sex offender. See, e.g., Youmans v. State, 291 Ga. 754, 756 (2) (732 SE2d 441) (2012) (holding that “as OCGA § 42-1-12 (e) (4) and its related provisions provide fair warning as to who is required to register after having been convicted of a sexually violent offense, it does not authorize and encourage arbitrary and discriminatory enforcement”); Wiggins v. State, 288 Ga. 169, 173 (6) (702 SE2d 865) (2010) (OCGA § 42-1-12 (a) (9) (B) (xi) not unconstitutionally vague). Moreover, OCGA § 42-1-12 is not a criminal statute that prescribes punishment. While “registrants face extensive restrictions on where they can live, work, and volunteer,” Taylor v. State, 304 Ga. App. 878, 884 (1) (698 SE2d 384) (2010), the registry requirements “are regulatory, and not punitive, in nature.” Rainer v. State of Ga., 286 Ga. 675, 676 (1) (690 SE2d 827) (2010). See Rogers v. State, 297 Ga. App. 655, 657 (678 SE2d 125) (2009) (“ ‘[T]he designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes.’ [Cits.]”).

And, although Smith pled guilty and was sentenced as a first offender, OCGA § 42-1-12 (a) (8) provides that a conviction, for purposes of the sex offender registry, includes a plea of guilty and those sentenced as first offenders:

“Conviction” includes a final judgment of conviction entered upon a verdict or finding of guilty of a crime, a plea of guilty, or a plea of nolo contendere. A defendant who is discharged without adjudication of guilt and who is not considered to have a criminal conviction pursuant to Article 3 of Chapter 8 of this title, relating to first offenders, shall be subject to the registration requirements of this Code section for the period of time prior to the defendant’s discharge after completion of his or her sentence or upon the defendant being adjudicated guilty. Unless otherwise required by federal law, a defendant who is discharged without adjudication of guilt and who is not considered to have a criminal conviction pursuant to Article 3 of Chapter 8 of this title, relating to first offenders, shall not be subject to the registration requirements of this Code section upon the defendant’s discharge.

Decided August 26, 2014.

Gerald P. Privin, for appellant.

James L. Wright III, District Attorney, Jordan K. Van Matre, Assistant District Attorney, for appellee.

As Smith has not yet been discharged for the completion of his sentence, he is required to register as a sex offender pursuant to OCGA § 42-1-12 (a) (9) (B) (iii) for having committed a “crime against a victim who is a minor.” The trial court therefore did not err in denying his “Motion to Enforce Sentence.”

Judgment affirmed.

Branch, J., concurs. Barnes, P. J., concurs in judgment only.

       Smith did not seek to withdraw his guilty plea based upon any misunderstanding about his obligation to register as a sex offender. See Taylor v. State, 304 Ga. App. 878, 884 (1) (698 SE2d 384) (2010). During the hearing on Smith’s plea, the State asserted that “all parties agree the legislative intent was for anyone who was 21 years old at the time of offense was really what should control there, and so all parties agree that Mr. Smith is not a sex offender and is not required to be registered under the law.”

       Interestingly, Smith does not argue that OCGA § 42-1-12 (a) (10) (B) (vii) prevails over OCGA § 42-1-12 (a) (10) (B) (xix), listed within the same subsection, which provides that a “dangerous sexual offense” also includes “[a]ny conduct which, by its nature, is a sexual offense against a victim who is a minor or an attempt to commit a sexual offense against a victim who is a minor.”

       We note that we have held the trial court has the authority to order sex offender registration “as a condition of probation even though such registration is not required by the registration statute.” Loya v. State, 321 Ga. App. 430, 432-434 (2) (a) (740 SE2d 382) (2013).


text:
    A14A1465.
    CHESTER v. THE STATE.
    (763 SE2d 272)
   Boggs, Judge.

Michael Rashad Chester was indicted by a DeKalb County grand jury on charges of kidnapping, false imprisonment, attempt to commit a felony, aggravated sodomy, aggravated sexual battery, sexual battery, aggravated assault, false imprisonment, and burglary, committed against four victims. A jury found him guilty on all eighteen counts of the indictment, and he was sentenced to two consecutive life terms plus fifteen years. His amended motion for new trial was denied, and he appeals, asserting seven enumerations of error. For the reasons stated below, we affirm but vacate the judgment of conviction and remand as to counts that should have been merged for sentencing.

1. Chester raises insufficiency of the evidence with respect to his conviction for sexual battery against one of the victims. He contends that the State failed to prove the necessary element of lack of consent, because the victim did not verbally object to his initial advances or physically prevent him from fondling her. The victim admitted that she did not say anything when Chester began touching her, but stated that she did not do so because she was “nervous and scared.” At the time he committed the offense in question, Chester had offered the victim a ride to the store but instead had driven her in the wrong direction, to a vacant house. After he touched her, she attempted to get out of the car, and he dragged her back by her hair. He displayed a gun and ordered her to unbutton her pants; she jumped from the moving car and was injured, but escaped.

Lack of consent may be proved by means other than an unambiguous verbal statement to the accused. Here, the State presented evidence of lack of consent, including the victim’s nervousness and fear after Chester did not drive her to the promised destination. “[I]t is well settled that lack of resistance, induced by fear, is not legally cognizable consent.” (Citation and punctuation omitted.) Littleton v. State, 225 Ga. App. 900, 901 (1) (485 SE2d 230) (1997). And whether a victim consented is a matter “solely within the province of the jury.” Id.; see also Roberts v. State, 242 Ga. App. 621, 623 (1) (a) (530 SE2d 535) (2000). Chester’s argument

merely raise [s] issues of fact as to whether the victim can reasonably be deemed to have consented to the act. The defendant is not required to “read the victim’s mind” or understand her internal thought processes; he is only required not to impose sex upon her without her free consent. Whether he did so is a question of intent, which the jury determines according to the reasonableness of her testimony as to lack of consent, not the reasonableness of her fear.

(Emphasis in original.) Clark v. State, 197 Ga. App. 318, 321 (3) (398 SE2d 377) (1990), aff’d, 261 Ga. 311 (404 SE2d 787) (1991). Construed in favor of the jury’s verdict, this evidence was sufficient to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Chester contends the trial court erred in denying his motion for mistrial after alleged jury misconduct. After the first day of trial, defense counsel announced that an assistant public defender who was not involved in the case reported that she had overheard several jurors “discussing the case” and that at least one person said “that they thought he, in fact, was guilty.” The following morning, Chester moved for a mistrial and the trial court summoned all the jurors for voir dire examination. The trial court questioned each juror individually regarding the allegations; counsel asked questions of the jurors as well.

