text:
    A12A1552.
    JONES v. THE STATE.
    (733 SE2d 72)
   Dillard, Judge.

Following a jury trial, Nickholas Jones was convicted of six counts of aggravated assault and one count of participating in criminal street-gang activity. On appeal, Jones contends that the evidence was insufficient to support his convictions and that the trial court erred in (1) excluding two witnesses’ testimony regarding telephone conversations; (2) denying several of his requests to charge the jury on motive, mere presence, and aiding and abetting; and (3) denying his motion for severance. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on the night of September 19,2009, R. M. picked up his friends, M. B., K. M., T. L., D. D., andD. J., in his mother’s SUV and drove to a birthday party for a local teenage girl that was being hosted by the Black Velvet Lounge in Macon, Georgia. With invitations spread by word-of-mouth and text messages, the party was attended by over 100 teenagers. The event was monitored by the nightclub’s security personnel, and most of the attendees were searched for weapons before being allowed on the premises. But shortly before midnight, a fight started between some of the guests. The nightclub’s security guards quickly intervened to stop the fight, and after calling police, the club’s security guards and police officers shut down the party and ordered everyone to leave.

Upon departing from the club, R. M. and his five friends—none of whom had been involved in the fight—returned to their SUV and started to drive home. A few blocks away from the club, R. M. slowed the vehicle so that he and his friends could speak with a group of girls they knew, who were walking home from the party. As the vehicle slowed, T. L. yelled “Bloomfield” at the girls, referencing the neighborhood from which he and his friends in the SUV hailed. A moment or two following this brief encounter, gunfire erupted from some nearby abandoned buildings on the left side of the street and several bullets struck the SUV, wounding both K. M. and D. J. R. M. then sped off and, within a few minutes, came upon a police officer who was responding to a call that gunshots had been fired near the Black Velvet Lounge. After bringing the SUV to a halt, R. M. and his friends, except for D. J. who was unconscious, spilled out of the vehicle and informed the officer that D. J. and K. M. had been shot. The officer immediately called an ambulance, and D. J. and K. M. were taken to the hospital.

Thereafter, the remaining occupants of the SUV traveled to the police station to provide statements, but none of them witnessed who fired shots at the vehicle. However, law enforcement’s investigation of the incident was aided by some of the girls who had spoken with the occupants of the SUV just prior to the shooting. Specifically, one of those girls, I. G., informed the police that she saw Yovanis Whisby, Jamarcus Adams, Charles Iwo, and Nickholas Jones shoot at the SUV I. G. also advised the police that all four of the young men were members of a local street gang, the Bottomside Gangster Boys, that operated on the south side of Macon. In addition, two of the girls who were with I. G. that evening told the police during their interviews that although they did not see who actually perpetrated the shooting, Adams approached them and warned them to move out of the way just prior to the shooting. Furthermore, one of the girls stated that Iwo and Jones were with Adams when he issued the warning.

Based on the foregoing information, the lead detective investigating the shooting arrested Whisby and questioned him regarding the incident. During that interview, Whisby admitted that he, Adams, Iwo, and Jones were outside of the Black Velvet Lounge on the night in question and that Adams, Iwo, and Jones were armed with handguns and shot at the victims’ SUV. Consequently, Adams, Iwo, and Jones were also arrested, and all four were jointly charged, via a single indictment, with six counts of aggravated assault with a deadly weapon and one count of participation in criminal street-gang activity.

Thereafter, Iwo and Jones were jointly tried on the charges. During the trial, the six occupants of the targeted SUV testified about the incident but admitted that they had not seen the gunmen. However, two of the occupants, T. L. and his brother, D. D., recounted an incident involving Jones that occurred approximately three weeks prior to the shooting. Specifically, T. L. and D. D. testified that on August 28,2009, the school bus had just dropped them off at their stop when they were approached by Jones and several other young men, all of whom were claiming affiliation with the Bottomside Gangster Boys. T. L. responded by exclaiming “Bloomfield” and a fight ensued, which ended with Jones firing a handgun at the ground near T. L. and then fleeing with the rest of the crowd.

The State also offered the testimony of the girls who spoke to the SUV occupants just prior to the shooting, including I. G. And although I. G. testified at trial that she saw Iwo and Jones with guns but did not witness the actual shooting, the investigating detective who interviewed I. G. testified regarding her initial statement, in which she claimed that both defendants shot at the victims’ SUV. In addition, the State called Yovanis Whisby as a witness. However, after Whisby claimed at trial that he and his friends were outside the club that night but were not involved in the shooting, the State—through the testimony of the same investigating detective and a video recording of Whisby’s custodial interview—introduced Whisby’s earlier statement to the police, which implicated Iwo and Jones in the shooting.

At the conclusion of the trial, the jury found both Iwo and Jones guilty on all counts of the indictment. Thereafter, Jones filed a motion for new trial, which the trial court denied. This appeal follows.

1. Jones contends that the evidence was insufficient to support his convictions. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. And in evaluating the sufficiency of the evidence, “we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Thus, the jury’s verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” With these guiding principles in mind, we now address Jones’s specific challenges to the sufficiency of the evidence.

(a) Aggravated assault with a deadly weapon. Jones was charged with six counts of aggravated assault under OCGA § 16-5-21 (a) (2), which provides that “[a] person commits the offense of aggravated assault when he or she assaults [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Furthermore, it is well settled that “the act of firing a weapon into a group makes each individual in the group a separate victim and justifies a separate count of aggravated assault for each victim.”

In the case sub judice, there was evidence showing that Jones, Iwo, Adams, and Whisby were present outside the Black Velvet Lounge on the night in question, shot at the victims’ SUV, and wounded two of the victims in the process. Nevertheless, Jones argues that the evidence was insufficient because both Whisby and I. G.’s respective statements implicating him in the shooting were inconsistent with their trial testimony and, therefore, lacked credibility. However, any alleged inconsistencies in the evidence and issues of the witnesses’ credibility “were for the jury, not this Court, to resolve. . . ,” And here, the jury obviously resolved those issues against Jones. Accordingly, the evidence was sufficient to allow the jury to find that Jones was guilty of the charges of aggravated assault beyond a reasonable doubt.

(b) Participation in criminal street-gang activity. Jones was also charged with one count of participation in criminal street-gang activity under OCGA § 16-15-4 (a), which makes it unlawful for persons associated with a “criminal street gang” to engage in “criminal gang activity” by committing certain enumerated predicate offenses, including aggravated assault. A “criminal street gang” is defined as a “group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity. . . ,” And the statute clearly contemplates that the existence of such an organization, and that its members are “associated in fact,” may be established by “evidence of a common name or common identifying signs, symbols, tattoos, graffiti, or attire or other distinguishing characteristics. .. ” Additionally, our Supreme Court has held that a conviction under OCGA § 16-15-4 (a) requires that there “be some nexus between the [enumerated] act and an intent to further street gang activity.”

Here, I. G., in her initial statement to the police, claimed that Jones was a member of the Bottomside Gangster Boys, and both T. L. and D. D. testified that Jones touted his affiliation with the gang during the fight at the school bus stop that occurred nearly three weeks prior to the shooting outside the nightclub. Thus, there was some evidence that Jones was a member of an existing street gang that was involved in ongoing criminal gang activities. Furthermore, given that T. L. and D. D. were also occupants of the SUV that Jones targeted, an inference could be drawn that the shooting outside the nightclub was related to the fight at the bus stop and therefore was related to that earlier criminal gang activity. Accordingly, the evidence was sufficient to support Jones’s conviction of participation in criminal street-gang activity.

2. Jones also maintains that the trial court erred in precluding two of the defense’s witnesses from testifying about telephone conversations they had with I. G., in which she allegedly denied having seen who shot at the victims’ SUV. This contention is a nonstarter.

It is well established 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.” But with specific regard to telephone conversations, our Supreme Court has long required “that there be a sufficient basis for a witness to identify a person with whom he spoke over the telephone, before testifying as to the contents of the conversation.” Obviously, one way to authenticate the identity of the speaker in a telephone conversation is “direct testimony of voice recognition.” Additionally, sufficient evidence for authentication has also been recognized “where the party sought to be charged not only identifies himself over the telephone, but also later corroborates the conversation.” Nevertheless,

the testimony of one person to a conversation had with another person over a telephone, in which the person testifying did not know the other person or recognize the other’s voice, had not at that time ever heard the voice, and had never heard it since, and the identity of the other person had not been established otherwise than by what was said in the conversation itself, is hearsay and inadmissible. . . .

Indeed, this Court has previously held that

if the witness does not know a person and places a telephone call to the person’s place of business or personal telephone number, and asks for that person, these circumstances are not sufficiently reliable to authenticate the identity of the person who comes to the telephone, even if that person identifies himself.

