author: Dillard, Judge.

text:
    A12A1738.
    CROSBY v. THE STATE.
    (735 SE2d 588)
   Dillard, Judge.

Following a jury trial, Jonathan Crosby was convicted on one count of burglary and one count of possession of tools for the commission of burglary. Crosby appeals his convictions and the denial of his motion for new trial, arguing that the evidence supporting his convictions was insufficient because testimony pertaining to the DNA samples that connected him to the crime constituted inadmissible hearsay and violated his right to confrontation under the Sixth Amendment to the United States Constitution. Crosby further argues that the trial court erred in denying his claim that his counsel rendered ineffective assistance and in admitting evidence of a previous conviction for impeachment purposes without making the specific findings required by statute. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on August 3, 2009, Jeanette Sapp and her sister met to go shopping and returned to Sapp’s home in Guyton, Georgia, some time after 9:00 p.m. Upon entering her home through the back door, Sapp was surprised to see a tall, unfamiliar man rummaging through the dresser drawers in her bedroom. Sapp confronted the man and asked him what he was doing, at which point the man quickly fled past her and out the back door. A few moments later, Sapp noticed that one of her bedroom windows was broken. Realizing that her home had been burglarized, she called the police.

Shortly thereafter, officers from the Effingham County Sheriff’s Department arrived on the scene and searched the area but could not locate the intruder. However, during their investigation of Sapp’s home, officers recovered a blood-stained screwdriver on top of the refrigerator after Sapp pointed it out to them and stated that it was not hers. In addition, the officers found another blood stain on the broken window in Sapp’s bedroom. Subsequently, a crime-scene technician with the sheriff’s department collected samples from both blood stains and transported them to the Georgia Bureau of Investigation’s (“GBI”) crime lab for DNA testing.

Ten months later, an investigator with the Effingham County Sheriff’s Department received a report from the GBI Forensic Sciences Division, indicating that the DNA from the collected blood samples matched Crosby’s DNA profile, which was already in CODIS due to his previous convictions. After examining a photograph of Crosby and noting that he resembled the description of the intruder provided by Sapp, the investigator obtained a warrant to arrest Crosby and collect a DNA sample from him. A week later, officers arrested Crosby, obtained a DNA sample for testing, and ultimately determined that his DNA matched the samples collected from Sapp’s broken window and the screwdriver found on top of her refrigerator.

Thereafter, Crosby was indicted on one count of burglary and one count of possession of tools for the commission of burglary. During Crosby’s trial, Sapp testified about the burglary but admitted that she could not unequivocally identify Crosby as the intruder she saw on the night in question. Additionally, several law-enforcement officers testified regarding their investigation. Included among those officers was a forensic biologist with the GBI, who testified in considerable detail regarding her review of the testing of the DNA samples collected from the scene, her own testing of the DNA samples obtained from Crosby, and the fact that these samples matched.

After the State rested, Crosby informed the trial court that he would testify in his own defense. At that point, the State requested that it be allowed to impeach Crosby, pursuant to OCGA § 24-9-84.1 (a) (2), by introducing evidence that Crosby was convicted of burglary in 1996. The court immediately heard argument on the issue from both the State and Crosby before ultimately ruling to admit the conviction solely for impeachment purposes. Subsequently, Crosby testified. In doing so, he acknowledged his past conviction but claimed his innocence as to the subject charges and stated that he did not know how his screwdriver found its way into Sapp’s home or why his blood was found on the broken bedroom window. Nevertheless, at the conclusion of his trial, the jury found Crosby guilty on both counts in the indictment.

Afterwards, Crosby obtained new counsel and filed a motion for new trial, in which he argued, inter alia, that his trial counsel rendered ineffective assistance by failing to object to the testimony about the DNA testing, which constituted hearsay and violated his right to confrontation. The trial court held a hearing on Crosby’s motion, during which Crosby’s trial counsel testified, but ultimately the court denied it. This appeal follows.

1. Crosby contends that the evidence supporting his convictions was insufficient because the testimony of the GBI forensic biologist pertaining to the DNA samples connecting him to the crime constituted inadmissible hearsay and violated his right to confrontation under the Sixth Amendment to the United States Constitution. 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. Furthermore, 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.” Consequently, 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 will now address Crosby’s specific challenge to the sufficiency of the evidence.

