text:
    A11A1385.
    ANDERSON v. THE STATE.
    (716 SE2d 813)
   Dillard, Judge.

Following trial, a jury convicted Eric Anderson and his co-defendant Omar Espinosa of armed robbery. Anderson appeals his conviction and the denial of his motion for new trial, arguing that the trial court erred in denying his motion for a mistrial based on the improper admission of his co-defendant’s statement to police and in finding that he failed to show that he received ineffective assistance of counsel. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence shows that at about 1:50 a.m. on September 19, 2004, Anderson walked into a local convenience store, picked up a piece of candy from one of the aisles, and approached the check-out counter. As the convenience-store clerk started to scan the candy for its sale price, Anderson pointed a pistol at her and ordered her to give him all of the money from the cash register. After the clerk complied, Anderson fled from the store, and the clerk called the police.

Shortly after the robbery occurred, a police officer patrolling the area noticed a burgundy Pontiac Grand Prix in the curbside lane adjacent to the convenience store, traveling at a curiously slow speed. As the officer approached the vehicle in his patrol car, it turned into the passing lane, increased its speed, and drove away. Only minutes later, the officer received a dispatch concerning the armed robbery at the convenience store, and based on his suspicion that the burgundy Grand Prix may have been involved, he radioed other officers to be on the lookout for that vehicle.

Within minutes, another officer spotted a vehicle matching the description provided by the patrolling officer and noticed that the vehicle had two occupants. Consequently, the officer pulled in behind the vehicle, activated his patrol car’s blue lights and public address system, and ordered the driver of the vehicle to stop. However, instead of stopping, the vehicle sped away, and a high-speed chase, involving several officers, ensued. The chase ended when the suspects’ vehicle crashed, but its two occupants were able to flee on foot before the pursuing officers arrived on the scene. Inside the abandoned vehicle, officers found several $1 and $5 bills and a candy wrapper.

A short time later, officers spotted Espinosa running through a residential backyard near the crash site and arrested him. Officers arrested Anderson at Espinosa’s mother’s home soon afterward. Both men were first taken back to the convenience store where the clerk identified Anderson as the man who robbed her. Thereafter, they were transported to the police station, and both provided statements. Anderson claimed that two men carjacked him, that one of them robbed the convenience store, and that they then forced him to attempt to elude the police. However, Espinosa volunteered that he had been the driver of the vehicle, that he had been talking with “others” for weeks about making a “quick buck,” and that they had been planning to rob a store.

Anderson and Espinosa were each indicted on one count of armed robbery. Prior to trial, the trial court ruled that both of their statements to police following their arrests were admissible but that any comments in their respective statements that implicated the other defendant were inadmissible pursuant to Bruton v. United States. During trial, the convenience-store clerk testified about the robbery and her identification of Anderson as the gunman. The State also introduced and played surveillance video footage from the convenience store, which showed the robbery as it occurred. In addition, several of the police officers involved testified regarding their pursuit and arrest of Anderson and Espinosa, and two of those officers further testified regarding the statements that Anderson and Espinosa made following their arrest. At the trial’s conclusion, the jury found both Anderson and Espinosa guilty of armed robbery.

Subsequently, Anderson filed a motion for new trial, in which he argued, inter alia, that his trial counsel provided ineffective assistance. After holding a hearing on the matter, the trial court denied Anderson’s motion in an order issued on September 1, 2009. On January 22, 2010, Anderson filed a notice of appeal, which this Court dismissed as untimely. However, on February 22, 2011, the trial court granted his motion for leave to file an out-of-time appeal. This appeal follows.

1. Anderson contends that the trial court erred in denying his motion for a mistrial based on a comment made during the State prosecutor’s opening and the testimony of two of the investigating police officers, all of which allegedly violated his Sixth Amendment right to confront witnesses under Bruton. In addressing this issue, we must first determine whether the State prosecutor’s comments and the officers’ statements violated Anderson’s confrontation-clause rights and, if so, whether that error was harmless beyond a reasonable doubt.

In Bruton, the Supreme Court of the United States held
that the admission of a statement of a non-testifying co-defendant which inculpates the defendant unconstitutionally deprives that defendant of the Sixth Amendment right to cross-examine witnesses, even where the jury is instructed to limit its consideration of the statement to the co-defendant who made it.

Furthermore,

[w]hile a non-testifying co-defendant’s statement which is redacted so that it eliminates any reference to the existence of the defendant will withstand scrutiny under Bruton so long as it is accompanied by instructions limiting its use to the case against its maker, a non-testifying co-defendant’s statement which is redacted by merely replacing the defendant’s name with a blank or symbol violates Bruton regardless of whether limiting instructions are given.

And “statements which, despite redaction, refer directly to a person whom the jury may infer to be the defendant run afoul of the confrontation clause even where the confession is the very first item introduced at trial.”

In the case sub judice, Anderson argues that the State violated the Bruton rule three different times during his trial, and therefore, the trial court should have granted his motion for a mistrial. Anderson claims that the first violation occurred during the State prosecutor’s opening statements when he informed the jury that although they may hear a claim that the defendants were carjacked and forced to try to elude the police, the evidence would show that there were only two occupants in the vehicle that led police on the high-speed chase. Anderson’s trial counsel did not object, but Espi-nosa’s trial counsel did, which was not surprising given that the prosecutor’s comment was a reference to Anderson’s statement to the police. Regardless, “Bruton is not violated if a co-defendant’s statement does not incriminate the defendant on its face.” Given that the comment at issue was in reference to a statement by Anderson and not his co-defendant and that it did not inculpate either defendant, the trial court correctly overruled the objection and motion for mistrial.

Anderson further argues that the Bruton rule was violated during the testimony of two of the investigating police officers. The first instance occurred when Espinosa’s trial counsel sought to clarify the testimony of the officer to whom Espinosa first made his statement. Specifically, Espinosa’s trial counsel asked the officer as follows: “[Officer], earlier you testified that Mr. Espinosa spontaneously said he was planning an armed robbery. Isn’t it true that he actually said he was talking with other people weeks prior about how they could make a quick buck?” The officer responded: “Yes.” The second instance occurred during the State prosecutor’s examination of the officer to whom both defendants made their formal statements. The prosecutor asked the officer to repeat what Espinosa had told him regarding his participation in the crime. The officer responded: “He advised that he had left his house going to [a nightclub]. The individual in the car with him wanted to go by the store first to obtain something to drink.”

Anderson’s trial counsel objected to both of these alleged Bruton violations, and Anderson now argues that the trial court erred in overruling those objections. We agree that the testimony concerning Espinosa’s statement that referenced “other people” with regard to making a “quick buck” and the “individual” with Espinosa on the night of the robbery could be considered references to a person whom the jury may infer to be Anderson. Nevertheless, pretermitting whether that testimony directly implicated Anderson and thus violated Bruton, such a violation may not require reversal “if the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the [statement] was harmless error.” And here, Anderson has not shown any harm resulting from this testimony. Indeed, given the fact that the convenience-store clerk positively identified Anderson as the person who robbed her at gunpoint, that video surveillance footage from the convenience store supported the clerk’s identification, and that Anderson’s carjacking claim was undermined by the officer who testified that there were only two occupants in the fleeing vehicle, the evidence against Anderson was so overwhelming that the testimony regarding Espinosa’s statement cannot be said to have contributed to the guilty verdict. Accordingly, the trial court did not err in denying Anderson’s motion for new trial on this ground.

2. Anderson contends that the trial court erred in finding that he failed to demonstrate that his trial counsel provided ineffective assistance in several respects. We disagree.

To prevail on his claim of ineffective assistance of counsel, Anderson “must show that counsel’s performance was deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” There is a strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption. Unless clearly erroneous, we will uphold a trial court’s factual determinations with respect to claims of ineffective assistance of counsel; however, a trial court’s legal conclusions in this regard are reviewed de novo. With these principles in mind, we now address Anderson’s claims.

(a) Focusing on the alleged Bruton violations, Anderson argues that his trial counsel rendered ineffective assistance by not moving to sever his case from that of his co-defendant Espinosa. We disagree.

During the hearing on Anderson and Espinosa’s motions for new trial, Anderson’s trial counsel testified that he did not move to sever his former client’s case from Espinosa’s case because he believed that in light of Bruton, if the two defendants were tried together, the chances of Espinosa implicating Anderson would diminish. Anderson’s trial counsel further testified that he thought the dangers of severance outweighed any benefits and that, even with the benefit of hindsight, he would have made the same decision.

The failure to file a motion to sever does not require a finding of ineffective assistance “where the decision whether to seek severance is a matter of trial tactics or strategy, and a decision amounting to reasonable trial strategy does not constitute deficient performance.” Accordingly, Anderson’s trial counsel’s decision on this issue cannot support a claim of ineffective assistance.