In this matter, during Jones’s cross-examination of I. G., defense counsel asked her if she recalled a telephone conversation that she allegedly had with an investigator for the public defender’s office. When I. G. responded negatively, defense counsel requested that he be allowed to impeach I. G. with testimony from the investigator, but the State objected that such testimony would be hearsay. Consequently, outside the presence of the jury, defense counsel questioned the investigator to lay a foundation for her testimony regarding the telephone conversation. During this examination, the investigator testified that she left a business card at I. G.’s residence and later received a telephone call from a female, stating that she was I. G.’s mother. After the investigator asked to speak with I. G., another female got on the line and provided a date of birth and mobile phone number that matched the records the investigator had concerning I. G. The investigator then testified that I. G. told her that she did not actually see who shot at the victims. However, on cross-examination, the investigator conceded that, prior to the phone call, she had never met I. G., never had any contact with her, and could not recognize her voice. Subsequently, the trial court ruled that the investigator’s testimony regarding the phone call was inadmissible.

Later in the trial, counsel for Jones’s co-defendant called an investigator with the local chapter of the NAACP to testify about a telephone conversation that she had with I. G. concerning the case. When the State objected on hearsay grounds, I. G. was recalled as a witness and denied ever having such a conversation. Thereafter, the NAACP investigator was recalled and questioned outside the presence of the jury about the phone call. Similarly, the investigator testified that she called a phone number that she had been told belonged to I. G. and initially spoke to a woman claiming to be I. G.’s mother. Upon the investigator’s request, the woman put a person on the line who identified herself as I. G. But, once again, on cross-examination the NAACP investigator admitted that she never met I. G. before the phone call and had no way of confirming the identity of the person with whom she spoke. The trial court, therefore, ruled that this testimony was likewise inadmissible.

Jones argues that both the public defender’s investigator and the NAACP investigator’s telephone conversations with I. G. were admissible because in both instances, the speaker identified herself as I. G. and confirmed her date of birth and phone number. Nevertheless, in both instances the evidence was insufficient to authenticate the identity of the person with whom the investigators spoke. Although the speaker allegedly identified herself as I. G. and verified her telephone number and date of birth, both investigators testified that they did not know I. G., had never spoken to her before, and would not recognize her voice. Thus, there was no evidence of voice recognition. Nor was there any evidence that I. G. later corroborated the telephone conversations. To the contrary, she denied ever speaking to either investigator. Given these circumstances, there was insufficient evidence to authenticate the actual identity of the speaker in either investigators’ telephone conversation. Accordingly, the trial court did not err in precluding the investigators’ testimony regarding their telephone conversations on the ground that such testimony constituted inadmissible hearsay.

3. Jones next contends that the trial court erred in denying his request to charge the jury on the issue of a witness’s motive for testifying against a defendant. We disagree.

Atrial court’s refusal to give a requested jury charge is not error unless the request is “entirely correct and accurate; is adjusted to the pleadings, law, and evidence; and is not otherwise covered in the general charge.” And we review a trial court’s refusal to give a requested jury charge under an abuse-of-discretion standard.

In the case sub judice, in order to instruct the jury regarding the possible motives for Yovanis Whisby testifying as a witness for the State (despite the fact that there was no evidence that he did so as part of a plea deal), Jones requested the following charge:

In evaluating the witness’ [sic] motive for testifying against the defendant, the jury is authorized to consider whether the evidence shows bias or prejudice by the witness against the defendant. The jury may consider whether the testimony given by the witness was given under promise or expectation of immunity or lenient or light treatment. The jury may consider whether the testimony was given out of fear or intimidation by law enforcement officials. Whether or not such a deal exists is not crucial; what counts is whether or not the witness may be shading his testimony in an effort to please the prosecution. A desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness. The jury may consider whether the witness might tacitly assumes [sic] that he would receive some benefit by giving testimony favorable to the State, that is, did he have any hope in his mind as to favorable treatment. . . .

During the charge conference, the trial court noted its doubt as to the appropriateness of the requested charge. Ultimately, the court refused to give this charge and instead instructed the jury on the issue of credibility generally by stating: “In assessing the credibility of a witness, you may consider any possible motive or bias in testifying if shown by the evidence. You alone shall decide the believability of the witnesses.”

Jones argues that the trial court erred in refusing to give his requested charge on motive, but his argument lacks merit. First, contrary to the underlying premise of the requested charge, it is arguable as to whether Whisby’s trial testimony was favorable to the State, and “[i]f any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored, or not reasonably raised by the evidence, denial of the charge request is proper.” However, even if Whisby’s trial testimony could be construed as being favorable to the State, the court instructed the jury that it was the sole arbiter of the witnesses’ credibility and that it could consider any possible motive or bias in testifying that the witnesses might have. Thus, the charge that was given adequately covered the possible motives of the State’s witnesses, including those of Whisby.

4. Jones also contends that the trial court erred in denying his separate requests to charge on mere presence and aiding and abetting. Once again, we disagree.

Jones requested the following charge on mere presence:

The mere presence of a person at the scene of the commission of a crime at the time of its perpetration, without more, will not authorize a jury to find the person who was merely present guilty of consent in, and concurrence in, the commission of the crime, unless the evidence shows, beyond a reasonable doubt, that such person committed the alleged crime, helped in the actual perpetration of the crime, or participated in the criminal endeavor. [Cit.] Presence at the scene of the crime, even when coupled with knowledge and approval not amounting to encouragement, is not sufficient to show that a defendant is a party to a crime.

He also requested the following charge on aiding and abetting:

The mere presence of a defendant where a crime is being committed even coupled with knowledge by the defendant that a crime is being committed or the mere acquiescence by a defendant in the criminal conduct of others even with guilty knowledge is not sufficient to establish aiding and abetting.

On appeal, Jones argues that the trial court should have given the foregoing charges to show that he should not be found guilty just because he knew Adams, Whisby, and Iwo, or because he was present near the scene of the shooting. But although the trial court did not use the exact language requested by Jones, it nevertheless instructed the jury on grave suspicion, mere association, mere presence, party to a crime, and knowledge of a crime. Accordingly, the trial court’s charges more than substantially and adequately covered the principles contained in Jones’s requested charges.

5. Finally, Jones argues that the trial court erred in denying his pre-trial motion to sever his trial from that of his co-defendant, Iwo. This contention likewise lacks merit.

We first note that the decision whether to grant or deny a motion to sever is “within the discretion of the trial court,” and

[i]n exercising its discretion the trial court should consider the following three factors: (1) whether the number of defendants will create confusion of the law and evidence applicable to each defendant; (2) whether there is a danger that evidence admissible against one defendant will be considered against another despite cautionary instructions to the contrary; and, (3) whether the defenses of the co-defendants are antagonistic to each other.

Furthermore, the burden is on the defendant requesting the severance to do more than “raise the possibility that a separate trial would give him a better chance of acquittal.” Indeed, to prevail on a motion to sever, the defendant “must make a clear showing of prejudice and a consequent denial of due process.”

And here, the number of defendants (two) was small enough so that the danger of confusion was minimal, especially as both Jones and Iwo were charged with jointly participating in the same offenses and as the offenses were committed as part of the same crime scheme, i.e., shooting at the victims’ SUV. In addition, both Jones and Iwo simply denied participating in the shooting in any manner, and therefore, their defenses were not antagonistic to one another. Thus, as Jones fails to point to any testimony or other evidence introduced at the joint trial he received that “could not have been introduced against him in a separate trial, he has failed to meet his burden of showing harm.” Accordingly, the trial court did not abuse its discretion in denying Jones’s motion to sever.

Decided October 12, 2012.

Robert M. Bearden, Jr., for appellant.

Gregory W. Winters, District Attorney, Dorothy V. Hull, Assistant District Attorney, for appellee.

For all the foregoing reasons, we affirm Jones’s convictions.

Judgment affirmed.

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

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

       Because many of the victims and witnesses in this case were minors at the time of the incident, we refer to them by their initials only.

        See OCGA § 16-5-21 (a) (2).

        See OCGA § 16-15-4 (a).

       Adams and Whisby pleaded guilty to charges related to the shooting.

        See English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).

        Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation omitted).

       OCGA § 16-5-21 (a) (2).

        Martin-Argaw v. State, 311 Ga. App. 609, 612 (1) (716 SE2d 737) (2011) (punctuation omitted).

        Id. at 613 (2) (citation and punctuation omitted).