As previously noted, during Crosby’s trial, a GBI forensic biologist testified regarding her review of the testing of the DNA samples collected from the scene of the burglary and her own testing of the DNA samples obtained from Crosby after he was arrested. Specifically, the GBI biologist explained that the swab samples collected from the screwdriver and the broken window were initially tested by another GBI technician to confirm that the substance found on them was blood. And afterward, the samples were sent to a laboratory in Utah, which isolated the DNA from the blood and developed a DNA profile. Subsequently, the Utah lab returned the evidence and its analysis to the GBI, and the GBI biologist then reviewed the testing procedures employed, as well as the results, and uploaded the information into CODIS. The biologist further testified that once DNA samples were obtained from Crosby, she personally tested those samples and determined that they matched the DNA collected from the blood on the screwdriver and the victim’s bedroom window.

Although Crosby did not object to the GBI forensic biologist’s testimony during trial, he now contends that her testimony regarding the testing performed by the GBI technician who initially tested the blood found on the screwdriver and the window, as well as the testing performed by the Utah lab, constituted inadmissible hearsay and is without probative value. Citing Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico,* Crosby further argues that his Sixth Amendment right to confrontation was violated because neither the GBI technician nor anyone from the Utah lab testified at trial. But pretermitting whether Crosby waived review of these issues by failing to object during trial, we find his contentions unavailing.

First, it is well established that “an expert may base his opinion on data collected by others” and that his or her “lack of personal knowledge does not mandate the exclusion of the opinion but, rather, presents a jury question as to the weight which should be assigned the opinion.” And here, rather than being a mere conduit for the GBI technician and the Utah lab’s findings, the GBI forensic biologist reviewed the data and testing procedures to determine the accuracy of those findings. Thus, the GBI biologist’s testimony regarding these findings was not inadmissible hearsay. Furthermore, because the GBI biologist personally conducted much of the testing herself (reviewing and analyzing all of the testing procedures and data forming the basis of her opinion testimony at trial), she—unlike the expert in Bullcoming—was not acting as a mere surrogate for the GBI technician or the Utah lab. Rather, she had a “substantial personal connection to the scientific [tests] at issue.” Accordingly, the GBI forensic biologist’s testimony did not violate Crosby’s Sixth Amendment Confrontation Clause right.

2. Crosby also contends that the trial court erred in denying his claim that his trial counsel rendered ineffective assistance by failing to object to the GBI forensic biologist’s testimony. We disagree.

In order to prevail on his claim of ineffective assistance of counsel, Crosby must show that his trial “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.” Additionally, 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.

Similar to the contentions in his first enumeration of error, here, Crosby argues that his trial counsel rendered ineffective assistance by failing to object to the GBI biologist’s testimony on the grounds that it constituted hearsay and violated his Confrontation Clause rights. However, as we held in Division 1, supra, this testimony did not constitute inadmissible hearsay or violate Crosby’s right of confrontation. Thus, any objection to the GBI biologist’s testimony would have been lacking in merit. And as this Court has repeatedly noted, the failure to “pursue a futile objection does not amount to ineffective assistance.” Accordingly, Crosby failed to show that his trial counsel rendered ineffective assistance.

3. Crosby further contends that the trial court erred in admitting evidence of a 1996 burglary conviction for impeachment purposes without making the specific findings required by OCGA § 24-9-84.1 (a) (2). But before addressing Crosby’s specific contention, we first note that this Court will not disturb a trial.court’s determination regarding impeachment of a criminal defendant pursuant to OCGA § 24-9-84.1 (a) (2) unless the trial court has abused its discretion.

In this matter, as previously noted, after Crosby informed the trial court that he would testify in his own defense, the State requested that it be allowed to impeach Crosby, pursuant to OCGA § 24-9-84.1 (a) (2), by introducing evidence that Crosby was convicted of a burglary in 1996. Consequently, outside the presence of the jury, the trial court conducted a hearing, during which the State argued the probative value of the evidence would outweigh any potentially prejudicial effect in that it was relevant to Crosby’s credibility. Crosby objected and argued that introduction of the 1996 burglary would be “detrimental to [his] position....” Nevertheless, the trial court ruled on the record that the 1996 burglary conviction was admissible, stating “[it] would rule that [the conviction] would be admissible for purposes of impeachment and impeachment only.” And later, the court specifically instructed the jury that the conviction could only be considered for that purpose.

On appeal, Crosby argues that OCGA § 24-9-84.1 (a) (2) requires that the trial court make specific findings on the record as to whether the probative value of introducing a previous conviction as evidence outweighs the prejudicial effect of doing so and that, here, the trial court failed to make such findings. Turning to the specific code section at issue, OCGA § 24-9-84.1 (a) (2) provides:

For the purpose of attacking the credibility of a witness or of the defendant, if the defendant testifies: Evidence that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant. . . ,

In considering the extent of the statute’s requirements, we have held that “the trial court is required to make express findings when balancing the probity of a prior felony conviction against its prejudicial effect.” More recently, the Supreme Court of Georgia has held that although

a trial court must make an on-the-record finding that the probative value of admitting a prior conviction substantially outweighs its prejudicial effect, we discern no requirement in the language of OCGA § 24-9-84.1 (a) (2) that the trial court must list the specific factors it considered in ruling on the probity of convictions that are not more than ten years old.