(b) Anderson also contends that his trial counsel performed deficiently by failing to object to the convenience-store clerk’s allegedly tainted in-court identification of Anderson. In support of his argument that the clerk’s in-court identification of him was tainted, he claims that she admitted during her testimony that she recognized Anderson based on the State’s prosecutor showing her a photograph of Anderson prior to trial. But although the clerk did, in fact, admit to seeing a photograph of Anderson prior to trial, contrary to Anderson’s argument, she testified that her in-court identification of Anderson was not based on a photograph but rather on her recognition of him from the time of the robbery.

It is certainly true, of course, that a conviction based on eyewitness identification at trial following a pretrial identification may be set aside if the pretrial identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. But “[e]ven if a pretrial identification is tainted by an impermissibly suggestive identification procedure, a subsequent in-court identification is admissible if it does not depend upon the prior identification but has an independent origin.” And, the record shows that the clerk’s identification of Anderson had such an independent origin. Thus, any objection to the clerk’s in-court identification would have lacked merit, and “[t]he failure to pursue a futile objection does not amount to ineffective assistance.” Accordingly, Anderson failed to show that his trial counsel rendered ineffective assistance in this regard.

(c) Anderson contends that his trial counsel provided ineffective assistance by failing to timely object when one of the testifying police officers provided his opinion as to what was depicted in the convenience store’s video surveillance footage while it was being played for the jury. He further contends that such testimony constituted impermissible bolstering. These contentions are without merit.

During the direct examination of one of the investigating officers, the State played the convenience store’s video surveillance footage from the night of the robbery and asked the officer several questions regarding the video. After having the officer note the point in the video at which Anderson pulls out his pistol, the State’s prosecutor asked the officer if he could tell what color the pistol was. The officer responded that it appeared “to be a dark or a black color pistol.” A moment later, the State’s prosecutor asked the officer if the red shirt that Anderson was wearing in the video was the same red shirt that was in evidence. At the same time that the officer responded affirmatively, Anderson objected on the ground that the officer was providing opinion evidence. The trial court agreed and struck the testimony from the record.

Despite the fact that the trial court ultimately sustained his objection, Anderson nevertheless argues that the officer’s testimony improperly bolstered what was depicted in the video. However, contrary to Anderson’s argument, this testimony was not improper bolstering. Indeed, “[ijmproper bolstering refers to character evidence intended to show a witness’ veracity, that is, his tendency to tell the truth.” Here, the officer was testifying as to his own observations regarding the video. Thus, because the officer’s testimony was not improper bolstering, Anderson’s trial counsel’s untimely objection did not constitute ineffective assistance.

(d) Anderson also contends that his trial counsel provided ineffective assistance by failing to object to inadmissible hearsay testimony. We disagree.

Following the testimony of the convenience-store clerk, one of the investigating officers testified, without objection, that after Anderson was arrested, he was brought back to the convenience store for a “show-up” identification, at which point the clerk identified him as the person who robbed her. Shortly thereafter, another investigating officer also testified that the store clerk identified Anderson as the robber after he was brought back to the store. This time, Anderson’s trial counsel objected but withdrew his objection when the State’s prosecutor incorrectly stated during the ensuing bench conference that he believed the clerk had already testified to identifying Anderson later that night after his arrest. In fact, the clerk had not been asked about the “show-up” identification.

Anderson argues that his trial counsel provided ineffective assistance by failing to object to the officers’ hearsay testimony regarding the clerk’s identification of Anderson. But here, the clerk testified at trial, and

[i]f a hearsay declarant is present at trial and subject to unrestricted cross-examination, a defendant’s right of cross-examination is satisfied, and the witnesses’ prior out-of-court statements are not hearsay under OCGA § 24-3-1 because the declarant is available for cross-examination, and the evidence does not rest upon the credibility of other persons.

Thus, any objection to the officer’s testimony would have been futile and, as previously noted, “[t]he failure to pursue a futile objection does not amount to ineffective assistance.”

Decided September 20, 2011.

Matthew L. Waters, for appellant.

Tom Durden, District Attorney, Melissa L. Poole, Assistant District Attorney, for appellee.

Moreover, assuming arguendo that the officers’ testimony regarding the “show-up” identification was objectionable, Anderson has failed to show that he was prejudiced by this testimony in light of the fact that it was merely cumulative of the clerk’s testimony, in which she positively identified Anderson as the person who robbed her at gunpoint. Accordingly, Anderson has failed to show that his trial counsel rendered ineffective assistance in this regard.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

        See OCGA § 16-8-41 (a).

       391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968).

       The trial court also denied a motion for new trial filed by Espinosa, and on appeal, we affirmed Espinosa’s conviction. See Espinosa v. State, 285 Ga. App. 69 (645 SE2d 529) (2007).

        See Davis v. State, 272 Ga. 327, 330 (6) (528 SE2d 800) (2000).

        Id.; see Bruton, 391 U. S. at 135-36.

        Davis, 272 Ga. at 330-31 (6) (footnotes and punctuation omitted).

        Id. at 331 (6) (footnote and punctuation omitted).

        Johnson v. State, 275 Ga. 650, 651 (2) (571 SE2d 782) (2002) (citation and punctuation omitted).

        See id. at 651-52 (2).

        See Davis, 272 Ga. at 331 (6).

        Richard v. State, 287 Ga. App. 399, 403 (4) (651 SE2d 514) (2007) (footnote and punctuation omitted).

        See, e.g., Collum v. State, 281 Ga. 719, 721-22 (2) (642 SE2d 640) (2007) (holding that because circumstantial evidence that defendant committed murder was overwhelming and prejudicial effect of co-defendant’s statement was insignificant, admission of statement was harmless error); Mason v. State, 279 Ga. 636, 638 (2) (b) (619 SE2d 621) (2005) (holding that even if a Bruton violation occurred, it was harmless error in light of overwhelming evidence against defendant); Richard, 287 Ga. App. at 403 (4) (holding that Bruton violation was harmless given the overwhelming evidence, including an eyewitness identification, that defendant committed the armed robbery).

        Chapman v. State, 273 Ga. 348, 349-50 (2) (541 SE2d 634) (2001) (citations omitted); see Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).

        Chapman, 273 Ga. at 350 (2).

        Henderson v. State, 303 Ga. App. 898, 898 (1) (695 SE2d 334) (2010).

        Jackson v. State, 281 Ga. 705, 707 (6) (642 SE2d 656) (2007) (citation and punctuation omitted); see Lott v. State, 303 Ga. App. 775, 784 (3) (694 SE2d 698) (2010).

        See, e.g., Jackson, 281 Ga. at 707 (6) (holding that trial counsel’s decision to not seek severance so that jury’s focus would be on co-defendant instead of counsel’s client was reasonable trial strategy); Lott, 303 Ga. App. at 784 (3) (same).

        Willis v. State, 309 Ga. App. 414, 416-17 (3) (a) (710 SE2d 616) (2011).

        Id. at 417 (3) (a) (citation omitted).

        Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008) (citation omitted); see also Roberts v. State, 309 Ga. App. 681, 685 (3) (710 SE2d 878) (2011).

        Goldey v. State, 289 Ga. App. 198, 199 (2) (a) (656 SE2d 549) (2008) (footnote and punctuation omitted).

        See id.

        Overton v. State, 295 Ga. App. 223, 237 (5) (671 SE2d 507) (2008) (citation and punctuation omitted).

        Ventura, 284 Ga. at 218 (4) (citation omitted).

        See White v. State, 283 Ga. 566, 570 (4) (662 SE2d 131) (2008) (holding that where hearsay evidence was cumulative of other admissible testimony, the failure to object thereto does not amount to ineffective assistance); Chatman v. State, 306 Ga. App. 218, 223-24 (c) (702 SE2d 51) (2010) (same).


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A11A0911.
    MORGAN v. THE STATE.
    (716 SE2d 821)
   Dillard, Judge.

Following a jury trial, Samuel Lee Morgan was convicted of trafficking in cocaine. Morgan’s sole enumeration of error on appeal is that the trial court erred in denying his motion to suppress the cocaine that was discovered during a search of the rental vehicle he was driving. For the reasons set forth infra, we affirm.

The record shows that Morgan and a passenger, his then-girlfriend Jessica Thompson, were traveling northbound on 1-85 when a Gwinnett County police officer observed the Chrysler PT Cruiser they were driving make an abrupt lane change without signaling, nearly cutting off another car. The officer then entered the roadway, caught up to Morgan’s vehicle, ran the tag number, and discovered that the tag was registered in North Carolina to a Dodge Caravan that belonged to a rental car company. At that point, the officer initiated a traffic stop.

After approaching the vehicle on the passenger side and detecting what he believed to be a faint odor of cocaine, the officer asked Morgan for his driver’s license. Morgan handed the officer a North Carolina identification card, and a subsequent check showed that Morgan’s driver’s license was suspended. Morgan also provided the officer with a copy of the rental agreement, which listed a third-party renter, showed neither Morgan nor Thompson as a driver, and advised that the vehicle was not to leave North Carolina. Additionally, the agreement provided that the car was scheduled to be returned to the rental company the day before.