        See Adkins v. State, 279 Ga. 424, 425-26 (2) (614 SE2d 67) (2005) (holding that evidence that defendant participated in a drive-hy shooting was sufficient to support aggravated-assault conviction); Martin-Argaw, 311 Ga. App. at 611-12 (1) (finding that evidence that defendant fired a handgun at a group of people was sufficient to support defendant’s aggravated-assault convictions).

        See OCGA § 16-15-3 (1) (J).

        See OCGA § 16-15-3 (2).

        See id.

        Rodriguez v. State, 284 Ga. 803, 807 (1) (671 SE2d 497) (2009) (punctuation omitted).

        See Morey v. State, 312 Ga. App. 678, 686 (2) (b) (719 SE2d 504) (2011) (holding that evidence that defendant participated in aggravated assaults with friends wearing clothing bearing gang symbols and who earlier that same day engaged in stalking and making terroristic threats against different victims was sufficient to show that defendant was a member of a criminal street gang). Compare In the Interest of A. G., 317 Ga. App. 165 (730 SE2d 187) (2012) (reversing participation in criminal street-gang conviction when, inter alia, State failed to show evidence describing defendant’s gang or that the gang was involved in criminal activities); In the Interest of A. D., 311 Ga. App. 384, 386 (715 SE2d 787) (2011) (same).

        See Morey, 312 Ga. App. at 686-87 (2) (b) (holding that defendant and his street gang’s aggravated assault on victims shortly after defendant and his gang unsuccessfully attempted to attack others satisfied “the requirement that the ‘criminal gang activity’ was ongoing at the time of the incidents underlying the charged offenses”).

        Patterson v. State, 287 Ga. App. 100, 100 (650 SE2d 770) (2007) (punctuation omitted).

        Brown v. State, 266 Ga. 723, 725 (3) (470 SE2d 652) (1996).

        Patterson, 287 Ga. App. at 101 (1) (punctuation omitted).

        Id. at 102 (1).

        Id. (punctuation omitted).

        Id. We note in passing that under OCGA § 24-9-901 (b) (6) (A) (effective Jan. 1, 2013) of the new Georgia Evidence Code, telephone conversations may be authenticated “by evidence that a call was made to the number assigned at the time by a telephone service provider to a particular person or business, if . . . [i]n the case of a person, circumstances, including self-identification, show the person answering to be the one called....” See Ga. L. 2011, p. 99, § 2/H.B. 24.

       The NAACP investigator became involved in the case at the behest of the mother of Jamarcus Adams based on her concerns with the manner in which law enforcement had allegedly treated witnesses.

        See Patterson, 287 Ga. App. at 102-03 (1) (holding that defendant’s identity was not authenticated in a telephone conversation, and thus conversation was inadmissible, despite the fact that defendant initiated the call to a police officer who had earlier been to his residence and had left a message with defendant’s mother for defendant to call him); Cannady v. Lamb, 146 Ga. App. 850, 851-52 (3) (247 SE2d 500) (1978) (holding that identity not authenticated in a telephone conversation in which the witness obtained the telephone number from a person’s father, and that person later confirmed that the number was correct).

        See Turner v. State, 314 Ga. App. 263, 264 (1) (724 SE2d 6) (2012) (punctuation omitted).

        Id. at 263-64 (1).

        Gresham v. State, 303 Ga. App. 682, 688 (3) (695 SE2d73) (2010) (punctuation omitted).

        See Lee v. State, 281 Ga. 776, 777-78 (3) (642 SE2d 835) (2007) (holding that the trial court’s instruction that the jury was the arbiter of witness credibility and that it should give consideration to motives, adequately covered possible motive or bias of State’s witnesses); Windhom v. State, 315 Ga. App. 855, 861 (3) (b) (729 SE2d 25) (2012) (holding that court’s charge on credibility of witnesses adequately covered principles in defendant’s requested charge on motive).

        See Windhom, 315 Ga. App. at 861 (3) (c) (holding that trial court’s instruction on mere presence, parties to a crime, knowledge of a crime, guilt by mere association, and grave suspicion substantially and adequately covered the principles in defendant’s requested aiding and abetting charge).

        Daniels v. State, 306 Ga. App. 577, 584 (5) (703 SE2d 41) (2010) (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        See Lankford v. State, 295 Ga. App. 590, 592 (1) (672 SE2d 534) (2009) (holding that trial court did not err in denying defendant’s motion to sever when number of defendants was sufficiently small as to minimize the danger of confusion, and all defendants were charged with jointly participating in the same offenses).

       Neither Jones nor Iwo testified in his ownhehalf at trial. Nevertheless, the focus of their respective defenses, as indicated hy the testimony of several of the defense witnesses, was that while they may have been in the vicinity of the nightclub, they were not involved in the shooting.

        See Daniels, 306 Ga. App. at 585 (5) (noting that defendants’ defenses were not antagonistic when one claimed to have been dropped off before the car-jacking occurred, and the other claimed to have been asleep in another co-defendant’s vehicle at the time and, thus, was unaware that a crime had occurred).

        Id. (punctuation omitted).


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A12A1054.
    WILSON v. THE STATE.
    (733 SE2d 345)
   MILLER, Presiding Judge.

Following a jury trial, Charlton Wilson was convicted of burglary (OCGA § 16-7-1 (a) (2007)), armed robbery (OCGA § 16-8-41 (a)), possession of a firearm during the commission of a felony (OCGA § 16-11-106 (b)), and kidnapping (OCGA § 16-5-40 (a) (2007)). The trial court denied Wilson’s motion for a new trial, as amended. On appeal, Wilson contends that the evidence was insufficient to sustain his kidnapping conviction, and that the trial court erred in charging the jury that the “slightest movement” was sufficient to prove the element of asportation for the kidnapping offense. We agree that the evidence was insufficient to support the kidnapping conviction, and therefore, we must reverse on this ground.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation omitted.) Williams v. State, 304 Ga.App. 787 (697 SE2d 911) (2010).

So viewed, the trial evidence shows that Wilson and his accomplices, Charles Washington and Yauncy Daise, developed a plan to burglarize the victim’s residence in Chatham County, believing that drugs and money were present inside the residence. For approximately one week prior to the incident, Wilson and his accomplices secretly observed the residence during the morning hours to determine the victim’s routine and the times that she left the residence.

On the morning of April 23, 2007, Wilson and Daise made the unauthorized entry into the victim’s residence, while Washington remained outside to serve as a lookout. Although no one was inside the residence when Wilson and Daise made entry, the victim unexpectedly returned to the residence while the burglary was in progress. When the victim entered the residence, Wilson approached her, pointed a gun in her face, and forced her to lie on the floor. Wilson then tied the victim’s arms and legs, and covered her eyes with duct tape. Wilson threatened to kill the victim, and demanded that she tell them where the purported drugs and money were hidden. Daise kept watch over the victim, while Wilson ransacked the residence. Although Wilson was unable to find any drugs and money, he stole the victim’s credit cards, debit cards, and identification cards from her purse.

Upon stealing the victim’s property, Wilson and his accomplices fled from the residence and drove away in Wilson’s car. The victim removed the duct tape and ran to a neighbor’s house to call police. The victim’s neighbor gave the responding officers a description of Wilson’s car, which she had previously observed parked near the victim’s residence at the time of the incident and on the prior mornings when Wilson and his accomplices had been observing the residence.

Shortly thereafter, officers stopped Wilson’s car, which matched the description conveyed on the dispatch lookout call. Wilson was driving the car, and Washington and Daise were passengers. Following the stop, the officers recovered the victim’s stolen property from Wilson’s car. In addition, the officers recovered a roll of duct tape; a gun; cigars that the victim had reportedly smelled during the incident; bandanas; shoes; and clothing that Wilson and Daise wore during the incident.

Wilson and his accomplices were arrested and jointly charged with multiple crimes based upon the incident. After being advised of his Miranda rights, Wilson agreed to an interview with the detectives. Although Wilson initially denied being at the victim’s residence, he later admitted that he had participated in the burglary. Wilson, however, denied that he had a gun and had committed the armed robbery.

Wilson’s co-defendant Daise testified as a witness for the State at trial. Daise’s testimony conveyed details regarding Wilson’s participation in the planning and execution of the crimes against the victim. At the conclusion of the trial, the jury returned a verdict finding Wilson guilty of the charged crimes.

On appeal, Wilson solely challenges his conviction of the kidnapping offense. “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” OCGA § 16-5-40 (a) (2007) . The element of “abducting or stealing away” the victim is known as asportation, which is established by proof of movement of the victim. See Garza v. State, 284 Ga. 696, 697 (1) (670 SE2d 73) (2008) . We agree that the evidence failed to establish the element of asportation under the standard set forth in Garza, supra, 284 Ga. at 702 (1), and thus, Wilson’s kidnapping conviction must be reversed.