In this case, after hearing argument from both parties as to whether the probative value of the conviction outweighed the prejudicial effect, the trial court simply stated that the conviction would be admitted for impeachment purposes without further explanation. Thus, we cannot determine whether the trial court in this case “engaged in any meaningful analysis of the relevant factors or whether the court balanced the probative value against the prejudicial effect to the accused.” Accordingly, we are constrained to find that the trial court erred.

Decided December 17, 2012.

Katherine M. Mason, for appellant.

Richard A. Mallard, District Attorney, for appellee.

However, such an error does not require a new trial if the error is harmless. And here, despite the fact that the victim could not positively identify Crosby as the intruder she saw on the night of the burglary, Crosby generally matched the description of the intruder that the victim provided to law-enforcement officers. More importantly, Crosby’s DNA matched that obtained from the blood on the screwdriver found inside the burglary victim’s home and from the blood found on the broken window in the victim’s bedroom. Given these circumstances, we find that there is no reasonable probability that the results of the trial would have differed if the evidence of Crosby’s 1996 burglary conviction had been excluded.

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

Judgment affirmed.

Phipps, P. J., concurs. Ellington, C. J., concurs in judgment only.

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

       CODIS, the Combined DNA Indexing System, is a database of DNA profiles linked among the states through the Federal Bureau of Investigation.

       SeeformerOCGA § 16-7-1 (a) (1980).The statute was significantly amendedin 2012. See Ga. L. 2012, p. 899, § 3-1.

       See OCGA § 16-7-20 (a).

        See U. S. Const, amend. VI (“In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him . . . .”).

        See Powell, 310 Ga. App. at 144.

        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).

        See Quarterman v. State, 305 Ga. App. 686, 690 (1) (a) (700 SE2d 674) (2010) (noting that hearsay testimony is not only inadmissible but wholly without probative value, and, therefore, its introduction, even without objection, does not give it any weight or force whatsoever in establishing a fact).

       557 U. S. 305, 311 (II) (129 SC 2527, 174 LE2d 314) (2009) (holding that the State’s use of a forensic laboratory report violated the Confrontation Clause when there was no live witness available for cross-examination who was competent to testify as to the truth of the statements made in the report).

       _. U. S._(II) (B) (131 SC 2705, 180 LE2d 610) (2011) (holding that “surrogate testimony” of the scientist who did not sign the certification or perform, observe, or review the testing procedures reported in the certification violates the Confrontation Clause).

        See Sanders v. State, 290 Ga. 445, 448 (3) (721 SE2d 834) (2012) (holding that failure to object to testimony on specific ground that it allegedly violated defendant’s right of confrontation waived issue on appeal).

        Dunn v. State, 292 Ga. App. 667, 671 (1) (665 SE2d 377) (2008) (punctuation omitted); see also Watkins v. State, 285 Ga. 355, 358 (2) (676 SE2d 196) (2009) (stating that “[a]n expert may base her opinions on data gathered by others”).

        See Rector v. State, 285 Ga. 714, 715-16 (4) (681 SE2d 157) (2009) (holding that toxicologist’s testimony based on other doctor’s findings was not hearsay because toxicologist reviewed the doctor’s data and testing procedures to determine their accuracy); Watkins, 285 Ga. at 358 (2) (same); Velazquez v. State, 282 Ga. 871, 875 (3) (655 SE2d 806) (2008) (“Even when an expert’s testimony is based on hearsay, the expert’s lack of personal knowledge does not mandate exclusion of the opinion but merely presents a jury question as to the weight which should be accorded the opinion.”).

        Compare Bullcoming,_U. S. at_(II) (B) (holding that “surrogate testimony” of the scientist who did not sign the certification or perform, observe, or review the testing procedures reported in the certification violates the Confrontation Clause).

        Disharoon v. State, 291 Ga. 45, 48 (727 SE2d 465) (2012).

        See Leger v. State, 291 Ga. 584, 592-93 (5) (732 SE2d 53) (2012) (holding that expert testimony regarding DNA evidence did not violate Confrontation Clause on the ground that expert did not perform all the steps in testing the DNA because expert supervised the testing, interpreted the data from the testing, and performed the ultimate analysis of the testing); Disharoon, 291 Ga. at 45 (same); Carolina v. State, 302 Ga. App. 40, 41-42 (690 SE2d 435) (2010) (holding that testimony of lab supervisor, rather than technician who tested drugs, was not inadmissible hearsay which violated Confrontation Clause because supervisor reviewed and interpreted the data prepared by technician); see also Williams v. Illinois,_U. S._, (132 SC 2221, 183 LE2d 89) (2012) (a plurality holding that the Confrontation Clause was not violated when an expert testified about her conclusions that were based upon a DNAreport prepared by a contract laboratory, which she did not supervise).