All jurors but one agreed that nothing was said about the case. One juror who testified that she was “a little scattered” due to having a wakeful baby at home, first testified that she did not “recall any of us saying we thought that he was guilty or not guilty, no.” She added, “We kind of talked about something but I don’t think it was really evidence per se.” Under further questioning by counsel, she did not remember “making any remarks about yesterday’s events . . . but it doesn’t mean I couldn’t have honestly.” Counsel then continued:

Q. But what you do remember is that there was some discussion about something that happened yesterday during our course of putting this case up? Somebody discussed something?
A. I think so, yes, but I couldn’t tell you words or anything like that.
Q. So you don’t know if what was said was good, bad or indifferent about yesterday’s events.
A. If anything, it was indifferent; it wasn’t good or bad.
Q. But there was a discussion?
A. I’m sorry. I wish I — so vague here. I’m very sorry about that.
Q. Okay.

Defense counsel then called the assistant public defender who originally brought the conversation to his attention. She testified that as she was entering the courthouse through the security line, she saw “a big group” of people wearing red juror badges; she was not watching them, but she overheard a woman’s voice in this group. Asked what she heard, she responded, “I could have misheard but what I remember hearing is ‘I think he probably did it.’ ” She did not hear anything else and did not know what particular subject the person was discussing.

After hearing argument from counsel, the trial court denied the motion for mistrial, observing that other jurors might be wearing red badges, that he considered the strong presumption that witnesses were telling the truth, that he had found these jurors to be conscientious and responsible, and that no evidence had been presented that the remark pertained to the trial rather than some other matter. The court rejected the defense’s suggestion that all 15 jurors and alternates who did not recall any discussion of the case had conspired to lie to the court. Later in the day, Chester’s counsel pointed out that Chester’s trial was the only one in progress and thus the jurors must have been assigned to his trial, but the trial court again denied the motion for mistrial, stating that the important point was that the alleged statement had been given no context and that, contrary to the defense’s original contention, the witness was not able to confirm that there was any discussion about the case.

“The presence of juror misconduct is a question of fact for the trial judge, and barring an abuse of discretion, will not be disturbed on appeal. [Cit.]” Robinson v. State, 281 Ga. App. 76, 80 (5) (635 SE2d 380) (2006). Here, the trial court conducted a thorough and searching inquiry, questioning not only the jurors but the witness who overheard the remark. It concluded that no evidence had been presented of a prejudicial statement by a juror, and it did not abuse its discretion in so doing. While Chester argues that prejudice must be presumed, we do not reach that stage of inquiry because the trial court found no misconduct to support a presumption, and that finding was within its broad discretion. This enumeration of error is without merit.

3. Chester contends the trial court erred in refusing to consider evidence in mitigation at sentencing. But the trial court did not refuse to consider evidence; rather, it declined to grant defense counsel’s request for a delay in sentencing on the basis that counsel had “some information I would like one of our social workers to gather from Mr. Chester. Obviously there’s [a] lot at stake here in terms of the time that he is subject to, and I think that having the time to prepare some evidence in mitigation is important to this case.” The trial court responded:

I’m going to deny it. I don’t think there’s anything in mitigation he could offer me that would change my mind about the sentence today. I have given this a great deal of thought. We have had many opportunities for Mr. Chester to consider something less than this day. Much of this is statutory anyway. I just can’t imagine that there’s any reason he’s ... entitled by law to a presentence investigation. I’m going to deny your motion. I’m going to go ahead. You can — I’ll take a verbal offer but his position was this was sex for hire and it didn’t work out that way.

The State and the defense then presented argument on sentencing. Defense counsel referred to previous hearings at which the trial court had heard information and recited various general contentions in mitigation such as Chester’s being “very involved” with the life of his daughter, that his mother was present throughout his trial, that he was taking GED classes, and that he was employed. The trial court then sentenced Chester to a term less than that requested by the State but greater than that requested by Chester.

Chester contends that the trial court’s refusal to grant a continuance so that counsel could gather evidence in mitigation amounted to “a complete refusal to consider the variety of factors that must go into a sentence determination,” a refusal to exercise discretion, and “an abdication of responsibility similar to sentencing based on a rigid policy.” The State, on the other hand, argues that the trial court did hold a presentencing hearing as required by OCGA § 17-10-2, that both a continuance and the preparation of a presentence report are within the trial court’s discretion, and that the trial court did not abuse its discretion in denying a continuance to obtain a presentence report.

But we need not consider whether the trial court’s actions amounted to error, because Chester must also demonstrate harm. At the hearing on his motion for new trial, over two years after the ruling complained of, Chester argued this issue. But he did not present or even identify any evidence — by proffer, by affidavit, or by live witness — which he would have offered in mitigation at sentencing.

To be entitled to a new trial based upon the denial of a motion for a continuance, an appellant has the burden of showing that he was harmed by that denial. [Chester] has made no proffer of evidence that he could have introduced had a continuance been granted, nor has he otherwise shown that a continuance would have benefitted him. Accordingly, [he] has not carried his burden of showing harmful error.

(Citations and punctuation omitted.) Murray v. State, 328 Ga. App. 192, 195 (3) (761 SE2d 590) (2014). Chester has failed to show that he was harmed by the trial court’s failure to grant a continuance, and this enumeration of error is therefore without merit.

4. Chester contends the trial court erred in its response to a question from the jury. The trial court charged the jury, deliberations began, the jury asked one question, which was answered by the court, and then after further deliberation the jury was sent home for the weekend. On Monday, the jury deliberated until the afternoon and then sent out a written note with two questions for the court: “Is the belief in the defendant’s guilt or innocence of the charge of ‘attempt to commit the crime of rape’ necessary to convict or acquit the defendant of Count Number 5 = Attempt to commit a felony?” and “If we do not necessarily believe that the defendant was attempting to commit the crime of rape, is it our duty to find him innocent of attempt to commit a felony?” The trial court conferred with counsel and concluded that “this invades — for me to respond invades the province of the jury.” The court informed the defendant, “I’ve conferred with the lawyers and we all agree this is not a question I can provide legal guidance to the jury about.... What I can do is refer them back to the charges as I have before, okay?” The court then instructed the jury that it would “refer you back to the charges that I’ve already written down and provided each of you with a copy.” The jury returned to its deliberations and reached a verdict of guilty on that charge.

The trial court read to the jury the text of the indictment, which also went out with the jury. The court instructed the jurors on the presumption of innocence and reasonable doubt and the elements of attempt to commit rape. It also specifically instructed the jury as to the form of the verdict with respect to Count 5 and each element of the offense charged, as well as reiterating the jury’s duty to find the defendant not guilty if it had any reasonable doubt as to his guilt.

As a general rule, the need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court. When the jury requests more instructions upon a particular phase of the case, the trial court is under a duty to instruct them in a plain, clear manner so as to enlighten rather than confuse them. The court may respond to a jury’s question by repeating charges which are legally sufficient and not misleading.

(Citations and punctuation omitted.) McElroy v. State, 244 Ga. App. 500, 501-502 (1) (a) (536 SE2d 188) (2000).