In 2008, [the Supreme Court of Georgia] overruled prior law regarding the need for only slight movement to satisfy the asportation element of kidnapping and set out four factors to determine whether the asportation element was met: (1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense. Garza, supra, 284 Ga. at 702 (1).

(Citation and punctuation omitted.) Hammond v. State, 289 Ga. 142, 143 (710 SE2d 124) (2011). Although Wilson’s acts and conviction occurred prior to the issuance of the Garza decision, the rule established in Garza must be retroactively applied. See id. at 144 (1) (ruling that the Garza rule was a substantive change in case law and should be retroactively applied); see also Goolsby v. State, 311 Ga. App. 650, 653 (1) (a) (718 SE2d 9) (2011) (since the defendant’s case was on direct review and not yet final when Garza was decided, it was in the pipeline so that the Garza test applied in determining whether the victim’s movement was sufficient to establish asportation).

Applying the Garza factors in this case, it is clear the victim’s movement did not constitute the necessary asportation to support a kidnapping conviction. Notably, the victim’s movement in this case is substantially similar to that in Garza, supra, 284 Ga. at 696, where the defendant threatened the victim with a handgun, caused the victim to fall to the floor, and bound the victim’s wrists and ankles to prevent her from moving or escaping. Applying the factors to those circumstances, the Supreme Court of Georgia held that the victim’s movements were insufficient to establish the element of asportation. Id. at 703 (2). The Court ruled that the victim’s fall to the floor and the act of rising to sit in the chair where she was bound were of minimal duration and occurred during the course of the false imprisonment crime. Id. at 703 (2). The Court further ruled that the victim’s movements did not significantly increase the dangers to her over those that she already faced as a victim of the false imprisonment crime. Id. at 704 (2).

There is no basis for distinguishing the movement that occurred in Garza from the movement in this case. Here, as in Garza, the act of forcing the victim from a standing position to lying on the floor was merely a positional change of minimal duration. This positional change occurred while the burglary and armed robbery crimes were in progress and were incidental to those crimes. The positional change did not significantly increase the dangers over those that the victim already faced during the commission of the burglary and armed robbery crimes. Consequently, the element of asportation necessary for kidnapping was not established under the circumstances in this case. See Garza, supra, 284 Ga. at 703-704 (2) (the act of forcing the victim to fall on the floor from a standing position did not constitute asportation within the meaning contemplated by the kidnapping statute); Rayshad v. State, 295 Ga. App. 29, 33-34 (1) (b) (670 SE2d 849) (2008) (same); see also Williams, supra, 304 Ga. App. at 789-790 (1) (the evidence of asportation did not support the kidnapping conviction since the movement of the victim from the office to the floor of the bank’s main lobby was for the purpose of confining the victim during the conduct of the armed robbery and was an inherent part of the armed robbery).

Decided October 16, 2012.

Steven L. Sparger, for appellant.

Larry Chisolm, District Attorney, Thomas M. Cerbone, Assistant District Attorney, for appellee.

Judgment reversed.

Ray and Branch, JJ., concur.

       In light of our reversal of Wilson’s kidnapping conviction based upon the insufficiency of the evidence, we need not address Wilson’s claim as to the erroneous jury charge on the element of asportation.

       We note that in 2009, subsequent to Garza, the legislature amended the kidnapping statute. See Ga. L. 2009, p. 331, § 1/HB 575; Hammond, supra, 289 Ga. at 143. The legislature specified that the amendment applies to crimes committed on or after July 1, 2009, and thus, the amendment is inapplicable here; rather, the Garza standard applies in this case. See Brown v. State, 288 Ga. 902, 905 (3), n. 2 (708 SE2d 294) (2011); Dixon v. State, 300 Ga. App. 183, 184 (1), n. 3 (684 SE2d 679) (2009).

       We reject the State’s argument that no separate offense was being committed at the time of the victim’s movement. To the contrary, the undisputed evidence established that the burglary and armed robbery offenses were still in progress and had not been completed when the victim was forced to the floor. The evidence showed that the incident did not terminate until later, after Wilson and his co-defendant had searched for and taken the victim’s property. Cf. Henderson v. State, 285 Ga. 240, 245 (5) (675 SE2d 28) (2009) (defendant’s kidnapping convictions were authorized since the movement of the victims from one room to another occurred after the armed robbery had been completed and it created an additional danger to the victims); Dixon, supra, 300 Ga. App. at 184-185 (1) (the element of asportation for kidnapping was met, since the defendant had taken the money from the cash registers and had completed the robbery before he forced the victim outside of the restaurant to the back of the building and warned her not to tell anyone what had occurred).


author: Andrews, Judge.

text:
    A12A1111.
    COWETA COUNTY et al. v. COOPER et al.
    (733 SE2d 348)
   Andrews, Judge.

Errica Cooper, individually, and on behalf of her minor child, Jordan Cooper, sued Coweta County (“the County”) and Larry Clifton for injuries allegedly suffered by Cooper and her child when the vehicle in which they were traveling was struck from the rear by a county vehicle driven by Clifton. The County and Clifton answered and raised the defense that the Coopers’ claims are barred by the failure to present the claims to the County within 12 months after they accrued as required by OCGA § 36-11-1. The County and Clifton appeal claiming that the trial court erred by denying their motion for summary judgment on the basis of this defense. For the following reasons, we affirm in part and reverse in part.

Under OCGA § 36-11-1,

[a]ll 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.

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. OCGA § 36-11-1; Burton v. DeKalb County, 202 Ga. App. 676, 677-678 (415 SE2d 647) (1992); Pearson v. Newton County, 119 Ga. 863 (47 SE 180) (1904); Cobb v. Bd. of Commrs. &c., 151 Ga. App. 472, 473 (260 SE2d 496) (1979). The plaintiff has the burden of proving substantial compliance with the statute. Burton, 202 Ga. App. at 678. The basis for the County’s motion for summary judgment was that the OCGA § 36-11-1 notice was sent to a private law firm used by the County as outside legal counsel, and that this was not sufficient to comply with the statutory requirement that the claims be presented to the County.

The claims against the County brought by Cooper and her minor child accrued on February 5, 2009, the date of the vehicular accident. Their suit against the County and Clifton was filed on January 13, 2011, after the expiration of the 12-month period in OCGA § 36-11-1. But on March 4, 2009, within the 12-month statutory period, Cooper, for herself and on behalf of her minor child, sent a letter by certified mail addressed to “County Attorney’s Office” at 10 Brown Street, Newnan, Georgia to the attention of Jerry Ann Conner as “Coweta County Attorney.” The letter described the accident and the claims by Cooper and her minor child and stated that it was sent to present and give notice ofthe claims pursuant to OCGA § 36-11-1. The record does not show whether Conner was located at that address, whether she was an attorney, or if she was the county attorney. A person at the 10 Brown Street address other than Conner signed for and accepted the certified letter. It is undisputed that 10 Brown Street in Newnan is the address of the law firm of Glover & Davis, P.A. According to an affidavit provided by Nathan T. Lee, a Glover & Davis partner, Glover & Davis is a law firm independent of Coweta County; the firm serves as the county attorney for Coweta County, which is a client of the firm; but the firm does not have authority to accept notices given pursuant to OCGA § 36-11-1 unless express permission has been granted by the county administrator. There is no evidence that any such permission was given in this case. Testimony at the hearing on the motion by an employee for Cooper’s attorney showed that the employee telephoned the office of the county board of commissioners to find out where to send notice to the County pursuant to OCGA § 36-11-1. According to the employee, an unidentified person answered the phone; told her to send the notice to the county attorney; and gave the Glover & Davis mailing address without identifying any particular person. Cooper’s attorney stated at the hearing that “when we contacted the firm, we were told that they were the ones that — one of the partners or associates that told her that. That’s how we based it.” Noting the absence of any denial that Conner was the county attorney, the trial court ruled that Conner and Lee worked together at Glover & Davis as attorneys for the County; that a county employee told Cooper’s attorney to send the OCGA § 36-11-1 notice to Glover & Davis; and that, based on these facts, sending the notice to Conner at Glover & Davis was substantial compliance with the notice requirement in OCGA § 36-11-1.

The trial court erred by ruling that this was substantial compliance with the requirement that the County be presented with written notice of claims under OCGA § 36-11-1. In general, presentation of notice under OCGA § 36-11-1 is sufficient when given to a county attorney employed in-house by a county, or any department or official of a county. Burton, 202 Ga. App. at 677-678. The record shows that Glover & Davis is a private law firm hired by the County to represent the County as outside legal counsel. Neither the firm nor its partners or employees can be considered the County’s legal department, in-house county attorney, county official, or other department of the County. There is no evidence that the firm was authorized to act as the County’s agent to accept notices presented pursuant to OCGA § 36-11-1. Even assuming that a person who answered the phone in the county board of commissioners’ office directed Cooper to send the OCGA § 36-11-1 notice to Glover & Davis, nothing shows that Glover & Davis was authorized by the County to accept the notice for the County, and the county employee who gave this direction had no authority to waive the notice requirements of OCGA § 36-11-1. See City of LaGrange v. USAA Ins. Co., 211 Ga. App. 19, 20-21 (438 SE2d 137) (1993).