        Chapman v. State, 273 Ga. 348, 349-50 (2) (541 SE2d 634) (2001); 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).

        Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008).

       Although the subject burglary conviction occurred in 1996, it is undisputed that Crosby was not released from imprisonment for that conviction until August 31, 2007. Given that the conviction was introduced into evidence during the trial on May 20, 2011, the parties agreed that the conviction was not more than ten years old as contemplated by OCGA § 24-9-84.1 (b) (“Evidence of a conviction under subsection (a) of this Code section is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness or the defendant from the confinement imposed for that conviction, whichever is the later date. . . .”). Thus, the parties also agreed that OCGA § 24-9-84.1 (a) (2) provided the proper context for determining whether the conviction was admissible. See Clay v. State, 290 Ga. 822, 835 (3) (A) (725 SE2d 260) (2012) (holding that the date the evidence of the prior conviction was introduced constituted the end point for determining whether ten years had elapsed since defendant’s prior convictions).

        See Quiroz v. State, 291 Ga. App. 423, 429 (4) (662 SE2d 235) (2008).

       OCGA § 24-9-84.1 (a) (2).

        Lawrence v. State, 305 Ga. App. 199, 202 (3) (699 SE2d 406) (2010); see Quiroz, 291 Ga. App. at 428 (4) (holding that requiring the trial court to balance the probity of a prior felony conviction against its prejudicial effect requires that such findings be made expressly).

        Clay, 290 Ga. at 836-37 (3) (B) (citation omitted; emphasis in original).

       Quiroz, 291 Ga. App. at 428-29 (4) (punctuation omitted).

        See Lawrence, 305 Ga. App. at 202-03 (3) (holding that trial court erred in admitting defendant’s prior conviction under OCGA § 24-9-84.1 (a) (2) because it failed to apply the proper standard when it found that the conviction would be more probative than prejudicial instead of specifying whether the probative value of admitting the evidence substantially outweighs its prejudicial effect); Quiroz, 291 Ga. App. at 428-29 (4) (holding that trial court erred in admitting prior conviction under OCGA § 24-9-84.1 (a) (2) when, despite holding a hearing on the issue, trial court simply stated on the record that it would allow the evidence).

        See Lawrence, 305 Ga. App. at 203 (3) (holding that trial court’s failure to comply with requirements of OCGA § 24-9-84.1 (a) (2) was harmless given that inculpatory evidence against defendant was overwhelming).

        See Holden v. State, 314 Ga. App. 36, 39 (2) (722 SE2d 873) (2012) (holding that admission of improper similar-transaction evidence was harmless given that the evidence of defendant’s guilt, including DNA evidence, was overwhelming); Lawrence, 305 Ga. App. at 203 (3).


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A12A1998.
    ROYAL v. THE STATE.
    (735 SE2d 793)
   PHIPPS, Presiding Judge.

James Royal was convicted of committing against his girlfriend’s niece, T. H., the offenses of: (i) child molestation, for kissing the child and touching her breast area; (ii) aggravated child molestation, for touching the child’s vaginal area and thereby causing her physical injury; and (iii) first degree cruelty to children, for molesting said child and threatening to have the child placed in a foster home if she disclosed the sexual abuse he was inflicting upon her. Royal challenges the sufficiency of the evidence and the admission of similar transaction evidence. We affirm.

At trial, the state showed the following. The incident underlying Royal’s convictions occurred on May 13, 2008. Thirteen-year-old T. H., along with her minor sibling(s), were living with their aunt, Royal’s girlfriend, because their mother had demonstrated irresponsible parenting and mental limitations. Their aunt shared a home with Royal, the couple’s 11-year-old son, and their younger daughter.

On the evening of May 13, Royal was alone at the residence with the children, who had been instructed by Royal to clean their rooms. T. H. gave the following account. Royal called her to his and her aunt’s bedroom and told her to sit on the bed; she obeyed. Royal shifted the child’s clothing, then began kissing her neck and breast and rubbing her vaginal area. He warned T. H. that, if she told anyone about his acts, he would take her to a foster home. Royal’s son suddenly entered the room tattling on another child, but Royal hurriedly ushered him out and sat back on the bed with T. H. While he was kissing the child’s neck, T. H.’s aunt walked into the room, and Royal jumped to his feet. The aunt told T. H. to come with her, then drove the child away from the residence. The aunt asked T. H. whether Royal had hurt her; T. H. began crying and told her aunt what Royal had done.