The trial court correctly concluded that it had provided all the applicable legal principles for the jury, and counsel was not ineffective in failing to object. “It is well settled that the failure to make a meritless objection cannot be evidence of ineffective assistance.” (Citation and footnote omitted.) Scott v. State, 254 Ga. App. 728, 731 (4) (a) (563 SE2d 554) (2002).

Decided August 28, 2014.

Kevin A. Anderson, for appellant.

Robert D. James, Jr., District Attorney, Gerald Mason, Assistant District Attorney, for appellee.

5. Chester also claims the trial court erred in sentencing by failing to merge the counts of false imprisonment of two victims into the related kidnapping counts. The State, commendably, concedes that merger is proper as the same facts were used to prove each offense and, according to the State, the counts originally were indicted in the alternative. See Massey v. State, 265 Ga. 632, 633 (1) (458 SE2d 818) (1995), overruled on other grounds, Lewis v. McDougal, 276 Ga. 861, 862, n. 1 (583 SE2d 859) (2003); compare Hosley v. State, 322 Ga. App. 425, 428-429 (3) (746 SE2d 133) (2013) (offenses did not merge when separate in time and proven with different facts). Those convictions and the sentences entered for them therefore must be vacated and the case remanded to the trial court for resentencing.

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

Barnes, P. J., and Branch, J., concur.

       Count 5 of the indictment charged Chester
      with the offense of ATTEMPT TO COMMIT A FELONY for the said accused person . . . did attempt to commit the crime of Rape, in violation of Code Section 16-6-1 of the Official Code of Georgia, in that the said accused did knowingly and intentionally point a handgun at [the victim]... and demand that she unbutton her pants, acts which constitute a substantial step toward the commission of said crime.

       The trial court instructed the jury:
      If after considering the testimony and evidence presented to you together with the charge of the Court you should find and believe beyond a reasonable doubt that the defendant... did... commit the offense of attempt tocommita felony by attempting to commit the crime of rape ... as alleged in the indictment, you would be authorized to find the defendant guilty. In that event the form of your verdict would be we, the jury, find the defendant guilty. If you do not believe that the defendant is guilty of attempt to commit a felony or if you have any reasonable doubt as to the defendant’s guilt, then it would be your duty to acquit the defendant.


author: ELLINGTON, Presiding Judge.

text:
    A14A1114.
    CLAYTON COUNTY BOARD OF EDUCATION v. VOLLMER.
    (763 SE2d 277)
   ELLINGTON, Presiding Judge.

The Clayton County Board of Education (hereinafter, the “Local Board”) appeals from an order by the Superior Court of Clayton County reversing a decision by the State Board of Education (the “State Board”). The State Board had affirmed the Local Board’s termination of a teacher, David Vollmer. The Local Board contends that the superior court erred in reversing Vollmer’s termination based upon an issue that he raised for the first time in the superior court, specifically, that the tribunal that conducted the initial termination hearing had failed to timely comply with its statutory reporting requirements. The Local Board argues that Vollmer waived the issue by failing to raise it in the prior proceedings. The Local Board also contends that, to the extent the superior court found as a matter of law that there was insufficient evidence in the record to support the termination of Vollmer’s employment, this conclusion is erroneous. For the following reasons, we find that Vollmer waived the issue of whether the hearing tribunal timely complied with the applicable statutory requirements. Further, the hearing evidence supported the Local Board’s termination decision. Consequently, we reverse the superior court’s order.

Viewed in the light most favorable to the Local Board’s decision, the record shows the following, undisputed facts. In January 2012, Clayton County’s superintendent of schools recommended that the Local Board terminate Vollmer’s employment as a teacher, pursuant to the Georgia Fair Dismissal Act, OCGA § 20-2-940 et seq. A tribunal appointed by the Local Board (the “hearing tribunal”) heard evidence on the recommendation and, on May 22, 2012, issued its findings of fact and recommended that the Local Board terminate Vollmer’s employment. In a June 5, 2012 e-mail to Vollmer’s counsel, the Local Board notified Vollmer that it had “upheld the [termination] decision of the Tribunal at its Monthly Board Meeting last night.”

Vollmer appealed the Local Board’s decision to the State Board, raising seven separate “Issues on Appeal,” including whether the Local Board had “acted in compliance with its mandate in OCGA § 20-2-940 (f)” because “[n]owhere in the unofficial minutes [of the Local Board’s June 4,2012 meeting], the only minutes available, does it appear that any action respecting [Vollmer] was taken [by the Local Board],” and because he had “received no notice that any action was taken [by the Local Board] as required by law[.]” The State Board responded to the notice of appeal with a letter stating that it would “not consider any question not specifically raised in the written appeal.”

In his subsequent appellate brief to the State Board, Vollmer abandoned all but the following two issues: whether there was sufficient evidence to support his termination, and whether the Local Board had failed “to act on the Decision of the Hearing Tribunal in a timely manner.” As to the latter issue, Vollmer contended that there was no proof that the Local Board had taken any official action on the hearing tribunal’s recommendation and that neither he nor his counsel had “ever received any required notice from the Board that [he] had the right to appeal the decision of the [Local] Board.”

The State Board affirmed the Local Board’s termination decision after finding that there was sufficient evidence to support Vollmer’s termination; it did not address Vollmer’s contention regarding the Local Board’s alleged failure to provide him with timely notice of its decision or his right to an appeal.

Vollmer then appealed the State Board’s decision to the Superior Court of Clayton County, contending, inter alia, that the hearing tribunal had failed to comply with a statutory mandate that it provide its findings of fact and recommendations to the Local Board within five days of the conclusion of the termination hearing. Although the Local Board argued that Vollmer had waived this issue by failing to raise it in the proceedings below, the superior court rejected that argument, finding as a matter of fact that Vollmer had raised the issue in his appeal to the State Board. The superior court then concluded that the hearing tribunal had, in fact, violated the five-day reporting requirement under OCGA§ 20-2-940 (f), and, based solely upon that finding, it reversed the Local Board’s termination of Vollmer’s employment.

1. The Local Board contends that the superior court erred in considering and ruling upon this issue because Vollmer had waived it by failing to raise it in the proceedings below. Pretermitting whether the superior court erred in finding that the hearing tribunal had violated the reporting requirement of OCGA § 20-2-940 (f), or that such violation mandated the reversal of Vollmer’s termination, the record shows that the court clearly erred in finding that Vollmer had preserved the issue for its consideration. As shown above, in Vollmer’s appeal to the State Board, he specifically identified the issues he wanted the State Board to consider. That pleading and his supporting brief indisputably show that he did not ask the State Board to decide whether the hearing tribunal had issued its findings and recommendations within the required five-day period and, if the tribunal did not, whether that failure mandated the reversal of the Local Board’s decision to terminate his employment.