When the officer learned that Morgan was driving with a suspended license, he decided to continue investigating the situation rather than make an immediate arrest. And when Morgan was informed that his license was suspended, he told the officer that Thompson could drive the vehicle instead. But after Thompson gave the officer her Virginia driver’s license, a check revealed that she too had a suspended license. The officer testified that Thompson became very nervous when she was informed that her license was suspended and that she appeared uncomfortable with his questions.

The officer proceeded to question both Morgan and Thompson separately as to where they were traveling to and from, and the two gave conflicting stories and became nervous when the officer informed each of their competing narratives. The officer also testified that he did not observe luggage, food wrappers, or normal travel attire, but he did see an air freshener hanging inside the rental car, all of which further aroused his suspicion. Thus, based on Morgan and Thompson’s nervousness and inconsistent stories, the officer asked Morgan for consent to search the vehicle after inquiring whether there were guns, illegal drugs, or large amounts of currency inside. Morgan denied that the vehicle contained any of these items and, according to the officer, consented to a search.

After back-up arrived, the officer began a search of the vehicle on the passenger side and again detected an odor of cocaine, which the officer was familiar with through extensive drug training and experience. When he opened the glove box, the officer noticed a brown paper bag sticking out from behind the compartment. A release of the compartment revealed a paper bag surrounding a plastic bag that contained a white powdery substance, which later tested positive as 499.08 grams of cocaine with a 68-percent purity. Both Morgan and Thompson were then placed under arrest and read their Miranda rights. After Morgan was placed in a patrol car (and after acknowledging that he understood his rights), he made a comment to the officer that he had not violated any traffic laws by changing lanes and that somebody must have tipped off the officer.

Thereafter, both Morgan and Thompson were indicted on charges of trafficking in cocaine. Morgan moved to suppress the cocaine found in the vehicle, arguing that he did not give valid consent to search and that there was no probable cause to search the vehicle. Morgan testified that the officer never requested consent to search and instead informed him that he would be searching the vehicle for officer-safety purposes. But the trial court denied the motion, finding that Morgan and Thompson’s detention was warranted by the facts surrounding the vehicle’s tag and rental agreement, as well as their inconsistent stories, all of which aroused the officer’s suspicion and led to further investigation. Additionally, the tried court noted that Morgan’s statements after arrest were inconsistent with his claim that he had not given consent to search. And following a joint trial, Thompson was acquitted but Morgan was found guilty of the offense. This appeal by Morgan follows.

At the outset, we note that this Court reviews a trial court’s ruling on a motion to suppress using the any evidence standard, “which means that we sustain all of the trial court’s findings of fact that are supported by any evidence.” And therefore, we “construe all evidence presented in favor of the trial court’s findings and judgment, accepting the trial court’s decision unless it is clearly erroneous.” With these guiding principles in mind, we now turn to Morgan’s argument.

Morgan argues on appeal that his consent to search the rental vehicle was not freely given under the totality of the circumstances and that the trial court’s ruling on credibility was clearly erroneous. We disagree.

It is, of course, the State’s burden to prove at a suppression hearing that “the consent was freely and voluntarily given under the totality of the circumstances.” And “[t]he crucial test is whether . . . the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” In this regard, Morgan appears to make two arguments. First, that “[t]he totality of the officer’s conduct was such that a reasonable person would not feel free to ignore the police presence or deny the officer’s request to search” because (1) Morgan knew he had given the officer an identification card, not a driver’s license; (2) Morgan knew he was not listed on the rental agreement and that the vehicle did not belong to him or Thompson; and (3) Morgan knew he was dealing with a uniformed police officer with arrest powers. Second, Morgan contends that the trial court’s credibility determination was clearly erroneous.

We find both of these arguments unavailing. Indeed, Morgan’s testimony before the trial court was that he did not consent to a search because the officer did not even request consent to search. Specifically, Morgan testified that

[i]t was actually more of a statement as if he was going to search the car .... Something along the lines [of] due to the fact of the car . . . supposedly being out of the State of North Carolina and the tags not being registered to the vehicle, he was going to search for his safety reasons .... If I can recall, when he stated that ... he was going to search the vehicle, I stated that the vehicle didn’t belong to me, so I couldn’t give consent to search[.]

And when asked if he at any time gave the officer consent to search, Morgan explicitly replied, “No, I didn’t.” On the other hand, the officer testified that he requested consent to search and that Morgan readily provided same.

The discrepancies between Morgan’s testimony and that of the officer created an issue of credibility for the trial court as to whether the officer did in fact request consent to search and whether Morgan actually consented, and we must accept the trial court’s determination in this regard unless it is clearly erroneous. And “Lijnsofar as the trial court’s ruling reflects a resolution of this question of credibility in favor of the State, we find no error as such is supported by the evidence.

Decided September 21, 2011.

Clark & Towne, Jessica R. Towne, for appellant.

Daniel J. Porter, District Attorney, Jennifer M. Taylor, Assistant District Attorney, for appellee.

Accordingly, we affirm the trial court’s denial of the motion to suppress.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

       The officer testified that, in his experience, a third-party rental agreement raises suspicion of trafficking in narcotics.

       Morgan told the officer that the two were on vacation and were returning from a visit with family in DeKalb County. Thompson told the officer that they had stayed at a motel in DeKalb and were heading to the Carolinas to visit additional family, but Morgan stated that the two were heading home. Additionally, Thompson did not know of an address or city to which the two were traveling.

       The officer testified that, in his experience, an air freshener is often used to mask the scent of narcotics.

       At a pre-trial Jackson-Denno hearing, the trial court held that this statement was admissible at trial.

        See OCGA § 16-13-31 (a).

        Jupiter v. State, 308 Ga. App. 386, 387 (1) (707 SE2d 592) (2011) (footnote and punctuation omitted).

        Id. (footnote and punctuation omitted); see also Lowe v. State, 214 Ga. App. 92, 93 (446 SE2d 532) (1994) (noting that appellate review is guided by three principles: (1) the trial judge sits as the trier of facts in a motion to suppress hearing; (2) the trial judge’s decision as to questions of fact and credibility must be accepted unless clearly erroneous; and (3) the appellate court must construe the evidence most favorably to upholding the findings and judgment made by the trial judge).

        Davis v. State, 306 Ga. App. 185, 188 (2) (702 SE2d 14) (2010) (citation and punctuation omitted).

        Id. (citation and punctuation omitted).

        See Bobbitt v. State, 195 Ga. App. 566, 567 (394 SE2d 385) (1990) (“While defendant testified that he did not consent to the search of the automobile, the resolution of the question of credibility thus presented was for the trial court and must be accepted unless clearly erroneous.” (citations omitted)); see also Tate v. State, 264 Ga. 53, 56 (3) (440 SE2d 646) (1994) (“Credibility of witnesses and the weight to be given their testimony is a decision-making power that lies solely with the trier of fact.”).

        Bobbitt, 195 Ga. App. at 567; see also Williams v. State, 196 Ga. App. 682, 682-83 (1) (396 SE2d 598) (1990) (upholding denial of motion to suppress on issue of credibility when, contrary to officers’ testimony, appellant contended that he did not give consent to search and it was undisputed that officers did not obtain written consent).


text:
    A11A1079.
    MURPHREE et al. v. YANCEY BROTHERS COMPANY.
    (716 SE2d 824)
   Dillard, Judge.

Edward William Murphree and his employer, Flint Equipment Company (“Flint”), appeal the trial court’s grant of an interlocutory injunction to Yancey Brothers Company (“Yancey”) to enforce a restrictive covenant contained in the employment contract Mur-phree had with his former employer. Murphree and Flint contend that the trial court erred in finding the restrictive covenant valid and enforceable. For the reasons set forth infra, we affirm the trial court’s findings related to the restrictive covenant, as well as its grant of the interlocutory injunction against Murphree and Flint.

The record shows that in 1993, Murphree began working for Carlton Company in Albany, Georgia, and made the transition into heavy-equipment sales (e.g., bulldozers, excavators, backhoes) six years later. Murphree worked in this position until 2002, when Yancey purchased Carlton Company. At that point, in order to continue his employment with Yancey, Murphree signed a contract that contained a restrictive covenant, which provided as follows:

The Employee agrees that while in the employment of the Company, and for a period of two (2) years following his/her termination of employment, with or without cause, he/she will not, for the purpose of competing with the Company, in any way, directly or indirectly, solicit, divert, or take away, or attempt to solicit, divert or take away, any of the customers, clients, accounts or business of the Company serviced or procured by the Employee, in whole or in part, at any time during the last 2 years of his/her employment. The temporal periods of this covenant shall be reduced to the actual length of employment where it is less than 2 years.

Thereafter, Murphree was employed by Yancey in the same capacity — as the predominant heavy-equipment salesman in his southwest Georgia territory — until 2010.