The statutory requirements for ante litem notice to the governing authority of the [county] generally may not be waived by the [county] or by an individual, even if that individual is the official directly responsible for the injury or for claims adjustment. To allow waiver by an individual of the legal requirements established for the benefit of the [county] completely obverts the statute and creates new issues and new dangers. What might be verbally agreed to by an individual in governing capacity may not be subject to proof if that individual becomes incapacitated or dies. The official might even deny having made a waiver. An individual may not verbally waive for the [county] what the law requires to be done in writing.

Id. at 21. Moreover, the County cannot be estopped as the result of an ultra vires act by an employee. Id.

It follows that there is an absence of evidence in the record to prove that written notice was presented to the County within 12 months after the claims accrued as set forth in OCGA § 36-11-1. To the extent the suit asserted a claim on behalf of Errica Cooper, individually, seeking to hold the County vicariously liable for the negligence of its employee, Clinton, the suit was barred by the failure to comply with OCGA § 36-11-1, and the trial court erred by refusing to grant summary judgment to the County. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). By its terms, however, OCGA § 36-11-1 protects only the County’s purse and does not bar claims against the County’s agents or employees sought to be held personally liable. Strickland v. Wilson, 205 Ga. App. 91, 93 (421 SE2d 94) (1992). To the extent the suit may be construed to assert a claim against Clinton for personal liability, it was not a suit against the County, and the trial court correctly denied the County’s motion for summary judgment based on OCGA § 36-11-1. Finally, as set forth above, OCGA § 36-11-1 provides that

[a]ll 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.) The County does not dispute that Cooper brought the suit, not only individually, but also on behalf of her minor child, who was allegedly injured in the accident. The period under OCGA § 36-11-1 for presenting the child’s claim to the County was tolled so that it expires 12 months after the date on which the disability of minority is removed by the child’s attainment of the age of lawful majority. See Barnum v. Martin, 135 Ga. App. 712, 715-716 (219 SE2d 341) (1975); OCGA § 9-3-90 (a). Although the record does not reflect the child’s age, the County did not move for summary judgment on the basis that Cooper’s child had attained the age of majority or that the period of time for the child to give the required notice under OCGA § 36-11-1 had expired. Accordingly, we find no error in the trial court’s denial of summary judgment in favor of the County on the claim brought on behalf of the child.

Decided October 16, 2012.

Hall, Booth, Smith & Slover, Joshua J. Campbell, Kenneth D. Jones, for appellant.

Shur. McDuffie & Morgan, Darrell T. Carver, Richard D. Hobbs, Kelli M. Bailey, for appellee.

Judgment affirmed in part and reversed in part.

Doyle, P. J., and Boggs, J., concur.

       Although the County initially filed a motion to dismiss for failure to state a claim, when the trial court considered matters outside the pleadings, the motion to dismiss was converted to one for summary judgment pursuant to OCGA § 9-11-56. Davis v. Phoebe Putney Health Systems, 280 Ga. App. 505, 507 (634 SE2d 452) (2006). The Coopers, in effect, requested that the motion he converted to a motion for summary judgment by submitting evidence, and the County and Clifton concede on appeal that the motion was properly treated as one for summary judgment. Id. Thus all the parties acquiesced in the treatment of the motion to dismiss as one for summary judgment, no party was prejudiced, and the right to receive notice from the court as to the nature of the motion and opportunity to respond was waived. Id. at 507-508.


text:
    A12A1254.
    CHALK v. THE STATE.
    (733 SE2d 351)
   MILLER, Presiding Judge.

Following a jury trial, Michael Chalk was convicted of child molestation (OCGA § 16-6-4 (a) (1)) and public indecency (OCGA § 16-6-8 (a) (2)). Chalk filed a motion for new trial, which the trial court denied. Chalk appeals, contending that his trial counsel was ineffective, and that the unreasonable delay in preparation of the transcript was a violation of his due process rights. We discern no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.

(Citations and punctuation omitted.) Damerow v. State, 310 Ga. App. 530, 531 (714 SE2d 82) (2011).

So viewed, the evidence shows that in September 2005, P. B., who was then nine years old, was riding her scooter by Chalk’s house when she heard a tapping noise. When P. B. looked in the direction of Chalk’s house, she saw him standing naked and masturbating in front of the window. P. B. ran home to tell her mother.

Several weeks later, on October 7, 2005, P. B.’s five-year-old brother, D. B., was walking home from school when Chalk called out, “Hey, little boy.” D. B. looked over in the direction of Chalk’s house. D. B. saw the front door open to Chalk’s house and observed Chalk naked on the floor and masturbating. D. B. ran home to tell his mother, and the mother later reported the incident to the police.

That same afternoon, another victim, who was then 20 years old, was visiting Chalk’s neighbor. The victim heard someone whistling and thought her friend was trying to get her attention. The victim looked around and saw Chalk standing naked in front of his window and masturbating. The victim ran inside the house to tell her friend about the incident. The two women looked out the window and saw a naked Chalk wiping the inside of his window with a towel. The police were later notified. Chalk was subsequently arrested, charged, and convicted of two counts of child molestation and one count of public indecency.

1. Chalk contends that his trial counsel was ineffective in several respects.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [See] Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citations and punctuation omitted.) Bridges v. State, 286 Ga. 535, 537 (1) (690 SE2d 136) (2010). Applying these standards, we turn to address Chalk’s claims.

(a) Chalk contends that the evidence showed that the date alleged in Count 2 was erroneous, and that trial counsel was ineffective by failing to file a special demurrer to challenge the erroneous date alleged. We disagree.

Since “a defendant can be re-indicted after the grant of a special demurrer, a failure to file such a demurrer generally will not support a finding of ineffective assistance of counsel.” (Citations and punctuation omitted.) Lewis v. State, 304 Ga. App. 831, 837 (5) (698 SE2d 365) (2010).

To succeed on his ineffective assistance claim, [Chalk] was required to show that his trial counsel’s failure to specially demur materially impacted his ability to present a defense, thereby creating a reasonable probability that counsel’s deficiency changed the outcome of the case.

(Citation and punctuation omitted.) Id.

Here, Count 2 of the indictment charged that the offense of child molestation against P. B. occurred “on or about October 7, 2005,” and did not specifically allege that the date of the offense was material. For this reason, the date alleged was not a material element to be proven with specificity by the State. See Robbins v. State, 290 Ga. App. 323, 329 (4) (a), n. 17 (659 SE2d 628) (2008). At the motion for new trial hearing, trial counsel testified that the State would present evidence at trial that the offense against P. B. occurred either two weeks or two months prior to October 7,2005. Trial counsel confirmed that he did not ask Chalk about a defense to challenge P. B.’s trial testimony that the offense occurred in September 2005. Although Chalk asserts that he had an “alibi-type defense” for the offenses that occurred on October 7, 2005, he did not proffer any evidence showing that he had a possible defense for the offense against P. B. that transpired in September 2005. Consequently, Chalk has failed to demonstrate that he was surprised or unable to present a defense due to the wrong date in the indictment; therefore, his claim of ineffective assistance of counsel on this ground affords no basis for reversal. See Lewis, supra, 304 Ga. App. at 837-838 (5).

(b) Chalk next contends that his trial counsel was deficient by failing to depose his father, a “potential alibi-type” witness who died prior to trial. We disagree.

At Chalk’s trial, Chalk’s mother testified that prior to his death from cancer in November 2007, Chalk’s father, Jay Chalk, was interviewed by police officers regarding Chalk’s activities on October 7, 2005. According to Chalk’s mother, Jay Chalk had told police officers that he and Chalk were at home together on October 7,2005, and that the two watched a movie that started at approximately 2:30 p.m. Chalk testified that the movie he and his father watched together ended at approximately 4:30 p.m., and that his father soon left for work afterward.