Because Vollmer failed to raise the issue prior to his appeal to the superior court, the court was prohibited from considering the issue; it was also prohibited from reviewing the decision of the State Board de novo. OCGA § 20-2-1160 (e) (“Neither the state board nor the superior court shall consider any question in matters before the local board nor consider the matter de novo, and the review by the state board or the superior court shall be confined to the record.”); Sharpley v. Hall County Bd. of Ed., 251 Ga. 54, 54-55 (1) (303 SE2d 9) (1983) (The appellant failed to challenge the constitutionality of a statute in proceedings before the county or state boards of education. Consequently, the superior court was not authorized to consider the issue, and the Supreme Court refused to consider its merits on appeal.); Fulton County Bd. of Ed. v. D. R. H, 325 Ga. App. 53, 57-58 (1) (752 SE2d 103) (2013) (This Court ruled that, in an appeal from a Local Board’s decision, the superior court erred in considering a matter de novo and in failing to confine its appellate review to the record and to the issues that had been raised before the Local Board, in violation of OCGA § 20-2-1160 (e).).

Consequently, the superior court erred in reversing the State Board’s decision affirming the Local Board’s termination of Vollmer’s employment on this basis.

2. Although the superior court did not expressly rule on Vollmer’s claim that there was insufficient evidence presented at the tribunal hearing to support the termination of his employment, we have reviewed the evidence presented in the light most favorable to the Local Board’s decision and conclude that, under the “any evidence” standard of review, the evidence supports the Local Board’s termination decision. See Chattooga County Bd. of Ed. v. Searels, 302 Ga. App. 731, 732 (691 SE2d 629) (2010) (“Not unlike the State Board and the superior court, this Court as an appellate body applies the ‘any evidence’ standard of review to the record supporting the initial decision of the Local Board.”) (citations omitted); Ransum v. Chattooga County Bd. of Ed., 144 Ga. App. 783, 785 (5) (242 SE2d 374) (1978) (“Historically, the appellate courts of this State have followed the policy of refusing to nullify facts supported by evidence which have been found by the various fact-finding bodies.”) (citation and punctuation omitted). Accordingly, the superior court was not authorized to reverse Vollmer’s termination on this basis.

Decided August 29, 2014.

Fincher Denmark Williams & Minnifield, Winston A. Denmark, Emilia C. Walker, for appellant.

Warren C. Fortson, for appellee.

Judgment reversed.

Phipps, C. J., and McMillian, J., concur.

       This Court granted the Local Board’s application for discretionary review, Case No. A14D0141.

        Chattooga County Bd. of Ed. v. Searels, 302 Ga. App. 731, 732 (691 SE2d 629) (2010).

       See OCGA § 20-2-940 (e) (1) (“The [termination] hearing shall he conducted before the local board, or the local board may designate a tribunal to consist of not less than three nor more than five impartial persons possessing academic expertise to conduct the hearing and submit its findings and recommendations to the local board for its decision thereon.”).

         See OCGA § 20-2-1160 (b) (“Any party aggrieved by a decision of the local board rendered on a contested issue after a hearing shall have the right to appeal therefrom to the State Board of Education. The appeal shall be in writing and shall distinctly set forth the question in dispute, the decision of the local board, and a concise statement of the reasons why the decision is complained of[.]”).

       See OCGA § 20-2-1160 (c) (“Any party aggrieved [by a decision of the State Board in a termination appeal] may appeal to the superior court of the county wherein the local board of education is situated. Such appeal shall be filed in writing within 30 days after the decision of the state board.”).

       See OCGA § 20-2-940 (f) (“Where the [termination] hearing is before a tribunal, the tribunal shall file its findings and recommendations with the local board within five days of the conclusion of the hearing, and the local board shall render its decision thereon within ten days after the receipt of the transcript.”).

       In fact, in his 32-page brief to the State Board, Vollmer’s only reference to the timing of the hearing tribunal’s actions is as follows:
      On May 22,2012, the Hearing Tribunal rendered its Findings of Fact, Analysis and Conclusions, supporting its decision on May 20, 2012 to uphold the decision of the Superintendent. This decision was in due course filed with the [Local] Board. . . . On June 5, 2012, [the Local Board sent Vollmer’s attorney an e-mail that stated:] “The Board upheld the decision of the Tribunal at its Monthly Board Meeting last night.”


author: Miller, Judge.

text:
    A14A1315.
    WILLIAMS v. THE STATE.
    (763 SE2d 280)
   Miller, Judge.

Following a jury trial, Minnie Denise Williams was convicted of misdemeanor theft by conversion of property with a value less than $500 (OCGA § 16-8-4 (a)). Williams appeals from the denial of her motion for new trial, contending that (1) the evidence was insufficient; (2) the trial court erred in charging the jury on the appropriate measure of damages; and (3) the trial court erred in determining the amount of restitution. Discerning no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that, in early December 2011, Williams went to the Rent & Buy Furniture store located in Marietta in Cobb County. Williams executed a month-to-month rental purchase agreement for a new Haier 30-inch flat-screen television set that was valued at $649.87. Several days later, Williams returned to Rent & Buy and executed a second month-to-month rental purchase agreement for a used Sharp 32-inch television that was also valued at $649.87. The rental agreements required Williams to either make monthly rental payments or return the televisions to Rent & Buy.

Williams received both televisions at her residence on 1651 Massachusetts Avenue in Marietta, and the agreement prohibited Williams from moving the televisions to another address without written permission from Rent & Buy. Nevertheless, at some point, Williams moved to another location and took the two rented televisions with her. Williams never requested permission to move the televisions from the Massachusetts Avenue address, and Rent & Buy never received notice from Williams that she had moved to another location.

Williams made a total of $292.15 in payments on the first television and $281.45 in payments on the second television. The payments included the rental amount, plus taxes and fees. Williams made no payments after March 14, 2012, and she never returned the televisions to Rent & Buy, despite Rent & Buy’s efforts to locate her.

1. Williams contends that the evidence was insufficient to support her conviction. We disagree.

OCGA § 16-8-4 (a) pertinently provides:

A person commits the offense of theft by conversion when, having lawfully obtained . . . property of another including, but not limited to, leased or rented personal property, under an agreement or other known legal obligation to make a specified application of such funds or a specified disposition of such property, he knowingly converts the funds or property to his own use in violation of the agreement or legal obligation. . . .

See also Sherrod v. State, 280 Ga. 275 (627 SE2d 36) (2006) (holding that it is a crime to knowingly convert another’s property in violation of an agreement).

At the time of the alleged crime in this case, the crime of theft by conversion of property valued at $500 or less was punishable as a misdemeanor. See OCGA§ 16-8-12 (a) (1) (2011).