Royal’s son also testified about that evening. He had opened the bedroom door and walked in; the bedroom light was off, but he could see his father kneeling and T. H. sitting on the bed with a towel on her lap. His father told him to “get out,” then shut the bedroom door as soon as the boy complied. Royal’s son told his younger sister what he had seen; she went to the bedroom, but also was sent away by Royal, who again shut the bedroom door. After the boy’s mother arrived and took T. H. away, Royal threatened to punish the boy if he told anyone what he had seen when he entered the bedroom. The police arrived later.

T. H.’s aunt gave her account. When she arrived home just after dark, at about 7:00, she walked to her and Royal’s bedroom. The bedroom light was off, and she pushed open the door. Royal was sitting beside T. H. on the bed; he was facing her and saying something to her. But when the door opened, Royal abruptly stood and began talking to the aunt about T. H.’s school matters. T. H. remained silent, looking afraid. After about three minutes, the aunt beckoned the child to come with her, and the two left the residence. Alone with her aunt, the child began crying and reluctantly disclosed that Royal had inappropriately touched her. The aunt grabbed her telephone to summon police, but T. H. pleaded for her not to place the call, revealing that Royal had threatened that, if she told anyone about what he had done, she would get in trouble, he would get in trouble, the aunt would be angry, and she would be sent to a foster home. The aunt turned to go back to the residence, summoning police. When she arrived, Royal was outside and overheard her talking to dispatch personnel. Initially, Royal asked what he had done; next, he asked them not to report him to police; then he offered to leave the residence. Meanwhile, the police arrived.

One responding officer recalled that T. H. was sitting in her aunt’s vehicle; the officer described that the child was curled into a fetal position and appeared shocked and hysterical; she was crying and would barely communicate with the officer. As the onsite investigation unfolded, Royal was arrested. A police investigator interviewed T. H. that same night. T. H. was crying and withdrawn, but eventually reported that Royal had kissed her on her lips and breast and put his finger in her private area. The investigator obtained a search warrant to obtain buccal swabs from Royal.

At about 11:00 a.m. on May 14, 2008, T. H. was seen by a sexual assault nurse examiner. T. H. told the nurse that Royal had licked her breast, put his mouth on her neck, and touched her inside her underwear. During a physical examination, to collect evidence, the nurse swabbed those areas which T. H. reported Royal had touched; and the nurse detected on T. H.’s hymen an abrasion that was consistent with a friction-type mechanism or rubbing. About two weeks later, the nurse obtained DNA swab samples from Royal, which were turned over to law enforcement. However, at trial, the state did not present any DNA evidence linking Royal to T. H.

The state was allowed to introduce similar transaction evidence for the limited purposes, as the jury was instructed, of showing Royal’s motive, intent, bent of mind, course of conduct and lustful disposition. The state elicited such evidence from two persons.

The first similar transaction witness was Royal’s girlfriend (T. H.’s aunt) who recounted that, two or three times when she was about 11 or 12 years of age, Royal took her to an abandoned building, pulled down her pants, and placed his fingers and penis on her vaginal area. When she was 13 years old, Royal, who was then about 30 years old, began having sexual intercourse with her. During this time frame, her mother was dating either Royal or Royal’s father, and she and her own mother were living in the same residence as Royal (and others). By age 17, the girlfriend was pregnant with Royal’s son.

Royal’s girlfriend testified that Royal’s response to her opening the bedroom door—he abruptly stopped talking to T. H., immediately stood up, then plunged into a three-minute dialogue with her about T. H.’s school matters — had made her fearful that he had begun sexually molesting her niece. She had sensed that “something wasn’t right”; T. H. should not have been in that bedroom at that time of night; and the episode had reminded her of Royal’s behavior during the period he was molesting her “[b]ecause if he was talking to me inappropriately] and somebody came up, he would change the subject.”

The second similar transaction witness was an older daughter of Royal, who was about 20 years old at the time of the underlying incident concerning T. H. The daughter recounted that when she was in the eighth grade and living with Royal (and T. H.’s aunt), Royal approached her in a bedroom, pulled down her clothing, and touched her vaginal area. The next day, Royal called her to a bed, told her to remove some of her clothing, then engaged in sexual intercourse with her. He threatened her that, if she told anyone, he would take her to a foster home.

Royal took the stand and denied the charges of the indictment, as well as the allegations of the similar transaction witnesses. According to Royal, he did not begin having sexual relations with his girlfriend until she was 17 years of age.