Toward the end of his tenure with the company, Murphree became dissatisfied with Yancey after repeatedly speaking with management about various and sundry concerns. These unaddressed concerns eventually motivated Murphree to meet with representatives from Flint, one of Yancey’s top competitors, in June 2010. Murphree claimed that during his employment discussions with Flint, he did not disclose his Yancey customer list but did discuss his general sales territory. And in the end, Flint expressed its desire to employ — and in fact did employ — Murphree in much of the same southwest Georgia territory, selling the same types of heavy equipment offered by Yancey.

When Murphree gave his resignation to Yancey on July 13, 2010, his supervisor reminded him of the nonsolicitation agreement he had signed with the company. This supervisor then asked Murphree whether he already had another job lined up, and Murphree replied that he had not yet decided which of a few opportunities to pursue. But it is undisputed that Murphree did not have multiple options and had, at that point, already decided to accept a position with Flint.

Additionally, prior to leaving the employ of Yancey (and before returning his company-issued laptop), Murphree used a thumb-drive to copy a number of company files that were later transferred to his Flint-issued laptop. According to Murphree, he only intended to remove personal pictures and other documents from his Yancey laptop but, inexplicably, these particular files would not copy alone and he therefore decided to copy the entirety of his work computer’s documents folder. Murphree admitted that some of the files that were copied and later transferred to his Flint laptop contained proprietary customer information that belonged to Yancey.

And then, after starting his employment with Flint, Murphree contacted his former Yancey clients to inform them that he had left Yancey to work for its leading competitor, and he submitted heavy-equipment bids to some of these old clients on behalf of Flint. It is undisputed that the proprietary information copied from Murphree’s Yancey laptop to his Flint laptop concerned these very same customers, with whom Murphree had spent years cultivating a relationship on behalf of Yancey.

When Yancey learned that Murphree was working for Flint and contacting his former clients, the company sent a letter to Murphree again reminding him of the restrictive covenant in his employment contract; however, Murphree gave no indication that he would abide by the agreement. Accordingly, Yancey thereafter filed a complaint for injunctive relief and damages against Murphree, alleging, inter alia, that Murphree was in violation of the employment agreement and had misappropriated trade secrets by copying proprietary information prior to his departure from the company. And finding the employment agreement’s restrictive covenant reasonable and enforceable, the trial court granted the interlocutory injunction to enforce the terms of the agreement and prohibit the continued or future misappropriation of Yancey’s trade secrets. This appeal by Murphree and Flint follows.

At the outset, we note that the decision of whether or not to grant equitable relief (such as an interlocutory injunction) “is generally a matter within the sound discretion of the trial court[,]” and the trial court’s decision should be sustained on appeal when there has been no abuse of that discretion. Nevertheless, the reasonableness of a restrictive covenant is a question of law, which is subject to de novo review. Moreover, restrictive covenants that are ancillary to employment contracts “receive strict scrutiny and are not blue-penciled[.]” This is because “it is generally true in the employer/employee relationship that the employee goes into a transaction such as this at a great bargaining disadvantage” and “does so in exchange for the opportunity to have [a] job.” With these guiding principles in mind, we will now address Murphree and Flint’s arguments.

1. Murphree and Flint argue that, contrary to the trial court’s finding, the restrictive covenant at issue is invalid and unenforceable because it fails to limit or define the scope of activity prohibited and that, accordingly, the trial court erred in granting an interlocutory injunction. We disagree.

In determining the legality of a restrictive covenant, “a court may consider the nature and extent of the business, the situation of the parties, and all other relevant circumstances.” The reasonableness of the restraints imposed is a question of law, and “the courts have established a three-element test of duration, territorial coverage, and scope of prohibited activity” to determine reasonableness. It is this last element that Murphree and Flint argue has not been satisfied by the restrictive covenant at issue.

The restrictive covenant in the case sub judice prohibits the employee from, for purposes of competing with Yancey, either directly or indirectly soliciting, diverting, or taking away (or attempting to do so) “any of the customers, clients, accounts or business of the Company serviced or procured by the Employee, in whole or in part, at any time during the last 2 years of his/her employment.” Murphree and Flint argue that this language fails to apprise him of what activities would be considered competitive and that, although he engaged in heavy-equipment sales for Yancey, the company also sells other products and provides other services. We find this argument unavailing.

It is well established that an employer “has a protectible interest in the customer relationships its former employee established and/or nurtured while employed by the employer” and that an employer is thus “entitled to protect itself from the risk that a former employee might appropriate customers by taking unfair advantage of the contacts developed while working for the employer.” Indeed, this is the very nature of the activities prohibited by a nonsolicitation clause, which differs from a noncompete clause.

And here, this type of activity is exactly what Yancey sought to prohibit through the clause at issue — the solicitation, diversion, or taking away of customers served or procured by a former employee. And the use of “for the purposes of competing” served to qualify the type of solicitation that was prohibited. Thus, this covenant prohibited Murphree from initiating affirmative action to compete with Yancey by contacting former customers, but the clause would not have precluded him “from accepting unsolicited business from the forbidden clients.” Accordingly, the trial court did not err in holding that the restrictive covenant was reasonable and, likewise, did not abuse its discretion by granting an interlocutory injunction to enforce same.

2. Because we have upheld the trial court’s grant of the interlocutory injunction pursuant to the reasonableness of the nonsolici-tation clause at issue, we need not address Yancey’s argument (or the appellants’ arguments in reply) that Murphree’s misappropriation of trade secrets and confidential information provided an independent, separate basis for issuing the interlocutory injunction.

Accordingly, for all the foregoing reasons, we affirm the trial court’s finding that the restrictive covenant was reasonable, as well as its accompanying grant of the interlocutory injunction.

Decided September 21, 2011.

Watson Spence, Christopher S. Cohilas, for appellants.

Spurlin & McCorvey, John C. Spurlin, Nelson, Mullins, Riley & Scarborough, Daniel M. Shea, Matthew T. Gomes, for appellee.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

       Flint was aware of Murphree’s employment contract with Yancey and assured Mur-phree that if an issue ever arose regarding the restrictive covenant, the company would handle it.

       It is likewise undisputed that Murphree failed to apprise his Yancey supervisor that he had even been in negotiations with Flint.

       Yancey produced an expert in computer forensics who testified that he did not believe Murphree had actually copied all of the files contained in his “My Documents” folder as claimed. Rather, it appeared to the expert that only 2,000 of Murphree’s approximately 4,000 files were copied, including the proprietary files now at issue. Murphree, however, presented the testimony of a family member who claimed to have helped Murphree with the file transfer just as it was described by Murphree.

       The relevant computer files contained the names of Yancey customers, their buying history, the quotes given to them on machine sales, pricing and merchandising programs, and discounts. And Murphree testified that part of cultivating a sales relationship with his clients involved keeping up with their heavy-equipment purchases, remaining in touch, and knowing when his clients would need to replace their machines.

       Flint later intervened in the action.

       Yancey learned that Murphree had transferred the proprietary information to a thumb-drive after the company employed an expert in computer forensics to examine the laptop’s hard drive.

        See Pittman v. Harbin Clinic Professional Ass’n, 263 Ga. 66, 66 (428 SE2d 328) (1993) (per curiam) (holding that Court of Appeals had jurisdiction when, “[allthough the parties sought equitable relief, both the orders enjoining the partners from violating their contracts and the orders denying the injunctive relief were secondary to the principal issue of the construction of the contracts — an issue of law” (citation omitted)).

        E.g., Essex Group, Inc. v. Southwire Co., 269 Ga. 553, 557 (2) (501 SE2d 501) (1998) (citation and punctuation omitted); see also Trujillo v. Great Southern Equipment Sales, LLC, 289 Ga. App. 474, 475-76 (657 SE2d 581) (2008) (“The decision whether to grant or deny interlocutory injunctive relief is in the discretion of the trial court and we will not disturb the trial court’s order in the absence of a manifest abuse of that discretion.” (citation and punctuation omitted)).

        See Reardigan v. Shaw Indus., Inc., 238 Ga. App. 142, 143 (1) (518 SE2d 144) (1999); see also McKinley v. Coliseum Health Group, LLC, 308 Ga. App. 768, 770 (1) (708 SE2d 682) (2011) (“The construction of a contract . . . presents a question of law for the court, which this Court reviews de novo.” (citations omitted)).

        Habif, Arogeti & Wynne, EC. v. Baggett, 231 Ga. App. 289, 289 (498 SE2d 346) (1998) (citation omitted); see also Malice v. Coloplast Corp., 278 Ga. App. 395, 400 (629 SE2d 95) (2006) (“Under Georgia law, most restrictive covenants in employment contracts are examined under strict scrutiny because they usually involve parties of uneven bargaining power.” (citation omitted)). We note that on May 11, 2011, the Georgia General Assembly amended OCGA § 13-8-53 to permit blue penciling, in that “a court may modify a covenant that is otherwise void and unenforceable so long as the modification does not render the covenant more restrictive with regard to the employee than as originally drafted by the parties.” OCGA § 13-8-53 (d). But the amended Code only applies to contracts entered into on or after May 11, 2011. See Ga. L. 2011, p. 399, § 5.