The value of stolen property can be established by one having knowledge of the age and condition of the subject property and some knowledge, experience, or familiarity of the fair market value of such property. . . . [T]he State may prove fair market value by producing a witness, including the victim of the theft, who is familiar with the stolen items and has a fact-supported opinion as to their value.

(Citations and punctuation omitted.) In the Interest of R. H., 316 Ga. App. 317, 318 (728 SE2d 911) (2012).

Here, the State presented sufficient evidence for the jury to find that Williams converted the televisions to her own use in direct violation of her rental agreements. Notably, the rental agreements required Williams to either make monthly payments to continue renting the televisions or return the televisions to Rent & Buy, and the evidence showed that Williams failed to do either after March 14, 2012. The evidence also showed that Williams moved the televisions to another address, without Rent & Buy’s knowledge or consent, in direct violation of the rental agreements. Finally, the State presented testimony from the victim — the owner of Rent & Buy — that each television had a retail or fair market value of $649.87.

Williams argues that the owner’s testimony regarding the fair market value of the televisions was insufficient to prove fair market value as defined by OCGA § 16-8-4 (c) (3) (A). Her argument is unavailing, however, because value is not an element of theft by conversion. OCGA§ 16-8-4 (a). Williams’s conviction does not depend on the value of the stolen property, which is relevant only for purposes of distinguishing between a misdemeanor and a felony. See OCGA § 16-8-12 (a); Hight v. State, 221 Ga. App. 574, 575 (2) (472 SE2d 113) (1996). Here, the owner’s testimony that the televisions had some value authorized the jury to find Williams guilty, beyond a reasonable doubt, of misdemeanor theft by conversion. See Hight, supra, 221 Ga. App. at 575 (2).

2. Williams contends that the trial court erred in charging the jury on the appropriate measure of damages. We discern no error.

As an initial matter, the record shows that Williams did not object to the trial court’s charge. Where no objection is made to a jury charge at trial, “appellate review for plain error is required whenever an appealing party properly asserts an error in jury instructions.” (Footnote omitted.) State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011).

The “plain error” test adopted by this Court in [Kelly] authorizes reversal of a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.

(Citations omitted.) Smith v. State, 292 Ga. 316, 319 (3) (737 SE2d 677) (2013).

With regard to the jury’s determination of the appropriate amount of damages, the trial court gave the following charge:

When value is an element of an offense, the value that must be proved by the State is fair-market value of the property at the time of the taking. Fair-market value is defined as the price agreed upon by the seller who is willing but not compelled to sell, and a buyer who is willing but not compelled to buy.

Williams argues that the correct formula for determining fair market value is set forth in OCGA § 16-8-4 (c) (3) (A). Her argument is unavailing, because OCGA § 16-8-4 (c) (3) (A) sets out the formula for determining replacement costs of converted personal property, not the formula for determining market value for purposes of the $500 felony threshold. See OCGA § 16-8-12 (a). Moreover, as set forth in Division 1 above, the owner’s testimony authorized Williams’s conviction for misdemeanor theft by conversion. Accordingly, Williams cannot show that the trial court plainly erred in giving the charge. See Smith, supra, 292 Ga. at 319 (3).

3. Williams contends that the trial court erred in calculating the amount of restitution. We do not agree.

In determining the amount of restitution, the ordering authority shall consider, inter alia, the amount of damages. Damages, in this context, means all special damages which a victim could recover against an offender in a civil action based on the same act or acts for which the offender is sentenced, except punitive damages and damages for pain and suffering, mental anguish, or loss of consortium. The amount of restitution ordered shall not exceed the victim’s damages. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the [S]tate. The sufficiency of evidence to support an order of restitution is measured by the civil standard of preponderance of the evidence. It is well established that review of evidence by this Court is limited to questions of sufficiency. Accordingly, determinations regarding the credibility of the witnesses and the weight to be accorded conflicting evidence are for the trial court, and this Court will not interfere with such determinations as long as there is any evidence to support them.

(Punctuation and footnotes omitted.) Austin v. State, 315 Ga. App. 713, 713-714 (727 SE2d 535) (2012).

With regard to restitution, OCGA § 16-8-4 (c) (3) pertinently provides:

In the event that any personal property is not returned as provided for in the lease or rental agreement and the court orders the lessor or renter to pay replacement costs, replacement costs shall include but not be limited to: (A) The market value of the personal property. The market value shall be established by the owner of the property by providing from a supplier of such or reasonably similar personal property a current quotation of the value of the personal property which is of like quality, make, and model of the personal property being replaced. . . . (B) All rental charges from the date the rental agreement was executed until the date of the trial or the date that the property was recovered, if recovered; and (C) Interest on the unpaid balance each month at the current legal rate from the date the court orders the lessor or renter to pay replacement costs until the date the judgment is satisfied in full.

(Emphasis supplied.)

Here, the trial court heard evidence regarding the value of the televisions during Williams’s sentencing hearing. The State presented the testimony of the owner of Rent & Buy, who stated that he was owed $2,198.07, based on the difference between the payments Williams made on the two televisions and the amount that she would have paid over the course of 24 months under the two rental agreements. The owner further stated that the figure of $2,198.07 included late fees, as well as postage, filing and trip fees. The trial court subsequently ordered Williams to pay $2,198.07 in restitution.

The evidence was sufficient to support the trial court’s determination of the amount of restitution awarded. Notably, the evidence showed that the rental agreements required Williams to either make monthly payments on the televisions or return the televisions to Rent & Buy; the rental agreements provided for a total $2,797.90 in monthly payments on the televisions; Williams made only $573.60 in payments; and Williams never returned the televisions. Pursuant to OCGA § 16-8-4 (c) (3) (B), the trial court could have awarded as much as $2,224.30 — the difference between the total monthly payments under the rental agreements and the amount Williams paid — plus interest on the unpaid balance. Accordingly, the trial court did not err in awarding only $2,198.07 in restitution.

Decided August 29, 2014.

S. Lee Storesund, for appellant.

D. Victor Reynolds, District Attorney, Amelia G. Pray, Shepard R. Orlow, Assistant District Attorneys, for appellee.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

       Williams was charged by accusation with felony theft by conversion of property with a value greater than $500 (OCGA§ 16-8-4 (a)).

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

       The trial court initially ordered Williams to pay $3,100 in restitution. In its order denying Williams’s motion for new trial, however, the trial court reduced the restitution award to $2,198.07.


text:
    A14A1474.
    WARNELL et al. v. UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY.
    (763 SE2d 284)
   Miller, Judge.

William and Belinda Warnell appeal from the grant of summary judgment to the Unified Government of Athens-Clarke County (the “County”) in their suit arising from a collision between William’s vehicle and a police car owned by the County. The Warnells contend that the trial court erred in granting summary judgment based on their failure to present their claims to the County within 12 months as required by OCGA § 36-11-1. Discerning no error, we affirm.