Regarding the evening in question, Royal recalled that his girlfriend was not at home. He had instructed the children to clean the residence; they had not complied, and he had repeatedly admonished them, particularly T. H. Meanwhile, T. H. went into his bedroom, sat on the bed, and began watching television. He sat beside T. H. and began discussing her school matters, while his younger daughter stood at the bedroom doorway. About this time, his girlfriend entered the house.

Royal testified that, although the bedroom light was off, the television was on. The bedroom door was never closed; he was never alone with T. H. because his younger daughter had remained in the doorway. After his girlfriend drove away with T. H., he began talking with his son about school matters. Royal denied telling his son and daughter to leave the bedroom, and he denied discussing with his son what he had seen inside the bedroom.

Royal testified that his older daughter had falsely accused him because she was still upset about dating restrictions he had imposed upon her when she lived with him. He claimed that his girlfriend had never forgiven him for not beating up his nephew after the nephew had physically fought her. Royal claimed that his girlfriend was upset with him also for having had little to no sexual desire since about 2006 and for thereafter having had health problems that diminished his sexual performance.

1. Royal challenges the sufficiency of the evidence. When an appellant challenges the sufficiency of the evidence to support the conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Royal cites his testimony denying that he had committed any act of sexual misconduct against T. H., his girlfriend, or his daughter. He asserts that he provided reasons why T. H., his girlfriend, and his daughter had falsely accused him. He claims that he explained at trial that, shortly before T. H. made the allegations to her aunt, he had sternly told T. H. to participate in the household cleaning and had further lectured the child on her schoolwork. Moreover, Royal points out that the state failed to introduce any DNA evidence connecting him to the charged offenses. According to Royal, the state’s case contained weaknesses and was contradicted by his testimony, mandating a reversal of his judgment of conviction.

But any evidentiary weaknesses, conflicts, or inconsistencies were for the jury to resolve. We do not speculate which evidence the jury chose to believe or disbelieve. Where as here, there was sufficient evidence, even though contradicted, to support each fact necessary to make out the state’s case, we must uphold the jury’s verdict.

Decided December 18, 2012.

Kevin C. Armstrong, for appellant.

Gregory W. Edwards, District Attorney, Melinda A. Wynne, Assistant District Attorney, for appellee.

2. Royal challenges the admission of the similar transaction evidence, making bare assertions that the test set forth in Williams v. State was not met and that the prejudicial effect of the evidence outweighed its probative value.

When reviewing the trial court’s factual findings regarding whether the state satisfied the three-prong test mandated by Williams, [] we apply the “clearly erroneous” standard. The decision to admit similar transaction evidence which satisfies the three-prong test is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion.

Having reviewed the record, we find no merit in Royal’s challenge to the admission of the similar transaction evidence.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

       See OCGA §§ 16-5-70 (b) (providing that a person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain); 16-6-4 (a) (1) (providing that a person commits child molestation when such person does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person); 16-6-4 (c) (providing that a person commits aggravated child molestation when such person commits an offense of child molestation which act physically injures the child).

       The record does not make this point clear.

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

        Dix v. State, 307 Ga. App. 684, 686 (1) (705 SE2d 903) (2011) (punctuation and footnote omitted). See Jackson, supra; OCGA § 24-4-8 (providing that the testimony of a single witness is generally sufficient to establish a fact); Williamson v. State, 315 Ga. App. 421, 423-424 (1) (a) (727 SE2d 211) (2012); Adorno v. State, 314 Ga. App. 509, 511-512 (1) (724 SE2d 816) (2012).

       261 Ga. 640, 641 (2) (b) (409 SE2d 649) (1991) (outlining the three-prong test for determining whether evidence of an independent act may be admissible as similar transaction evidence).

       Supra.

        Reed v. State, 291 Ga. 10, 14 (3) (727 SE2d 112) (2012) (citations omitted).

       See Hunt v. State, 288 Ga. 794, 797-798 (3) (708 SE2d 357) (2011) (in determining the admissibility of similar transaction, focus is properly on similarities, and not differences, between act in question and incident on trial; if the admitted purpose of similar transaction evidence is to show bent of mind or course of conduct, a lesser degree of similarity is required than when such evidence is introduced to prove identity); Pareja v. State, 286 Ga. 117, 119-121 (686 SE2d 232) (2009) (noting that the three-part test presents “the mechanism by which one can determine whether the probative value of the similar transaction evidence outweighs its prejudicial impact upon the defendant,” and the outcome of the balancing test generally determines the admissibility of the similar transaction evidence; explaining further that the principle — when considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences — “is most liberally extended in cases involving sexual offenses because such evidence tends to establish that a defendant has such bent of mind as to initiate or continue a sexual encounter without a person’s consent”); Bibb v. State, 315 Ga. App. 49, 51-52 (2) (a), (b) (726 SE2d 534) (2012).


author: Ellington, Chief Judge.

text:
    A12A2343.
    RUSSELL v. THE STATE.
    (735 SE2d 797)
   Ellington, Chief Judge.