        Baggett, 231 Ga. App. at 290; see also Malice, 278 Ga. App. at 400 (“Generally, [restrictive covenants] are drafted by the employer, and the employee has a ‘take it or leave it’ choice.”).

        Reardigan, 238 Ga. App. at 143 (1) (citation omitted).

        Id. (citation omitted); see also Kuehn v. Selton & Assocs., Inc., 242 Ga. App. 662, 664 (1) (530 SE2d 787) (2000) (“To be reasonable, [a restrictive covenant] must be strictly limited as to time and territorial effect.” (citation omitted)). In addition to being reasonable, restrictive covenants must also be “founded on valuable consideration, reasonably necessary to protect the employer’s legitimate business interests,” and cannot “unduly prejudice the public’s interest.” Malice, 278 Ga. App. at 399 (citation omitted).

        See W.R. Grace & Co., Dearborn Division v. Mouyal, 262 Ga. 464, 467 (2) (422 SE2d 529) (1992) (“As the group which the employer wishes to protect from solicitation by the former employees becomes more narrowly defined, the need for a territorial restriction expressed in geographic terms becomes less important.” (citation omitted)); see also Trujillo, 289 Ga. App. at 478 (1) (holding that in absence of either a territorial restriction or a restriction limited to customers with whom former employee had contact, nonsolicitation provision was overbroad and unenforceable).

       There was evidence that in addition to heavy equipment, Yancey also sells novelty items (e.g., toys, hats, t-shirts) and replacement parts for equipment, and sells and leases other products.

        E.g., Mouyal, 262 Ga. at 466 (2) (citations omitted).

        See generally Baggett, 231 Ga. App. at 295-96 (2) (c) (describing the different interests protected by the two types of restrictive covenants and the types of activities precluded by each).

        Baggett, 231 Ga. App. at 298 (3) (c) (“Upon the application of strict scrutiny, prohibiting the solicitation and diversion of clients is reasonable as is prohibiting the contact of clients.” (footnote omitted)); see Palmer & Cay of Ga., Inc. v. Lockton Cos., 280 Ga. 479, 480 (1) (629 SE2d 800) (2006) (“A court will enforce an agreement prohibiting an employee from pirating his former employer’s customers served by the employee during the employment, at the employer’s direct or indirect expense.” (citation and punctuation omitted)); see also Cobb Family Dentistry, EC. v. Reich, 259 Ga. 450, 450-51 (383 SE2d 891) (1989). Compare Howard Schultz & Assocs. of the Southeast, Inc. v. Broniec, 239 Ga. 181, 184 (2) (236 SE2d 265) (1977) (holding, in context of a covenant not to compete, that it was unreasonable because the employee was prohibited from working in any capacity for a competitor and because it failed “to specify with any particularity the nature and kind of business which is or will be competitive with the employer”).

        Compare Riddle v. Geo-Hydro Engineers, Inc., 254 Ga. App. 119, 120 (561 SE2d 456) (2002) (holding that nonsolicitation covenant was overbroad when it did not limit purpose for which former employee could not solicit clients, prohibited former employee from selling unrelated items, and went beyond what was necessary to protect former employer’s business interests); Advance Technology Consultants, Inc. v. RoadTrac, LLC, 250 Ga. App. 317, 322 (4) (551 SE2d 735) (2001) (holding that covenants were unenforceable when “in neither [was] the prohibition against contacting or pursuing [former employer’s] clients restricted to efforts competitive with [former employer], but each simply prohibitfed] contact for any purpose” (emphasis supplied)).

        See Baggett, 231 Ga. App. at 298 (3) (c); see also Sysco Food Sucs. of Atlanta, Inc. v. Chupp, 225 Ga. App. 584, 588 (2) (484 SE2d 323) (1997) (“An ‘indirect’ solicitation occurs when the former employee undertakes ‘some affirmative action on his part that could be considered a solicitation in the broadest possible sense.’ ” (citation and punctuation omitted)).

        Baggett, 231 Ga. App. at 298 (3) (c) (footnote omitted). Cf. Waldeck v. Curtis 1000, Inc., 261 Ga. App. 590, 592 (583 SE2d 266) (2003) (“[A] covenant prohibiting a former employee from merely accepting business, without any solicitation, is not reasonable.” (footnote omitted)).

        See Whaley v. Alco Standard Corp., 253 Ga. 5, 6 (315 SE2d 654) (1984) (holding that nonsolicitation covenant was “reasonable in the scope of its prohibited activities” when it restricted “the solicitation of customers who were customers of [the] employer at the time of termination”): Cf. Sysco Food Svcs. of Atlanta, 225 Ga. App. at 588 (2) (holding that court incorrectly struck down nonsolicitation covenant as overly broad when “the plain language of the covenant and the affirmative conduct rule . . . require that the salesperson in question . . . actively participate in the indirect solicitation of his own former account”).

        See Marcoin, Inc. v. Waldron, 244 Ga. 169, 171 (1) (259 SE2d 433) (1979) (holding that trial court did not err in denying injunction when former employee had taken no affirmative action to solicit clients from former employer, and further holding that “the words ‘solicit,’ ‘divert’ and ‘take away’ require affirmative action on the part of an employee before a restrictive covenant prohibiting such conduct is violated”).


text:
    A11A1102.
    McCLAIN v. THE STATE.
    (716 SE2d 829)
   Dillard, Judge.

Following trial, a jury convicted Damion McClain on two counts of armed robbery and one count of obstruction of a law-enforcement officer. McClain appeals his convictions and the denial of his motion for new trial, arguing that the trial court erred in allowing inadmissible hearsay testimony into evidence. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence shows that at around noon on November 11, 2005, McClain put on a ski mask, walked into a discount retail store that was located across the street from the extended-stay motel where he was residing, pulled out a gun, and demanded that the store manager open the store’s safe. When the manager was unable to open the safe quickly, McClain pointed his gun at a cashier and ordered her to open the cash register. After she complied with his demand, McClain emptied the cash register’s money drawer into a bag and fled from the store post haste, back toward his motel. Once outside, McClain removed his ski mask. As he ran across the store’s parking lot, McClain passed an ATM that was being used by the front-desk manager of the motel, who recognized McClain as a current resident.

A few minutes later, a member of the motel’s housekeeping staff entered an elevator at the complex just as McClain was exiting it. The housekeeper — who likewise recognized McClain as a resident of the motel — noticed that McClain was sweating, that he was not wearing a shirt, and that he dropped a large amount of change on the elevator floor. As he rushed past her, McClain told the housekeeper that she could keep the dropped change but added, “You didn’t see me.” Subsequently, the housekeeper saw McClain run back downstairs to the motel’s parking lot and leave the complex in a newer model black Camaro.

Shortly thereafter, police officers — who had been made aware of the robbery and McClain’s suspected involvement — saw McClain’s car pull into the parking lot of a restaurant not far from his motel. Following a brief struggle, the police officers arrested McClain and, in the process, found a large amount of cash. And later, while in custody, McClain voluntarily provided a statement to police officers, in which he admitted to robbing the discount retail store.

McClain was thereafter indicted on two counts of armed robbery two counts of obstruction of a law-enforcement officer, and one count of theft by receiving of a motor vehicle. During McClain’s trial, the State introduced his confession into evidence. Additionally, the store cashier and one of the store’s customers testified regarding the details of the robbery, and the two motel employees testified regarding McClain’s suspicious behavior immediately following the robbery. The store manager also provided her account of the robbery and testified that a few minutes after the masked McClain fled, she reviewed the store’s video-surveillance system, which showed McClain approach the store and then don his mask before entering. McClain objected to this testimony on the ground that the actual surveillance system recording had not been produced and could not be viewed at trial because it had been recorded over before a copy could be made. The trial court overruled the objection, and the store manager then further testified that upon reviewing the surveillance system recording, she recognized the unmasked McClain as a previous customer of the store with whom she had conversed in the past.

At the conclusion of the trial, the court directed a verdict of acquittal as to the theft by receiving count and as to one of the obstruction counts, and the jury found McClain guilty on the two armed robbery counts and the remaining obstruction count. McClain subsequently filed a motion for new trial, which the trial court denied after conducting a hearing on the matter. This appeal follows.

McClain contends that the trial court erred in failing to exclude as hearsay the store manager’s testimony regarding her review of the store’s video-surveillance-system recording, which showed an unmasked McClain just before he entered the store but which had since been recorded over and was therefore unavailable for viewing at trial.

In considering McClain’s argument, we begin by noting that “[t]he admission of evidence is committed to the sound legal discretion of the presiding judge, whose determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.” Moreover, hearsay evidence is defined as “that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons”; and hearsay “generally relates to an out-of-court statement made by someone other than the witness.” Therefore,

[b]y definition, evidence is hearsay when a witness at trial offers evidence of what someone else said or wrote, outside of court, and the proponent’s use of the evidence essentially asks the jury to assume that the out-of-court declarant was not lying or mistaken when the statement was made.