On appeal from the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law. Holbrook v. Stansell, 254 Ga. App. 553, 553-554 (562 SE2d 731) (2002).

So viewed, the evidence shows that on February 28, 2011, William was driving his vehicle near the intersection of Lumpkin and Washington Streets in Athens, Georgia. Athens-Clarke County Police Officer Jody Thompson was traveling west on Washington Street in his County-owned patrol car when he proceeded through a red light and collided with William’s vehicle. The County had an insurance policy on the patrol car which provided $1 million in automobile liability coverage.

On January 15, 2013, more than 22 months after the accident, the Warnells filed suit against the County, alleging that William had been injured in the accident. Prior to filing their suit, the Warnells admittedly failed to provide any formal written notice of their claims to the County. The County moved for summary judgment, arguing that the Warnells’ claims against the County were barred by their failure to comply with the 12-month statute of limitation for presentation of claims set forth in OCGA § 36-11-1. In their response to the County’s motion for summary judgment, the Warnells argued that the County’s limited waiver of sovereign immunity under OCGA § 33-24-51, based on the County’s purchase of liability insurance, barred the County from raising the 12-month notice requirement under OCGA § 36-11-1 as a defense. The trial court granted the County’s motion, finding that the 12-month presentation requirement set forth in OCGA § 36-11-1 is wholly unrelated to the limited waiver of sovereign immunity under OCGA § 33-24-51, whichresulted from the County’s purchase of liability insurance on the patrol car.

In their sole enumeration of error, the Warnells contend that the trial court erred in granting summary judgment to the County, because the express language of OCGA § 33-24-51 (b) limits the County’s defenses to only those defenses available to private persons. We disagree.

Under OCGA § 36-11-1,
[ajll claims against counties must be presented within 12 months after they accrue or become payable or the same are barred, provided that minors or other persons laboring under disabilities shall be allowed 12 months after the removal of the disability to present their claims.

(Emphasis supplied.) “Failure to present the County with formal written notice of the claim within the 12-month statutory period, or to present the claim to the County by suing and serving the County on the claim within that period, acts as a bar to the claim.” (Citations omitted.) Coweta County v. Cooper, 318 Ga. App. 41, 41-42 (733 SE2d 348) (2012). Under OCGA § 36-11-1, a cause of action against a county does not exist unless the claim has been presented within 12 months after its accrual. See Atlantic Coast Line R. Co. v. Mitchell County, 36 Ga. App. 47, 48 (135 SE 223) (1926) (holding that suit was barred for failure to present notice to county within 12 months under Civil Code 1910 § 411, OCGA § 36-11-1’s virtually identical predecessor). The Warnells have the burden of proving substantial compliance with the statute. Coweta County, supra, 318 Ga. App. at 42.

Here, the record shows that the Warnells failed to present notice of their claim to the County within the 12-month statutory period. Notably, the Warnells admittedly failed to present the county with formal written notice before they filed their suit, and they did not file their suit against the County until more than 22 months after the accident. Accordingly, the Warnells’ suit against the County is barred, and the trial court properly granted the County’s motion for summary judgment. See Coweta County, supra, 318 Ga. App. at 44 (holding that trial court erred in refusing to grant summary judgment to county where plaintiff failed to comply with OCGA § 36-11-1).

Nevertheless, the Warnells argue that, pursuant to OCGA § 33-24-51, the County’s purchase of liability insurance prohibits the County from raising the Warnells’ failure to comply with the 12-month notice requirement as a defense to their suit. To interpret OCGA § 33-24-51-as the Warnells urge would require this Court to disregard the mandatory language of that statute. This we cannot do.

The Warnells also argue that the two-year statute of limitation for personal injuries under OCGA § 9-3-33 applies to their claims in lieu of OCGA § 36-11-1. Regardless of the applicable statute of limitation, a cause of action against a county that is not presented to the county within 12 months after its accrual is barred. Coweta County, supra, 318 Ga. App. at 41-42.

Finally, the Warnells argue that the trial court’s interpretation of OCGA § 33-24-51 (b) rendered some of the statute’s language superfluous. OCGA § 33-24-51 (b) pertinently provides that a county’s sovereign immunity is waived for losses arising out of claims for the negligent use of a covered motor vehicle to the extent of the amount of insurance purchased, and that the County “may make only those defenses which could be made if the insured were a private person.”

Here, the trial court found that OCGA § 33-24-51 (b) is expressly limited to defenses relating to sovereign immunity. Contrary to the Warnells’ argument, the limited waiver of sovereign immunity set forth in OCGA § 33-24-51 (b) does not implicate the 12-month presentation requirement under OCGA § 36-11-1. Because the Warnells failed to present their claim to the County within 12 months after its accrual, and they did not file their suit within that time period, their claim is barred. Accordingly, we find no error in the trial court’s grant of summary judgment to the County.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

Decided August 29, 2014.

Blasingame, Burch, Garrard & Ashley, Andrew J. Hill III, Lee S. Atkinson, for appellants.

Begnaud & Marshall, Andrew H. Marshall, for appellee.

       The Warnells also raised claims against Thompson in their complaint. Approximately six months later, however, the Warnells dismissed their claims against Thompson without prejudice.


author: McFADDEN, Judge.

text:
    A14A0863.
    FRASER v. THE STATE.
    (763 SE2d 359)
   McFADDEN, Judge.

After a jury trial, Raoul Fraser was convicted of simple battery/ family violence. He appeals, claiming that the trial court erred in admitting testimony concerning prior difficulties. However, Fraser did not object to the testimony and has not shown plain error. Accordingly, we affirm.

Construed in favor of the verdict, evidence presented at trial showed that on January 10, 2013, Fraser assaulted his former live-in girlfriend. He cursed at her, pushed her, grabbed her throat, shoved her to the ground, got on top of her, and choked her. When a neighbor arrived at the scene, Fraser fled.

A police officer who was dispatched to the scene testified that while questioning the victim, she said that on a prior occasion she and Fraser had gotten into an argument and Fraser had attempted to kill her. Although Fraser had raised an earlier hearsay objection to other testimony, he did not object to this testimony by the officer about the prior incident.

“Georgia ‘has long followed the contemporaneous objection rule, which provides that counsel must make a proper objection on the record at the earliest possible time to preserve for review the point of error.’ [Cit.]” Stacey v. State, 292 Ga. 838, 843 (4) (741 SE2d 881) (2013). As noted above, Fraser did not make a contemporaneous objection to the prior incident testimony by the officer. Nevertheless, because the trial in this case occurred after January 1, 2013, we may review the purportedly improper testimony for plain error. See Rembert v. State, 324 Ga. App. 146, 152 (2), n. 8 (749 SE2d 744) (2013) (“Georgia’s new Evidence Code, which applies to cases tried after January 1, 2013, allows a court to consider ‘plain errors affecting substantial rights although such errors were not brought to the attention of the court.’ OCGA § 24-1-103 (d).”).