A Fulton County jury found Andre Russell guilty of hijacking a motor vehicle, OCGA § 16-5-44.1 (b); three counts of armed robbery, OCGA § 16-8-41 (a); three counts of aggravated assault with a deadly weapon, OCGA § 16-5-21 (a) (2); possession of a firearm during the commission of a felony, OCGA § 16-11-106 (b) (1); and fleeing or attempting to elude a police officer, OCGA § 40-6-395 (a). Russell appeals from the denial of his motion for new trial, contending that the trial court erred in admitting identification evidence, in giving a “level of certainty” jury charge, and in rejecting his claim of ineffective assistance of trial counsel. Finding no reversible error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that, at about 2:00 a.m. on December 27, 2007, Maggie Hall was driving with two of her friends through the Grant Park neighborhood of Atlanta. When Hall stopped her green, 2002 Honda Accord at a red light, a light-colored van came to a stop next to her car, and two armed men got out of it. The man who got out of the passenger side of the van, later identified as Russell, walked to the rear driver’s side door of Hall’s vehicle, where Asher Kincaid was sitting. Kincaid quickly locked her door, so Russell pointed his weapon at Hall and demanded money. The unidentified man who got out of the driver’s side of the van, Russell’s accomplice, approached Hall’s front seat passenger, Joseph Keck, and demanded money from him at gunpoint. The accomplice then opened the rear passenger door and demanded money from Kincaid. After Russell and his accomplice had robbed the three victims, the accomplice ordered the victims to get out of the car. The accomplice drove away in the van, and Russell took Hall’s Honda. One of the victims called 911 from a cell phone, and then the three walked to a nearby police precinct where they told an officer what had happened. They all gave descriptions of the robbers, and Hall described the man who robbed her as wearing his hair in shoulder length “twists or dreads.” Hall told the police that she was confident that she could identify the person who had robbed her.

On December 29, a police officer saw the stolen Honda, activated his patrol car’s blue lights and siren, and pursued the driver, who attempted to elude him. After the first officer briefly lost sight of the Honda, another officer spotted the car and continued the chase. The driver eventually lost control of the car, crashed it into a wall near a public park, and fled on foot. A third officer caught the driver at a nearby service station and took him back to the second officer, who identified him as the man he had seen driving the stolen Honda. The police arrested the driver, who was later identified as Russell. Russell fit the description of the man who had robbed Hall.

A few days later, the victims were asked to come back to the precinct to review three books containing large numbers of mug shots. The majority of the pictures in the mug shot books were predominantly African-American males. The victims were not told that Russell had been arrested or that his photograph had been placed in one of the mug shot books. The victims reviewed the mug shot books together and all selected Russell’s picture from one of the books they reviewed, identifying him as one of the men who had robbed them on December 27. The victims also identified Russell at trial.

At trial, Russell presented an alibi witness, a relative who testified that Russell was living with him and was at home on the night of the hijacking. The State impeached the witness, however, with evidence that Russell was living elsewhere on the night in question.

1. Russell contends the trial court erred in refusing to suppress the victims’ identification testimony because the testimony was tainted by an impermissibly suggestive pre-trial identification procedure which created a substantial likelihood of misidentification. We disagree.

When ruling on a motion to suppress, the trial court sits as the trier of facts, and its findings regarding them are not disturbed on appeal if there is any evidence to support them; the trial court’s decisions with regard to questions of fact and credibility must be accepted unless clearly erroneous, and a reviewing court construes the evidence most favorably to the trial court’s findings.

(Citations and punctuation omitted.) Whitmore v. State, 289 Ga. App. 107 (657 SE2d 1) (2008).

Testimony concerning a pre-trial identification of a defendant should be suppressed if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification. The taint which renders an identification procedure impermissibly suggestive must come from the method used in the identification procedure. An identification procedure is impermissibly suggestive when it leads the witness to an all but inevitable identification of the defendant as the perpetrator, or is the equivalent of the authorities telling the witness, “this is our suspect.”

(Punctuation and footnotes omitted.) Brooks v. State, 285 Ga. 246, 248-249 (3) (674 SE2d 871) (2009). There is no evidence in the record that the police did anything to influence the victims’ choice. The victims were unaware that an arrest had been made and had not been informed that a suspect’s photograph was in one of the books. In fact, the record shows that the victims were left alone, without police supervision, to review the books. There is no evidence that Russell’s picture was displayed within the mug shot books in a way that was impermissibly suggestive. We have held that allowing a witness to review books containing mug shots is not an inherently impermissibly suggestive procedure. See Robinson v. State, 179 Ga. App. 616, 618-619 (2) (347 SE2d 667) (1986).