At the motion for new trial hearing, trial counsel testified that he was made aware in the summer of 2007 that Jay Chalk had been diagnosed with cancer. Jay Chalk’s illness progressed quickly, as he became verbally unresponsive and was admitted to the hospital in September 2007 before passing away in November 2007. Although trial counsel had always intended to call Jay Chalk as a trial witness, trial counsel stated that he elected not to depose Jay Chalk based on trial strategy. Trial counsel explained that given Jay Chalk’s condition, he believed he could not adequately prepare Jay Chalk for a deposition, and that he did not want to give the State the opportunity to cross-examine Jay Chalk since portions of his testimony would not be beneficial to the defense. Counsel’s decision not to depose Jay Chalk under the circumstances was a reasonable strategy and did not constitute ineffective assistance of counsel. Cf. Polite v. State, 273 Ga. App. 235, 240 (5) (614 SE2d 849) (2005) (trial counsel was not ineffective for deciding not to call a potential witness who would have revealed unfavorable information about the defendant).

(c) Chalk also contends that his trial counsel was ineffective for failing to move to dismiss the indictment based on the State’s violation of his Sixth Amendment right to a speedy trial. We disagree.

To prevail on a claim of ineffective assistance of counsel for failing to file a motion to dismiss on speedy trial grounds, Chalk must show that the motion would have been granted had it been filed. See Stanford v. State, 288 Ga. App. 463, 467 (1) (e) (654 SE2d 173) (2007). When considering a motion to dismiss on speedy trial grounds, the trial court must conduct a two-part test as set forth in the United States Supreme Court decisions in Barker v. Wingo, 407 U. S. 514, 530 (92 SC 2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U. S. 647, 651-652 (112 SC 2686, 120 LE2d 520) (1992). See Stewart v. State, 310 Ga. App. 551, 552-553 (713 SE2d 708) (2011). First, the trial court must determine whether the interval from the defendant’s arrest, indictment, or other formal accusation to trial is sufficiently long to be considered “presumptively prejudicial.” (Citations omitted.) Stewart, supra, 310 Ga. App. at 552. If the delay is presumptively prejudicial, the trial court must determine whether the defendant has been deprived of his right to a speedy trial by analyzing a four-part balancing test that considers (1) the length of the delay, (2) the reason for the delay, (3) the assertion of the defendant of his right to a speedy trial, and (4) prejudice to the defendant. Stewart, 310 Ga. App. at 553; see also Stanford, supra, 288 Ga. App. at 467 (1) (e).

(i) Presumptive prejudice. “Speedy trial rights attach at the time of arrest or formal indictment, whichever is earlier.” (Citation and punctuation omitted.) Stewart, supra, 310 Ga. App. at 553 (1). Here, Chalk was arrested in October 2005, and went to trial in October 2008. The three-year delay was presumptively prejudicial. See Ditman v. State, 301 Ga. App. 187, 189-190 (1) (687 SE2d 155) (2009) (a pretrial delay exceeding 12 months is presumptively prejudicial).

(ii) Length of the delay. The 36-month pretrial delay in this case was uncommonly long, and is a factor weighed against the State. See Ditman, supra, 301 Ga. App. at 190 (2) (a).

(iii) Reasons for the delay. The record reveals that the delay from Chalk’s arrest in October 2005 to his indictment in February 2007 — a period of 16 months—was caused by the State’s delay in performing DNA tests on various pieces of evidence. As for the remaining 20 months of delay, the case first appeared on the trial calendar in May 2007, but a continuance was granted at Chalk’s request. The record does not show when the case appeared on the trial calendar after May 2007. At the motion for new trial hearing, trial counsel stated that he had asked for several continuances for various reasons. Trial counsel also indicated that the State had requested one continuance, and that there were times when the case appeared on the trial calendar but was not reached. “[Wjhen there is no apparent reason for a delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial.” (Punctuation and footnote omitted.) Johnson v. State, 313 Ga. App. 895, 901 (2) (b) (723 SE2d 100) (2011). Since the State was responsible for the 16-month delay leading up to the indictment, and Chalk contributed to the remaining 20-month delay based on his many motions for continuances, we conclude that the State and Chalk were both responsible for the pretrial delay. Where both parties are to blame for the delay, the second Barker-Doggett factor remains neutral. See Robinson v. State, 287 Ga. 265, 267-268 (1) (b) (695 SE2d 201) (2010).

(iv) Assertion of the right. Trial counsel testified that while Chalk was anxious about the length of the delay, Chalk never requested a speedy trial and did not object to the continuances requested by trial counsel. Chalk’s failure to assert a speedy trial claim is weighed against him. See Nealy v. State, 246 Ga. App. 752, 754 (3) (542 SE2d 521) (2000) (holding that defendant’s delay in asserting speedy trial claim was weighed against him).

(v) Prejudice to Chalk’s defense. Chalk asserts that he was prejudiced by the delay since his father was no longer available to testify at his trial. However, as discussed above in Division 1 (b), Jay Chalk’s statements that were favorable to the defense were introduced into evidence through Chalk’s mother’s testimony, and Chalk provided no further details about his father’s anticipated testimony or how that testimony would have been favorable to Chalk. See State v. Porter, 288 Ga. 524, 530 (2) (c) (4) (705 SE2d 636) (2011); Christian v. State, 281 Ga. 474, 478 (2) (640 SE2d 21) (2007). Moreover, trial counsel testified that he believed the longer the delay, the more it damaged the State’s case, and the more it benefited Chalk’s defense. See Jenkins v. State, 282 Ga. App. 55, 56 (637 SE2d 785) (2006) (noting that pretrial delay often works to a defendant’s advantage).

Balancing the pertinent Barker-Doggett factors, Chalk has failed to establish that the 36-month delay violated his constitutional right to a speedy trial. Therefore, even if trial counsel was deficient for failing to raise the speedy trial claim, Chalk cannot demonstrate that this failure prejudiced his defense, and his ineffective assistance claim on this ground fails. See Nealy, supra, 246 Ga. App. at 755 (3).

2. Chalk contends that the unreasonable delay in the preparation of the transcripts violated his due process rights. There is no merit in his contention.

The similarity of a defendant’s interests in a speedy trial and a speedy appeal are such that the balancing test adopted for speedy trial violations in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), should be applied to situations in which a defendant claims that a delay in the appellate process is violative of due process of law. The four factors enunciated in Barker v. Wingo . . . are the length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.

(Citation, punctuation and footnote omitted.) Smith v. State, 274 Ga. App. 568, 572 (4) (618 SE2d 182) (2005); Graham v. State, 171 Ga. App. 242, 250-251 (7) (319 SE2d 484) (1984).

Here, the record shows that the total delay in preparing the requested transcripts was approximately 34 months. Although such a delay is lengthy, “the mere passage of time is not enough, without more, to constitute the denial of due process.” (Citation and punctuation omitted.) Graham, supra, 171 Ga. App. at 250 (7). Since the reason for the delay is not apparent from the record, we must treat the delay as caused by the State’s negligence. See Johnson, supra, 313 Ga.App. at 901 (2) (b). Chalk did assert his right by requesting a show cause hearing to determine the reason for the delay in preparing the transcripts. Chalk waited nearly two years after his conviction in December 2008 to assert his right, and this factor is weighed against him. See Nealy, supra, 246 Ga. App. at 754 (3). As to prejudice, Chalk makes no showing that the delay in preparing the transcripts prevented him from presenting an adequate appeal or impaired a defense that would otherwise be available to him. See Glenn v. State, 279 Ga. 277, 279-280 (3) (612 SE2d 478) (2005); Graham, supra, 171 Ga. App. at 250-251 (7). Contrary to Chalk’s claim, the period of post-conviction incarceration is not, in and of itself, a violation of his due process rights. See Smith, supra, 274 Ga. App. at 572 (4); Graham, supra, 171 Ga. App. at 251 (7). Balancing the BarkerDoggett factors, Chalk has failed to show that the delay in filing of the transcripts was a violation of his due process rights. Accordingly, we affirm.

Decided October 16, 2012

Bernard S. Brody, for appellant.

Garry T. Moss, District Attorney, Robert G. Morton III, Cliff Head, Assistant District Attorneys, for appellee.

Judgment affirmed.

Ray and Branch, JJ., concur.

       The testimony of Chalk’s mother was admitted under the necessity exception to the hearsay rule. See OCGA § 24-3-1 (b); Jennings v. State, 288 Ga. 120, 121-122 (3) (702 SE2d 151) (2010).


author: BARNES, Presiding Judge.

text:
    A12A1537.
    SLOAN v. THE STATE.
    (733 SE2d 357)
   BARNES, Presiding Judge.

In May 2000, a jury convicted Carl Levert Sloan of aggravated battery, aggravated assault, battery, three counts of cruelty to children, and four counts of false imprisonment, and the trial court sentenced him as a recidivist to eighty-four years in confinement. His trial counsel moved for a new trial in June 2000, but despite Sloan’s repeated attempts to gain a ruling, the motion was not denied until more than a decade later, in May 2011. As our Supreme Court recently noted,

[w]e do not condone this inordinate delay in the motion for new trial proceedings____These delays put at risk the rights of defendants and crime victims and the validity of convictions obtained after a full trial. We therefore reiterate that it is the duty of all those involved in the criminal justice system, including trial courts and prosecutors as well as defense counsel and defendants, to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay.