Decided September 3, 2014.

King, King & Jones, David H. Jones, for appellant.

Tasha M. Mosley, Solicitor-General, Steven K. Snider, Adrienne D. Nash, Assistant Solicitors-General, for appellee.

“A finding of plain error requires a clear or obvious legal error or defect not affirmatively waived by the appellant that must have affected the appellant’s substantial rights, i.e., it affected the outcome of the trial-court proceedings.” (Citation and punctuation omitted.) Taylor v. State, 327 Ga. App. 882, 890 (8) (761 SE2d 426) (2014). Here, even assuming, without deciding, that the officer’s testimony about the prior incident was improper, such error did not affect Fraser’s substantial rights since the victim also testified, without objection, about the prior incident and having told the officer about it. Thus, the officer’s “testimony on this point was [merely] cumulative and its admission did not in reasonable probability affect the outcome of the trial.” Johnson v. State, 295 Ga. 421, 426 (3) (761 SE2d 13) (2014). Because Fraser did not object to the testimony and there was no plain error in its admission, we affirm.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


text:
    A14A1437.
    GORDON v. THE STATE.
    (763 SE2d 357)
   McFADDEN, Judge.

Quantavious Gordon appeals his armed robbery convictions, arguing that the evidence was insufficient. He also argues that when ruling on the motion for new trial, the trial court erred by failing to consider whether the verdict was decidedly and strongly against the weight of the evidence as provided under OCGA § 5-5-21. We find that the evidence was sufficient to support the convictions. But because it is not clear that the trial court exercised his discretion under OCGA § 5-5-21 when ruling on Gordon’s motion for new trial, we vacate the trial court’s denial of Gordon’s motion for new trial and remand for the trial court’s further consideration of the motion.

1. Sufficiency of the evidence.

When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citations and punctuation omitted).

Viewed in this light, the evidence showed that on June 22, 2010, sometime between 6:30 and 7:00 p.m., Gordon walked into Jessica’s Stop and Go and asked store manager Robert Elliot for cigarettes. Elliot said he had none, at which point Gordon pulled out a gun and told Elliot to “give it up.” Several other young men then entered the store, some masked, although Gordon was not.

Elliot was sitting on a chair behind the counter, his cashier Cynthia Riggins was on a stool near him, and his friend Michael Mosley was seated in a corner when the robbers entered the store. Gordon jumped over the counter, put a gun to Elliot’s head, ordered him to lie down, and demanded to know where Elliot’s own gun was. When Elliot told him he did not have it on him, Gordon rolled Elliot over and took his wallet, cell phone, and a wad of cash out of another pocket. He also took cigars, cigarettes, and other merchandise from the store.

Meanwhile, another robber also jumped the counter, put a gun to Riggins’ head, and made her open the cash register. He took everything out of it, and then took Riggins’ cell phone and cash. When a robber noticed Mosley in the corner, he put a gun to Mosley’s head and took $125 from him. The robbers ran out of the store, shouting for no one to move.

All three witnesses independently identified Gordon as one of the robbers from police photo lineups, administered at separate times several days after the robbery. He was unmasked, the store was well-lit, and all three were able to see Gordon clearly. Mosley and Elliot had never seen him before, but Riggins recognized him, as she is Gordon’s girlfriend’s aunt, and had met him once previously. Additionally, Kwamesia Works, an acquaintance of Gordon who has known him for several years, testified that she saw him and about five other young men standing outside of Jessica’s Stop and Go at about 6:45 p.m. on the night of the robbery.

A person commits armed robbery “when, with intent to commit theft, he . . . takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . .” OCGA § 16-8-41 (a). The evidence detailed above authorized the jury to find that Gordon committed armed robbery.

Nevertheless, Gordon argues that his convictions must be reversed because the state failed to disprove his alibi. He points to his trial testimony where he claimed a friend took him to pick up pizza while the robbery was in progress, as well as that friend’s trial testimony, corroborating his story. However, “it was for the jury to determine the credibility of the witnesses, and the jury was authorized to disbelieve the alibi defense [Gordon] proffered.” Newsome v. State, 288 Ga. 647, 649 (1) (706 SE2d 436) (2011) (citations omitted). Moreover,

since the true effect of an alibi defense is to traverse the state’s proof that the defendant committed the crime, the charge that the burden is on the state to prove that the defendant committed the crime beyond a reasonable doubt itself necessarily covers the question of whether the evidence of alibi was sufficient to create a reasonable doubt.

Rivers v. State, 250 Ga. 288, 300 (8) (298 SE2d 10) (1982) (citations omitted). The trial court gave such charge here.

2. Motion for new trial.

In the motion for new trial, Gordon specifically asserted that the verdict was contrary to “the weight ofthe evidence.” See OCGA § 5-5-21. The trial court’s order denying the motion stated, “Upon consideration of Defendant’s Motion on the general grounds, same is hereby DENIED. Jackson v. Virginia, 443 U. S. 307 (1979).”

“[W]hen presented with a motion for new trial based upon the provision of OCGA § 5-5-21, the trial court is not limited to the Jackson standard, but rather is charged with the duty of exercising its discretion and weighing the evidence under the standard set forth in the statute.” Rutland v. State, 296 Ga. App. 471, 476 (3) (675 SE2d 506) (2009). “The trial court does not exercise its discretion when it evaluates the general grounds by applying the standard of Jackson v. Virginia, supra, to a motion for new trial based on the general grounds embodied in OCGA §§ 5-5-20 and 5-5-21.” Walker v. State, 292 Ga. 262, 264 (2) (737 SE2d 311) (2013); see also Manuel v. State, 289 Ga. 383, 386 (2) (711 SE2d 676) (2011) (trial court’s use of the Jackson v. Virginia standard of review shows that the trial court failed to apply its discretion since the question of whether there is sufficient evidence to support the verdict is one of law, not of discretion). Compare Brockman v. State, 292 Ga. 707, 714 (4) (b) (739 SE2d 332) (2013) (“The order’s language [denying the motion for new trial] clearly shows that the trial court made two separate determinations, a determination as to the sufficiency of the evidence under the Jackson v. Virginia standard and a discretionary determination under OCGA §§ 5-5-20 and 5-5-21, as to the guilt/innocence verdict. ...”); Copeland v. State, 327 Ga. App. 520, 526 (2) (759 SE2d 593) (2014) (“[Tjaken together, the trial court’s findings confirm that the trial court properly exercised its discretion [under OCGA §§ 5-5-20 and 5-5-21] and rejected [defendant’s] ‘general grounds’argument.”).

Decided September 3, 2014.

Kevin C. Armstrong, for appellant.

Gregory W. Edwards, District Attorney, for appellee.