With these guiding principles in mind, we will now address the substance of McClain’s argument.

Specifically, McClain argues that the manager’s testimony concerning the video-surveillance-system recording constituted inadmissible hearsay, relying on this Court’s decision in In the Interest of C. G. in support of same. However, recently in Hammock v. State, this Court held that testimony nearly identical to that at issue in the case sub judice was not hearsay and in doing so explicitly disapproved of the holding in In the Interest of C. G. Accordingly, McClain’s contention lacks merit.

Indeed, as was the case with the relevant witnesses’ testimony in Hammock, the store manager in this case did not testify about what another person said or wrote outside of court. Rather, she testified as to her personal observations of McClain’s conduct that appeared on the video-surveillance-system recording. And given that “this testimony did not ask the jury to assume the truth of out-of-court statements made by others, and instead the value of the testimony rested on [the store manager’s] own veracity and competence, the testimony was not hearsay.” Thus, as was the case in Hammock, “the jury was free to disregard [the store manager’s] testimony that the individual depicted in the surveillance video was [McClain].” Accordingly, the trial court did not abuse its discretion in allowing the store manager to testify regarding her observation of the video-surveillance-system recording.

Decided September 21, 2011

Sheueli C. Wang, for appellant.

Robert D. James, Jr., District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

        See OCGA § 16-8-41 (a).

        See OCGA § 16-10-24 (a).

        See OCGA § 16-8-7 (a).

        Lott v. State, 303 Ga. App. 775, 784 (4) (694 SE2d 698) (2010) (citation and punctuation omitted).

       OCGA § 24-3-1 (a).

        Hammock v. State, 311 Ga. App. 344, 345 (1) (715 SE2d 709) (2011) (citation and punctuation omitted).

        Diaz v. State, 275 Ga. App. 557, 559 (621 SE2d 543) (2005) (citation omitted).

       261 Ga. App. 814 (584 SE2d 33) (2003).

       311 Ga. App. at 344 (1).

        See id. at 344 (1).

        See id.

        Id. at 345 (1) (citation and punctuation omitted); see also Lott, 303 Ga. App. at 785 (4) (holding that officer’s testimony that she saw photograph of defendant on a cell phone was not hearsay); Troutman v. State, 297 Ga. App. 196, 197-98 (2) (676 SE2d 836) (2009) (holding that testimony that a certain telephone number was displayed on a cell phone as having been recently called was not hearsay); Diaz, 275 Ga. App. at 559 (finding that testimony in which witnesses discussed their own actions and observations did not constitute hearsay).

        Hammock, 311 Ga. App. at 345 (1) (citation and punctuation omitted); see also United States v. White, 639 F3d 331, 336 (7th Cir. 2011) (Manion, J.) (same).


text:
    A11A1161.
    CAMERON et al. v. MILES.
    (716 SE2d 831)
   Dillard, Judge.

Marion Cameron and Cameron & Miles, EC. appeal the trial court’s grant of a motion to strike their answer and counterclaim, as well as the court’s decision to award attorney fees to Monica Miles. For the reasons noted infra, we reverse the trial court’s grant of the motion to strike and vacate and remand on the issue of attorney fees.

The record shows that Monica Miles sued Marion Cameron and Cameron & Miles, EC. (collectively “Cameron”), seeking dissolution of a corporation; alleging breach of the covenant of good faith and fair dealing, breach of fiduciary duty, stubborn litigiousness; and requesting attorney fees. Cameron answered and filed a lengthy counterclaim with numerous allegations. The parties thereafter engaged in discovery, and Miles eventually filed a motion to compel, contending that Cameron refused to respond to discovery requests. Cameron opposed the motion to compel and later sought to extend the discovery period by 90 days.

Miles opposed Cameron’s motion to extend discovery and filed a motion to strike Cameron’s answer and counterclaim, in which she also sought attorney fees. Cameron did not file a response to Miles s motion to strike, though she did respond to another outstanding motion and requested that the case be placed on the trial court’s next available hearing calendar to address various pending motions.

The trial court granted Cameron’s request for a hearing, after which the court orally granted Miles’s motion to strike. Cameron, however, was not notified when the final written order was entered, and the trial court thereafter denied her motion to set aside the order. On a previous appeal to this Court, we reversed this denial and directed the trial court to reenter judgment, which it did.

The trial court’s decision to strike Cameron’s answer and counterclaim was based upon the “pleadings, motions submitted by counsel for the Plaintiff, the testimony presented by counsel during the hearing, and the arguments of counsel, and all matters of record.” In its very summary order, the trial court stated that it was granting the motion to strike after finding that Cameron had failed to respond to same. And based on the answer and counterclaim being stricken, the court then entered a default judgment in favor of Miles. The court also awarded attorney fees in the amount of $25,000. This appeal by Cameron follows.

1. Cameron first argues that the trial court erred in striking her answer and counterclaim because the stated reason behind the court’s decision did not warrant the use of this harsh sanction. We agree.

At the outset, we note that rulings on motions to strike and for entry of default judgment are reviewed by this Court using an abuse of discretion standard. Indeed, a “trial judge has broad discretion in the enforcement of the discovery provisions of the Civil Practice Act, and [we] will not interfere with the exercise of that discretion absent clear abuse.” Moreover, a total failure to respond to a discovery request can subject “a party to immediate sanctions pursuant to OCGA § 9-11-37 (d).” Nevertheless, dismissal and default are the harshest sanctions available for the trial court to impose, and “| w]e have cautioned against the use of these harsher sanctions except in extreme cases[.]”

In this regard, Miles’s motion to strike argued, inter alia, that Cameron was intentionally slow and unresponsive to discovery requests, that Miles had sent a good faith letter to resolve the issue, and that under OCGA § 9-11-37, Cameron’s answer and counterclaim should be struck and Miles should be awarded attorney fees. And while we have previously upheld a trial court’s decision to strike a party’s answer and counterclaim when that party has been intentionally slow and unresponsive to discovery requests, the trial court in the case sub judice explicitly stated in its order that it struck Cameron’s answer and counterclaim — and, accordingly, entered default judgment — based solely upon Cameron’s failure to respond to the motion to strike. In doing so, the trial court erred.

In so holding, we note that the hearing at which the trial court orally granted Miles’s motion was not transcribed, leaving us with no transcript to review on appeal. And while it is generally true that in the absence of a transcript “[w]e must presume the rulings of the trial court are supported by the evidence,” this principle only applies if consideration of the transcript is essential to the resolution on appeal. But here, the trial court’s error appears on the face of its summary order, making a review of the transcript unnecessary to warrant a reversal on this enumeration of error.

As we have previously held, “[t]he failure of a nonmoving party to file responsive material . . . does not automatically entitle the moving party to judgment” because “Ltjhere is no such thing as a default judgment on the pleadings. For this reason, we conclude that the trial court’s grant of the motion to strike for its stated basis was an abuse of discretion. Thus, although Miles now contends that the trial court did not strike the answer and counterclaim due solely to Cameron’s failure to respond to the motion and that it was instead granted for the reasons given in the actual motion to strike, the explicit language of the trial court’s order (and Miles’s own subsequent filings) suggests otherwise. Accordingly, we reverse the trial court’s order striking Cameron’s answer and counterclaim and the entry of default judgment.

2. Cameron further argues that the trial court erred in awarding Miles $25,000 in attorney fees with no hearing or motion on same, and with no factual or statutory basis for the award contained in the trial court’s order. We agree that the trial court’s order is deficient in this respect and therefore vacate and remand for clarification.

The parties dispute under which statutory basis the trial court awarded the attorney fees, whether Miles requested attorney fees, and whether the issue was properly addressed during the untran-scribed hearing. What is undisputed is that the trial court’s order does not specify a statutory basis or findings of fact to support the attorney-fees award. And given our analysis and holding supra in Division 1 (i.e., that the trial court improperly struck Cameron’s answer and counterclaim), we are unable to conclude under what authority or factual basis the trial court awarded attorney fees. We therefore vacate the trial court’s grant of this award and remand for further clarification of this order.

Decided September 21, 2011.

Hollowell, Foster & Herring, Stanley E. Foster, Jolanda E. Herring, for appellants.

Precious Anderson-Scott, David A. Webster, for appellee.

Accordingly, for all the foregoing reasons, we reverse the trial court’s grant of the motion to strike Cameron’s answer and counterclaim and the entry of default judgment, and we vacate the grant of attorney fees and remand with direction.

Judgment reversed in part and vacated in part, and case remanded with direction.

Smith, P. J., and Mikell, J., concur.

       It does not appear that the trial court ever ruled on this motion.

        Cameron v. Miles, 304 Ga. App. 161, 163 (695 SE2d 691) (2010).

        E.g., Heath v. Beech, 300 Ga. App. 756, 756 (1) (686 SE2d 283) (2009); Edenfield & Cox, EC. v. Mack, 282 Ga. App. 816, 816 (640 SE2d 343) (2006).