Shank v. State, 290 Ga. 844, 849 (5) (c) (725 SE2d 246) (2012).

On appeal, Sloan contends that the trial court erred in denying his motion for a mistrial after a child witness placed his character into evidence. Because the trial court gave appropriate curative instructions and did not abuse its discretion in denying the motion for mistrial, we affirm.

The evidence at trial showed that Sloan became angry at his girlfriend one night and woke her up, “fussing and cussing” at her for allegedly seeing another man. He removed his belt and beat her with it, slapped her face, and wrapped the belt tightly around her neck, choking her and threatening to kill her. Sloan finally allowed the victim to go to work, where she made an outcry. In addition to multiple bruises and scratches, the victim’s index finger was broken in two places, and the next day, she went to an emergency room for examination and treatment. Due to the nature of the victim’s injuries, several law enforcement officers came to the emergency room and talked to the victim, who would not name Sloan as her assailant because she feared “[h]e would go to jail and get out, and [she] didn’t know what was going to happen after that.” The victim took out a warrant against Sloan the next day, obtained a temporary protective order, and changed her locks.

In the early hours of December 24, 1999, Sloan returned to the victim’s residence and pushed his way in while holding a 22-ounce beer bottle. He grabbed the victim by her ponytail, dragged her into her bedroom, and began slapping her. During the assault, the victim’s three children, who were ages four, eight, and nine as of the trial, came into the hallway, and Sloan ordered them to sit on the bed by their mother, who was crying. Sloan continued cursing at the victim, smashed the beer bottle on the television, and used the broken bottle to cut the victim’s arm and leg. The children were “hollering and crying,” and the four-year-old told Sloan to stop hitting his mother. Sloan told him to “shut the f*** up” and slapped him. When the victim’s daughter told Sloan to stop hitting her mother, he replied, ‘Tour mama is a mother-f***ing whore” and began to spit on the mother. The mother quietly encouraged her daughter to leave the house and get help from her great-grandmother, who lived across the street. The great-grandmother called 911, but Sloan left the house before the police arrived.

The victim’s eight-year-old child also testified about the assault. On cross-examination, the child denied talking to the prosecutor before trial but admitted on re-direct that he had talked to her briefly. The prosecutor asked the child what she had asked him to do before the trial began, and the child responded that the prosecutor told him to tell the truth.

The victim’s nine-year-old daughter testified that Sloan told the children to come into their mother’s room so they could watch him kill her and then tell their future children about it. She confirmed that Sloan, whose nickname was “Pig,” hit her brother and cut her mother with a broken bottle. As with the prior child witness, on cross-examination Sloan asked the child about previous conversations with the prosecutor. On re-direct, the prosecutor asked, “What did I ask you to do for your testimony?” The child responded, “Never •— never talk about Pig in jail.”

Sloan objected and moved for a mistrial, arguing that the child had improperly introduced evidence of Sloan’s character. The prosecutor explained that she had anticipated the child would answer that she had been asked to tell the truth, as her brother just had, and that she had attempted to talk over the child’s response when she realized what the child was saying. The prosecutor argued that a mistrial was unnecessary and that a curative instruction that did not repeat what the child said would be sufficient. The trial court had not heard the child’s response, and after listening to a recording of the testimony several times, the court ruled that it could not determine whether the jury had heard the child without polling them, which would just reinforce the improper testimony. Considering the context of the quiet answer, the court denied the motion and instructed the jury that if anyone had heard the last response from the last witness, they were to disregard it entirely and not consider it as evidence.

Sloan does not dispute the fact that the evidence was sufficient to support the guilty verdicts. His sole claim on appeal is that the trial court committed reversible error by denying his motion for mistrial.

When prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions.

Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315) (1982). The decision “is within the trial court’s sound discretion, and the trial court’s exercise of that discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant’s right to a fair trial.” Ottis v. State, 271 Ga. 200, 201 (3) (517 SE2d 525) (1999). Here, the trial court acted immediately, ruled out the offensive testimony, and properly instructed the jury not to consider it in its deliberations. Under the facts of this case, we cannot say that this amounted to an abuse of discretion.

Decided October 16, 2012

Barbara B. Claridge, Rodney A. Quesenberry, for appellant.

R. Ashley Wright, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

Adams and McFadden, JJ., concur.


author: MILLER, Presiding Judge. Ray, Judge,

text:
    A12A1149.
    HUDSON v. THE STATE.
    (733 SE2d 360)
   MILLER, Presiding Judge.

This is the second appearance of the case before this Court. In the first appeal, Hudson v. State, 309 Ga. App. 580 (711 SE2d 95) (2011) (“Hudson I”), we vacated Claude Wayne Hudson’s sentences for the offenses of aggravated sexual battery (OCGA § 16-6-22.2 (b)) and child molestation (OCGA § 16-6-4 (a) (1)), because the trial court failed to merge the convictions, and we remanded the case for resentencing. Hudson now appeals the new sentence entered upon remand. Hudson contends that the trial court violated his due process rights by increasing his custodial sentence for child molestation because the new sentence was more severe than the original sentence. For the reasons set forth below, we reverse and remand this case again for the trial court to reconsider Hudson’s sentence.

The facts are fully set forth in Hudson I, supra, 309 Ga. App. at 580. Following a jury trial, Hudson was convicted of aggravated sexual battery and child molestation based on evidence that he had molested his niece. See id. The trial court sentenced Hudson to life on the aggravated sexual battery charge, with 25 years to serve and the remainder probated. The trial court sentenced Hudson to thirty years on the child molestation charge, with ten years to serve and the remainder probated. Id. The two sentences were to run concurrently. On appeal from those sentences, this Court held that Hudson’s conviction for aggravated sexual battery should have merged with the conviction for child molestation. Id. at 582 (2). We therefore vacated the sentences and remanded for resentencing. Id. Following remand, the trial court resentenced Hudson to thirty years on the child molestation charge, increasing the custodial term to twenty-five years, rather than ten years, and probating the remainder.

On appeal, Hudson argues that the trial court violated his due process rights under the principle articulated in North Carolina v. Pearce, 395 U. S. 711 (89 SC 2072, 23 LE2d 656) (1969), when it increased his custodial sentence on the child molestation conviction by 15 years. In Pearce, supra, 395 U. S. at 724-725 (II) (C), the Supreme Court of the United States created a presumption of vindictiveness that arises whenever a more severe sentence is imposed after a defendant has successfully attacked his sentence on appeal. The presumption of vindictiveness, however, may be overcome by objective information in the record justifying the increased sentence. See id. at 726 (II) (C). The evil sought to be prevented in Pearce is vindictiveness of a sentencing judge, rather than simply enlarged sentences upon resentencing. See Texas v. McCullough, 475 U. S. 134, 138 (II) (106 SC 976, 89 LE2d 104) (1986).

The precedents from the Supreme Court of Georgia are conflicting as to the proper methodology for determining whether a trial court’s resentencing of a defendant resulted in a more severe sentence under Pearce. In 1975, in Anthony v. Hopper, 235 Ga. 336, 337-338 (1) (219 SE2d 413) (1975), the Supreme Court of Georgia, in a unanimous decision, applied a “count-by-count” approach, which requires a court to compare the sentences on each count of an indictment separately.

In 2010, however, in Adams v. State, 287 Ga. 513, 517-520 (2) (696 SE2d 676) (2010), a plurality of the Supreme Court of Georgia criticized the count-by-count approach applied in Anthony and applied the “aggregate” approach instead. Under the aggregate approach, a court must “compare the total original sentence to the total sentence after resentencing. If the new sentence is greater than the original sentence, the new sentence is considered more severe.” (Citations and punctuation omitted.) Id. at 517 (2). The plurality in Adams noted that the aggregate approach has been adopted by “[t]he vast majority of federal and state appellate courts[.]” (Citations and punctuation omitted.) Id.

Here, the severity of Hudson’s new sentence, and whether the Pearce presumption of vindictiveness arises, depends on whether it is judged on a count-by-count basis or in the aggregate on all counts. Under the aggregate approach, Hudson’s new sentence was not more severe. That is, Hudson’s initial sentence on both counts would have resulted in a total of 25 years in prison and probation for the remainder of his life. After the conviction for aggravated sexual battery was merged into the conviction for child molestation, he was resentenced to a total of twenty-five years in prison and five years on probation.