Because the record fails to indicate that the trial court fulfilled its duty of exercising its discretion under the applicable standard set forth in OCGA § 5-5-21, we vacate the trial court’s decision denying [Gordon’s] motion for new trial on this ground and remand this case for the trial court’s consideration of [Gordon’s] claim under the proper standard.

Rutland, 296 Ga. App. at 476 (3).

Judgment vacated and case remanded with direction.

Andrews, P. J., and Ray, J., concur.


author: RAY, Judge.

text:
    A14A0774.
    RAY v. THE STATE.
    (763 SE2d 361)
   RAY, Judge.

Following a jury trial, Sylvester Ray was convicted on three counts of rape (OCGA § 16-6-1 (a) (1)), three counts of aggravated assault (OCGA § 16-5-21), two counts of kidnapping with bodily injury (OCGA § 16-5-40), and one count of aggravated sodomy (OCGA § 16-6-2). Ray now appeals from his convictions and the denial of his motion for a new trial, contending that the trial court erred in denying his motion to sever the charges for trial. Finding no error, we affirm.

Viewed in the light most favorable to support the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the record shows that this case arose out of three sexual assaults against three different women that occurred in DeKalb County between November 2002 and April 2003. As set forth below, all of the sexual assaults shared certain similarities.

The first sexual assault occurred on November 23, 2002. The 28-year-old victim, L. H., was leaving a bar that night when Ray, whom she did not know, offered to take her home. On the way, Ray told L. H. that he had to stop by his sister’s house to check on her. The house was completely dark when Ray turned his vehicle into the driveway and pulled into the garage. After parking the car and turning off the ignition, Ray slapped his arm across L. H.’s neck and told her not to scream or he would kill her. As Ray was taking off L. H.’s clothes, L. H. observed a gun in the console of the car. After raping L. H., Ray got out of the car to use the bathroom, and L. H. fled on foot. As she ran, L. H. heard the sound of a gun shooting. She was able to flag down a passing police car, and the officer took her to the hospital for a sexual assault examination. The swabs taken from the examination revealed the presence of sperm, and a subsequent analysis of the sperm showed that it contained DNA which matched Ray’s DNA profile.

The second sexual assault occurred on April 17, 2003. That morning, the 38-year-old victim, C. J., had just gotten out of her vehicle in the parking lot of a strip mall when Ray came up behind her, put a gun in her side, and ordered her to go back to her vehicle. C. J. did not know Ray and had never seen him before. Ray told C. J. to remove her belt, which he then placed around her neck and used to pull her back to her vehicle. Once they were inside the vehicle, Ray directed C. J. to drive to an office park next door, where he raped her. Ray then ordered C. J. to drive to a nearby junkyard, where he robbed her, raped her again, and forced her to perform oral sex on him. When Ray ran away, C. J. got back inside her vehicle and drove home. Later that day, C. J. went to the hospital for a sexual assault examination. The swabs taken from the examination revealed the presence of sperm, and a subsequent analysis of the sperm showed that it contained DNA which matched Ray’s DNA profile.

The third sexual assault occurred on April 20, 2003. That night, the 23-year-old victim, M. C., had gotten out of her car in a parking lot and was walking toward a sports bar when Ray called her over to his vehicle. M. C. did not know Ray and had never seen him before. When she leaned down to look into his passenger-side window, Ray pointed a gun at her and ordered her to get in his car. Ray then drove her to a nearby park, where he ordered her out of the vehicle, cut her panties off with a knife, and raped her. After the sexual assault, Ray got back into his vehicle and drove away. After reporting the incident to the police, M. C. was taken to the hospital to undergo a sexual assault examination. The swabs taken from the examination revealed the presence of sperm, and a subsequent analysis of the sperm showed that it contained DNA which matched Ray’s DNA profile.

Ray argues that the trial court erred in denying his motion to sever because the separate offenses were merely similar in character, and that the joint disposition of the unrelated offenses and the confusion of law and evidence regarding the charges created a “smear effect,” depriving him of a fair determination of his guilt or innocence as to each of the offenses. We disagree.

On appeal, we review the trial court’s ruling on a motion to sever offenses under the abuse of discretion standard. Bryant v. State, 304 Ga. App. 456, 459 (1) (696 SE2d 439) (2010).

As a general rule, where the evidence of the other crimes would be admissible as similar transaction evidence at trial, “or where the similarity of the offenses manifests a pattern, the trial court does not abuse its discretion in denying the motion for severance.” (Citation and punctuation omitted.) Bryant, supra. Although a defendant has a right to sever multiple offenses if they are joined solely because they are of a similar character, “offenses have not been joined solely because they are of the same or similar character when evidence of one offense can be admitted upon the trial of another, i.e., when they are so strikingly similar as to evidence a common motive, plan, scheme or bent of mind.” (Citation and punctuation omitted; emphasis in original.) Green v. State, 291 Ga. 287, 289 (2) (728 SE2d 668) (2012). Additionally, “where the modus operandi of the perpetrator is so strikingly alike, that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined — subject to the right of the defendant to severance in the interests of justice.” (Citation and punctuation omitted.) Bryant, supra. Under such circumstances, a defendant is entitled to severance only if, “in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact would be unable to distinguish the evidence and apply the law intelligently as to each offense.” (Citations and punctuation omitted.) Id.

Instead of focusing on the similarities between the three incidents, Ray improperly focuses on the differences. However, independent acts “do[ ] not have to mirror every detail of the crime [s] charged, and may reflect only a portion of the acts that establish the crimes being tried.” (Citation and punctuation omitted.) Green, supra. Here, although the crimes in the present case occurred at different times and different locations and involved different victims, they were connected by more than just their similar character. The charges against appellant clearly show a recurring pattern of conduct suggesting a common scheme or modus operandi. Green, supra at 290 (2). The victims of the three sexual assaults were adult women between the ages of 23 and 38 years old, none of the women knew Ray, all three incidents occurred in DeKalb County within six months of each other, each victim was taken by vehicle to a secluded location before they were raped, all three incidents involved a handgun, and semen matching Ray’s DNA profile was found on each victim.

Decided September 4, 2014.

Ashleigh B. Merchant, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

In this case, the trial court properly found that each incident would be admissible as a similar transaction to show a common motive, plan, scheme, and bent of mind. “Moreover, this case was not so complex as to impair the jury’s ability to distinguish the evidence and apply the law intelligently as to each offense.” (Citations omitted.) Boatright v. State, 308 Ga. App. 266, 274 (2) (707 SE2d 158) (2011). Consequently, we find that the trial court did not abuse its discretion in denying the motion to sever the offenses. See Calhoun v. State, 318 Ga. App. 835, 836, 836-837 (1) (734 SE2d 809) (2012).

Judgment affirmed.

Andrews, P. J., and McFadden, J., concur.

       Ray was acquitted on another count of aggravated assault and one count of armed robbery, and the trial court directed a verdict on two other counts of aggravated assault.