        Wetherington v. Koepenick & Horne, Inc., 153 Ga. App. 302, 304 (2) (265 SE2d 107) (1980) (citation and punctuation omitted); see also Flott v. Southeast Permanente Med. Group, Inc., 274 Ga. App. 622, 623 (2) (617 SE2d 598) (2005) (“Trial judges have broad discretion in controlling discovery, including imposition of sanctions, and appellate courts will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion.” (footnote and punctuation omitted)).

        Barron v. Spanier, 198 Ga. App. 801, 801 (403 SE2d 88) (1991) (citations omitted); see also Green v. Snellings, 260 Ga. 751, 752 (1) (400 SE2d 2) (1991) (“Uniform Superior Court Rule 6.4 (B) does not require the moving party seeking to compel discovery to confer with counsel for the opposing party prior to filing a motion to compel where no discovery responses have been filed.”).

        Schrembs v. Atlanta Classic Cars, Inc., 261 Ga. 182, 182 (402 SE2d 723) (1991) (citation omitted); see also Rucker v. Blakey, 157 Ga. App. 615, 615-16 (278 SE2d 158) (1981) (observing that predecessor of OCGA § 9-11-37 was identical to its Federal Rules equivalent, which “has been interpreted to require a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance” before a motion to strike and default judgment should be granted for discovery abuses (citation and punctuation omitted)).

        See, e.g., Green, 260 Ga. at 752 (1) (affirming dismissal of an answer when “the record support[ed] the trial court’s finding in its order that [the defendant] willfully failed to file interrogatory responses”); Flott, 274 Ga. App. at 625 (2) (affirming dismissal of a claim when “[t]he trial court was authorized to conclude that [the plaintiff] was intentionally prolonging the discovery process” (footnote omitted)); Lightwerk Studios, Inc. v. Door Units of Ga., Inc., 191 Ga. App. 756, 756-57 (1) (382 SE2d 699) (1989) (affirming dismissal of defendant’s answer and counterclaim when evidence indicated that they “were uncooperative in arranging for discovery”); see also Bryant v. Nationwide Ins. Co., 183 Ga. App. 577, 578 (359 SE2d 441) (1987) (“[T]he failure of a party either to respond to interrogatories or to seek a protective order authorizes the imposition of immediate sanctions without the preliminary necessity of an order to compel.” (citation omitted)).

        Wetherington, 153 Ga. App. at 305 (2) (citation and punctuation omitted); see also Sterling, Winchester & Long, LLC v. Loyd, 280 Ga. App. 416, 419 (4) (634 SE2d 188) (2006).

        See, e.g., Baker v. Brannen/Goddard Co., 274 Ga. 745, 747 (1) (559 SE2d 450) (2002).

        Neely v. Jones, 264 Ga. App. 795, 796 (592 SE2d 447) (2003) (citations and punctuation omitted); see also Bishop v. Westminster Schools, Inc., 196 Ga. App. 891, 892 (1) (397 SE2d 143) (1990) (rejecting argument that party should be entitled to judgment on the pleadings when opposition failed to file a response to motion for same).

        Cf. Robertson v. Wheeler, 208 Ga. App. 68, 68 (1) (429 SE2d 714) (1993) (holding that trial court erred in granting summary judgment solely because the nonmovant failed to file the required pleadings, and noting that “the order . . . plainly states that was the reason for granting summary judgment”).

       In Miles’s response to Cameron’s motion to set aside the original order, Miles noted that
      [t]he reason the Defendants lost this case is because their counsel failed to answer a critical motion. Ironically, the very reason the Plaintiffs Motion To Strike was submitted was due to the Defendant’s [sic] constant disregard for timeliness under the rules of civil procedure. The fact that they did not respond to [the motion] was the final act in a series of several throughout the litigation in which Defendants’ counsel failed to respond timely, if at all.
      And in a later motion, Miles again highlighted that “[a]s a consequence of Defendants’ failure to file any responsive motion . . . , the Court orally granted the Plaintiffs [motion].”

        See Cotting v. Cotting, 261 Ga. App. 370, 371-72 (1), (2) (582 SE2d 527) (2003) (holding, when trial court did not provide factual findings in order granting fees, “[s]imply put, we are in the dark regarding the trial court’s intent, as well as the basis for its ruling, and we cannot properly review the ... fee award”); see also Unifund CCR Partners v. Mehrlander, 309 Ga. App. 685, 686-87 (710 SE2d 882) (2011) (holding that “meaningful appellate review” was impossible when, inter alia, trial court “failfed] to include in its order an explanation for the statutory bases upon which the award of attorney fees and litigation expenses was granted, as well as express findings of fact and conclusions of law in support of same” (footnote omitted)). Compare Simmons v. Simmons, 288 Ga. 670, 673-74 (6) (706 SE2d 456) (2011) (on appeal, court was able to discern from record under which statutory authority the trial court granted award of attorney fees).

        See Leggette v. Leggette, 284 Ga. 432, 433 (2) n.5 (668 SE2d 251) (2008) (“The fact that the hearing on attorney fees was not transcribed does not require that we affirm the award, as our ruling is not ‘dependent upon consideration of evidence heard by the trial court.’ ” (citation omitted)). Cf. Cohen v. Nudelman, 269 Ga. App. 517, 524 (5) (604 SE2d 580) (2004) (vacating and remanding trial court’s award of expenses when it was unclear from order what statutory provision was the basis for the award, leaving this Court “unable ... to properly review the award”).


author: Andrews, Judge.

text:
    A11A1317.
    SMITH v. THE STATE.
    (717 SE2d 280)
   Andrews, Judge.

The State indicted Jerry Smith for rape (OCGA § 16-6-1) (Count 1), incest (OCGA § 16-6-22) (Count 2), exploitation of a disabled adult (OCGA § 30-5-8) (Counts 3 and 4), and sexual battery (OCGA § 16-6-22.1) (Counts 5, 6, and 7), concerning Smith’s contact with his two sisters. Smith moved to quash Count 2 on the ground that the first victim, S. A. S., was his adoptive rather than biological sister. Smith also moved to quash Counts 3 and 4 alleging exploitation of a disabled adult on grounds including that neither sister was “disabled” for purposes of OCGA § 30-5-8 and that the statute does not apply to sexual acts. After the State agreed to drop Count 4 concerning the second victim, we granted Smith’s application for interlocutory appeal from the trial court’s denial of his motions to quash, and now reverse because we accept the first and third of these contentions.

The interpretation of a statute is a question of law, which is reviewed de novo on appeal. Frix v. State, 298 Ga. App. 538, 539 (680 SE2d 582) (2009). “Because [a] trial court’s ruling on a legal question is not due any deference, we apply the ‘plain legal error’ standard of review.” Sharma v. State, 294 Ga. App. 783, 784 (670 SE2d 494) (2008). We also bear in mind that the “application of [a] statute’s standards sometimes requires an assessment of the surrounding circumstances to determine if the statute is violated.” State v. Boyer, 270 Ga. 701, 703 (1) (512 SE2d 605) (1999).

1. Smith argues that Count 2 of this indictment is insufficient as a matter of law because the Georgia incest statute does not prohibit sexual intercourse between a brother and his adoptive sister not related by blood. We agree.

Count 2 alleges that Smith “did unlawfully engage in sexual intercourse with [S. A. S.], accused’s sister, knowing that he is related to said sister by adoption, in violation of OCGA § 16-6-22.” An indictment is insufficient as a matter of law if the accused can admit to all of the facts in the indictment and still not be guilty of a crime. Lowe v. State, 276 Ga. 538, 540-541 (579 SE2d 728) (2003). The Georgia statute prohibiting incest provides in relevant part:

A person commits the offense of incest when such person engages in sexual intercourse or sodomy, as such term is defined in Code Section 16-6-2, with a person whom he or she knows he or she is related to either by blood or by marriage as follows: ... (3) Siblings of the whole blood or of the half blood.

OCGA § 16-6-22 (a). The State concedes that S. A. S. is not a whole or half blood sibling of Smith, but instead notes that this Court has recognized that “adoptive children enjoy the rights and privileges of a biological child, including protection from incest.” Pyburn v. State, 301 Ga. App. 372, 373 (687 SE2d 909) (2009), citing Edmonson v. State, 219 Ga. App. 323, 324 (464 SE2d 839) (1995) (physical precedent as to Division 3 only; overruled on other grounds, Collins v. State, 229 Ga. App. 658 (495 SE2d 59) (1997)).

In Edmonson, we looked at the Georgia adoption and incest statutes to determine if a father could be convicted of incest for engaging in sexual intercourse and sodomy with his 13-year-old daughter. The adoption statute provides that “[a] decree of adoption creates the relationship of parent and child between each petitioner and the adopted individual, as if the adopted individual were a child of biological issue of that petitioner.” OCGA § 19-8-19 (a) (2). Thus, we held that an adopted child is protected under the portion of the incest statute that prohibits sexual intercourse or sodomy with “a person whom he or she knows he or she is related to either by blood or by marriage as follows: ... (1) Father and child or stepchild.” Edmonson, 219 Ga. App. at 324 (3); see also OCGA § 16-6-22 (a); Pyburn, 301 Ga. App. at 373 (1) (evidence was sufficient concerning charge of incest between father and adoptive daughter, citing Ed-monson).