Under the count-by-count approach, however, Hudson’s new sentence was more severe. Specifically, Hudson’s initial sentence on the child molestation count would have resulted in ten years in prison and twenty years on probation. Hudson was resentenced on the same count for a total of twenty-five years in prison and five years on probation. Accordingly, although the probationary period of Hudson’s sentence was less, his prison sentence was increased by 15 years.

Hudson contends that the aggregate approach in Adams is not controlling because the decision had the full concurrence of only three Justices. As such, he argues that Georgia still follows the count-by-count approach applied in Anthony. In view of the divergent rulings from the Supreme Court of Georgia, this Court, the trial court, and the State Bar are somewhat handicapped in determining which approach should be applied. Nevertheless, in the wake of only a plurality opinion in Adams, and in an abundance of caution, we conclude that Georgia still follows the count-by-count approach as applied in Anthony. Until and unless Anthony is overruled by a decision of the Supreme Court of Georgia, which is concurred in by a majority of the Justices, it remains controlling. Accordingly, when we apply the approach set forth in Anthony, Hudson’s new sentence was more severe than his original sentence on the child molestation count, giving rise to the Pearce presumption of vindictiveness.

Since the Pearce presumption of vindictiveness was triggered, the trial court was required to overcome it with affirmative reasons or facts to substantiate the new sentence. See Pearce, supra, 395 U. S. at 726 (II) (C).

Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

(Emphasis supplied.) Id. In its written resentencing order, the trial court attempted to dispel the presumption of vindictiveness by stating that the same term of confinement as the original sentence was intended not only to deter Hudson from engaging in the same type of sexual misconduct upon release, but also primarily to punish Hudson for his offense. The trial court also cited the victim’s age, Hudson’s familial relationship with the victim, and Hudson’s prior child molestation offense as aggravating circumstances justifying the new sentence. However, Pearce requires the reasons for the new sentence to be based upon identifiable conduct occurring after the time of the original sentencing proceeding. See id. And here, the circumstances cited by the trial court are the same as those that previously existed at the first sentencing proceeding, and thus provided no basis for an increased sentence on the child molestation charge upon remand. Therefore, the case is remanded for reconsideration of Hudson’s sentence so that it conforms with the law established by Pearce and its progeny.

Judgment reversed and case remanded.

Ray and Branch, JJ., concur fully and specially.

Ray, Judge,

concurring fully and specially.

Although I concur fully in the majority’s determination that Anthony v. Hopper’s count-by-count approach remains binding precedent, and that because of this, the North Carolina v. Pearce presumption of vindictiveness has been triggered, I write specially to re-emphasize the problems associated with the count-by-count approach, as eloquently discussed by Judge Bernes in Blake v. State. Judge Bernes’ special concurrence in that case advocated for a presumption of vindictiveness that applies only when there is a “real likelihood of actual vindictiveness by the trial judge.” Judge Bernes noted that a majority of federal circuit courts of appeal applying the Pearce presumption, as well as some state appellate courts, have declined to use the count-by-count approach and have instead adopted some form of the aggregate approach. I believe Georgia should follow suit.

We already have considered the aggregate approach outside the context of the Adams v. State plurality. In Alvarado v. State and Duffey v. State, we applied such an approach when concurrent sentences were made consecutive at resentencing, recognizing that when trial judges impose sentences stemming from the same underlying unlawful conduct, their intent in fashioning those sentences is based on a holistic analysis of the multi-count convictions before them.

In the instant case, the acts for which Hudson was convicted as a recidivist arose from the same events — Hudson’s sexual molestation of his very young niece. The trial court in its initial sentence clearly attempted to effectuate a broad conception of Hudson’s culpability. The application of the Pearce presumption of vindictiveness here, via Anthony, may eviscerate that intent. This is because on remand, theoretically, Hudson’s custodial sentence could drop from twenty-five years total on the prior two counts to the original ten years assigned to the surviving child molestation count. A potential result of the Pearce presumption has been recognized by Justice Hugo Black, who noted that “the Court’s opinion [in Pearce] may hereafter cause judges to impose heavier sentences on defendants in order to preserve their lawfully authorized discretion should defendants win reversals of their original convictions.”

Federal courts adopting the aggregate method have recognized that “[b]ecause the sentences are interdependent, the reversal of convictions underlying some, but not all, of the sentences renders the sentencing package ineffective in carrying out the . . . court’s sentencing intent as to any one of the sentences on the affirmed convictions.” Therefore,

Decided October 17, 2012

Mark A. Begnaud, for appellant.

Lee Darragh, District Attorney, Lindsay H. Burton, Assistant District Attorney, for appellee.

the aggregate approach best reflects the realities faced by... judges who sentence a defendant on related counts of an indictment. Sentencing is a fact-sensitive exercise that requires ... judges to consider a wide array of factors when putting together a “sentencing package.” When an appellate court subsequently reverses a conviction... that was part of the original sentence, the . . . court’s job on remand is to reconsider the entirety of the (now-changed) circumstances and fashion a sentence that fits the crime and the criminal.

Although Georgia does not have per se sentencing packages, it would be disingenuous to say trial judges do not consider related counts in crafting sentences; it would be ludicrous to say that upon remand they should not consider the “entirety of the (now-changed) circumstances.” For the foregoing reasons, I respectfully suggest that our Supreme Court consider adopting some version of the aggregate approach.

I am authorized to state that Judge Branch joins in this opinion.

       The State incorrectly cites Johnson v. State, 307 Ga. App. 499, 500-501 (705 SE2d 303) (2010), as having applied the aggregate approach rather than the count-by-count approach. Contrary to the State’s assertion, this Court in Johnson, supra, 307 Ga. App. at 500, was not required to make a decision as between the two approaches, because the defendant’s new sentence was not harsher either by count or in the aggregate. Therefore, regardless of the approach utilized, the Pearce presumption did not apply in Johnson.

       See, e.g., Blake v. State, 272 Ga. App. 402, 403-404 (1), 406 (612 SE2d 589) (2005) (concluding that the binding precedent of Anthony controlled the methodology and outcome of the case and applying count-by-count approach) (physical precedent only); see also Thompson v. Thompson, 288 Ga. 4, 5 (1), n. 2 (700 SE2d 569) (2010) (“[Where Supreme Court of Georgia case] purported] to overrule the long-standing line of cases, it d[id] not achieve that goal because only a plurality, not a majority, of th[e] [Supreme] Court ha[d] determined that those cases must ‘give way.’ Thus, the bench and bar [were] apprised that [a prior majority opinion of the Supreme Court] and all of the other cases which applied] [that same legal analysis] . . . remained] controlling authority for the present and that the holdings in those cases [were to] be followed as accurate statements of the applicable law.”) (citation and punctuation omitted).

       235 Ga. 336, 337-338 (1) (219 SE2d 413) (1975).

       395 U. S. 711, 724-725 (II) (C) (89 SC 2072, 23 LE2d 656) (1969).

       272 Ga. App. 402, 406-410 (612 SE2d 589) (2005).

       (Citation omitted.) Blake, supra at 408. See Alabama v. Smith, 490 U. S. 794, 799 (109 SC 2201, 104 LE2d 865) (1989) (where no reasonable likelihood of vindictiveness exists, defendant bears burden of showing actual vindictiveness).

       Id. at 408-409 (providing a comprehensive list of relevant cases in federal circuit courts of appeal and state appellate courts). See also Adams v. State, 287 Ga. 513, 517 (2) (696 SE2d 676) (2010).

        Adams, supra at 516-520 (2).

       248 Ga. App. 810, 811 (1) (547 SE2d 616) (2001) (trial court “plainly intended to sentence the defendant to a certain amount of time for his conduct”).

       222 Ga. App. 802, 803-804 (1), (2) (476 SE2d 89) (1996) (trial court “plainly intended appellant to serve 30 years for his crimes against these children; the fact that two technically redundant counts were vacated does not lessen the severity of the crimes . . . and it certainly does not require the trial court to reduce appellant’s sentence for the remaining counts”) (emphasis in original).

       (Emphasis supplied.) Pearce, supra at 743 (Black, J., concurring in part and dissenting in part).

        United States v. Shue, 825 F2d 1111, 1114 (III) (A) (7th Cir. 1987).

       (Footnote omitted; emphasis supplied.) United States v. Campbell, 106 F3d 64, 68 (I) (B) (5th Cir. 1997). See also United States v. Pimienta-Redondo, 874 F2d 9,14 (II) (B) (1st Cir. 1989) (en banc) (plurality) (“common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan, and to reconstruct the sentencing architecture upon remand, within applicable constitutional and statutory limits, ... to ensure that the punishment still fits both crime and criminal”) (citations and footnote omitted).