In Shabazz v. State, 259 Ga. App. 339 (577 SE2d 45) (2003) (overruled on other grounds, Adams v. State, 285 Ga. 744, 748 (683 SE2d 586) (2009)), however, this Court held that sexual intercourse between two siblings not related by blood was not a violation of the Georgia incest statute because that statute expressly applies only to siblings “ ‘of the whole blood or of the half blood.’ ” Id. at 339 (1), quoting OCGA § 16-6-22 (a) (3). Similarly, in the case before us, Smith did not commit incest because his adoptive sister is not a whole blood or half blood sibling. The trial court erred when it denied the motion to quash Count 2 on this ground.

2. Smith attacks Count 3 of the indictment on three grounds: (a) that S. A. S. is not “disabled” for the purposes of the exploitation statute, (b) that the conduct alleged does not constitute “exploitation,” and (c) that OCGA § 30-5-8 (a) is unconstitutionally vague. We agree with the second of these contentions.

OCGA § 30-5-8 (a) is a criminal sanction enacted as part of the “Disabled Adults and Elder Persons Protection Act” set forth in OCGA § 30-5-1 et seq. OCGA § 30-5-8 (a) (1) provides that “[i]n addition to any other provision of law, the abuse, neglect, or exploitation of any disabled adult or elder person shall be unlawful.” (Emphasis supplied.) OCGA § 30-5-3 defines relevant terms as follows:

(1) “Abuse” means the willful infliction of physical pain, physical injury, mental anguish, unreasonable confinement, or the willful deprivation of essential services to a disabled adult or elder person.
(6) “Disabled adult” means a person 18 years of age or older who is not a resident of a long-term care facility, as defined in Article 4 of Chapter 8 of Title 31, but who is mentally or physically incapacitated or has Alzheimer’s disease, as defined in Code Section 31-8-180, or dementia, as defined in Code Section 49-6-72.
(9) “Exploitation” means the illegal or improper use of a disabled adult or elder person or that person’s resources through undue influence, coercion, harassment, duress, deception, false representation, false pretense, or other similar means for another’s profit or advantage.
(10) “Neglect” means the absence or omission of essential services to the degree that it harms or threatens with harm the physical or emotional health of a disabled adult or elder person.

We read a statute so as to give “sensible and intelligent effect” to each of its parts, always assuming that the General Assembly would not have written “mere surplusage” into law. See English v. State, 282 Ga. App. 552, 554-555 (2) (639 SE2d 551) (2006).

Count 3 of the indictment accuses Smith of “wilfully exploiting] [the victim], a disabled adult, through the illegal and improper use of said disabled adult, to wit: said accused did touch said victim in her vaginal area with his hand and his penis, in violation of OCGA § 30-5-8 (a).”

(a) (i) As a preliminary matter, we reject Smith’s contention that the indictment is faulty because paragraph (a) (2) of OCGA § 30-5-8 must apply. As amended in 2009, paragraph (a) (2) makes it illegal “to act with the specific intent to abuse, neglect, or commit exploitation of any disabled adult,” with the latter defined “[f]or purposes of this paragraph only” as someone who is both “(A) A resident of a long-term care facility, as defined in Article 4 of Chapter 8 of Title 31[,] and (B) Mentally or physically incapacitated or has Alzheimer’s disease, as defined in Code Section 31-8-180, or dementia, as defined in Code Section 49-6-72.” (Emphasis supplied.) OCGA § 30-5-8 (a) (2); see also Ga. L. 2009, p. 453. Smith asserts that because the victim has never lived at a long-term care facility, the indictment cannot stand. This indictment charges Smith not with acting with the intent to exploit the victim, however, but with actually exploiting the victim. Thus paragraph (a) (1) applies. See Ware v. State, 305 Ga. App. 229, 233 (2) (699 SE2d 435) (2010) (finding sufficient evidence of exploitation where the victim was not a resident of a long-term care facility when the exploitation took place and was thus an “elder person” as defined by OCGA § 30-5-3 (7.1) rather than a “disabled adult” as defined by OCGA § 30-5-8 (a) (2)).

(ii) S. A. S. was eighteen years old throughout the five-day period during which Smith is accused of exploiting her. There is no evidence in the record that the victim lived in a long-term care facility or that she suffered from Alzheimer’s disease or dementia. Evidence was also introduced at the hearing on the motion to quash that S. A. S. reads at a first- or second-grade level, does not understand monetary denominations, needs help with feminine hygiene, occasionally has bowel movements in her pants, and, in general, cannot care for herself on a daily basis. S. A. S’s case plan also shows that she scored an IQ of 30 when she was 16 years old, well below what the Supreme Court of Georgia considers to be the borderline of mental retardation. See Rogers v. State, 282 Ga. 659, 660 (653 SE2d 31) (2007) (“Expert testimony established that IQ scores between 70 and 84, while indicating borderline intellectual functioning, do not indicate mental retardation”). It follows that the trial court did not err when it denied the motion to quash on the ground that S. A. S. was not “disabled” for purposes of OCGA § 30-5-8.

(b) The trial court held that “sexual misconduct” for a person’s “sexual gratification” amounts to an “illegal or improper use of a disabled adult for [that person’s] own profit or advantage.” This holding does not comport with the plain terms of the statute.

The criminal provisions of OCGA § 30-5-8 have never been used to impose a criminal sanction for sexual acts performed on a disabled adult or elder person. See Laster v. State, 311 Ga. App. 360 (715 SE2d 768) (2011) (physical abuse); Ware, supra, 305 Ga. App. 229 (exploitation of real property); Everett v. State, 297 Ga. App. 351 (677 SE2d 394) (2009) (physical abuse); Manning v. State, 296 Ga. App. 376 (674 SE2d 408) (2009) (physical abuse); Marks v. State, 280 Ga. 70 (623 SE2d 504) (2005) (financial exploitation); Eads v. State, 193 Ga. App. 262 (387 SE2d 591) (1989) (financial exploitation). This is not surprising given that the stated purpose of the Act is “to provide protective services for abused, neglected, or exploited disabled adults and elder persons,” OCGA § 30-5-2, and that nothing in the statute’s definitions of these terms supports the conclusion that it was intended to regulate sexual contact with a disabled adult or elder person. “[W]hen particular things are enumerated in a statute, things not mentioned are excluded from application of the statute.” Long v. State, 271 Ga. App. 565, 569 (610 SE2d 74) (2004). If the legislature had intended for abuse of a sexual nature to be proscribed by OCGA § 30-5-8, it would have included sexual abuse in the definition of either “abuse” in OCGA § 30-5-3 (1) or “exploitation” in OCGA § 30-5-3 (9). “A criminal statute must be construed strictly against criminal liability and, if it is susceptible to more than one reasonable interpretation, the interpretation most favorable to the party facing criminal liability must be adopted.” (Citation and punctuation omitted.) Maxwell v. State, 282 Ga. 22, 23 (644 SE2d 822) (2007).

When the criminal penalty set forth in OCGA § 30-5-8 was first added to the Act in 1984, moreover, the statute rated a violation as a misdemeanor. Ga. L. 1984, p. 788. The statute was amended in 2001 to make the crime a misdemeanor of a high and aggravated nature, Ga. L. 2001, p. 484, and in 2003 to make it a felony. Ga. L. 2003, pp. 298-300. From 1981 to the present, then, the Act included essentially the same definition of the prohibited abuse, exploitation, and neglect. It seems unlikely that the legislature intended for the Act to apply to sexual abuse or exploitation, acts which would qualify as felonies under other criminal statutes, when the initial penalty applied under OCGA § 30-5-8 was a misdemeanor. Instead, it appears that the legislature intended for OCGA § 30-5-8 to apply only to specifically defined nonsexual acts, and that it gradually increased the penalties for these nonsexual acts in response to a perceived need to protect disabled persons from “abuse,” “neglect,” and “exploitation” as defined by the Act.

Decided September 21, 2011.

Teresa L. Smith, for appellant.

Layla H. Zon, District Attorney, Peter H. Boehm, Assistant District Attorney, for appellee.

In light of the Act and its history, the most reasonable construction of OCGA § 30-5-8 (a) is that the legislature did not intend for it to apply to sexual acts such as that alleged in Count 3 of this indictment. The trial court therefore erred when it denied the motion to quash on this ground.

3. Our holding in Division 2 moots Smith’s assertion of error concerning the vagueness of OCGA § 30-5-8 (a). See, e.g., Marks, supra, 280 Ga. at 74-75 (4) (declining to rule on vagueness challenge to OCGA § 30-5-8 where trial court had failed to rule on the issue).

Judgment reversed.

Phipps, P. J., and McFadden, J., concur.