Although allowing witnesses to view the same photographic arrays or mug shots at the same time is discouraged, as the first witness to make an identification may influence the other witnesses, such simultaneous viewing is not fatal to an identification. Escobar v. State, 279 Ga. 727, 729 (2), n. 5 (620 SE2d 812) (2005). Pretermiting whether Keck and Kincaid may have been influenced by Hall’s having first selected Russell’s picture, their later in-court identification was nevertheless admissible because it did not depend upon the prior identification, but had an independent origin. Id. at 728-729 (2). In this case, the other two witnesses had both recounted details about Russell’s appearance to the police before their identification. Further, they both testified that they had an opportunity to see Russell’s face during the crime, and they both testified that they identified Russell as the robber based upon their own recollections of his appearance. Consequently, the trial court did not err in admitting the identification testimony of these witnesses. See id.

2. Russell contends that the trial court erred by giving a “level of certainty” charge in instructing the jury on the reliability of eyewitness identification, a charge the Supreme Court of Georgia disapproved of in Brodes v. State, 279 Ga. 435, 442 (614 SE2d 766) (2005). Russell, however, did not object to the “level of certainty” language in the charge. Hence, he waived any objection he might have had, unless he can show that giving the charge “constitute [d] plain error which affect[ed] substantial rights of the parties.” OCGA § 17-8-58 (b).* * Russell has failed to make such a showing in this case.

In Brodes, the Supreme Court advised trial courts to refrain from instructing jurors that they may consider a witness’s level of certainty when assessing the reliability of an identification. Brodes v. State, 279 Ga. at 442. The Supreme Court concluded that giving the instruction constituted harmful error under the circumstances of that case. Id. Brodes was convicted of armed robbery in a trial in which the only evidence implicating him was the testimony of the two victims, both of whom identified Brodes in court as the perpetrator. Id. at 435-438. “The victims testified they were ‘absolutely certain’ of their identification of him and were repeatedly called upon by the prosecuting attorney to repeat their certainty in the accuracy of their identification.” Id. at 435. Additionally, the Court considered that one of the victims in that case had been unable to give the police a physical description of Brodes, that the victims were under stress while being robbed at gunpoint at night, that Brodes was a stranger to the victims, that one of the victims was unable to pick Brodes’ photograph from a photographic array, and that the other victim could only describe the weapon that was used. Id. Nevertheless, both victims repeatedly stated at trial that they were positive the defendant was the robber. Id. at 437.

The victims in this case, unlike those in Brodes, gave descriptions of the robbers to the police immediately after the incident, including the fact that the man who robbed Hall wore his hair in shoulder-length “twists or dreads.” Hall told the police that she could identify the man who robbed her. Moreover, the victims each identified Russell’s picture from mug shot books. None of the victims repeatedly testified to being “positive” or “absolutely certain” of their identification, as those in Brodes did. The victims each identified Russell and were, thereafter, thoroughly cross-examined by defense counsel about the circumstances surrounding their identification, including the lighting and their opportunity to see Russell’s face. The State also introduced other evidence implicating Russell, including his possession of the car two days after the hijacking and his attempt to elude the police. Further, the State did not assert during closing argument that the victims’ level of certainty should be afforded greater weight than any other factor. Finally, the trial court accurately instructed the jury as to the State’s burden of proving Russell’s identity beyond a reasonable doubt and the possibility of mistaken identification, as well as several other relevant considerations, such as witness credibility and impeachment. See Williams v. State, 300 Ga. App. 839, 844-845 (3) (a) (686 SE2d 446) (2009). Accordingly, we conclude that it is highly probable that giving the jury instruction did not contribute to the verdict given the circumstances of this case, and any error was thus harmless. See id.

3. Russell contends that the court erred in denying his motion for new trial on the ground of ineffective assistance of counsel. Under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. See id. at 687-688, 694 (III) (A)-(B). “There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” (Citations and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004). If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004). When reviewing the trial court’s decision, this Court will accept the trial court’s factual findings and credibility determinations unless clearly erroneous; however, we review the court’s application of legal principles de novo. Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

(a) Russell argues that his trial counsel was ineffective for not objecting to the “level of certainty” charge. We disagree. Russell cannot establish that he was prejudiced as a result of counsel’s decision for the same reasons discussed in Division 2, supra.

Decided December 18, 2012.

Jennifer A. Trieshmann, for appellant.

Paul L. Howard, Jr., District Attorney, David K. GetachewSmith, Assistant District Attorney, for appellee.

(b) Russell also contends that his counsel was ineffective for failing to request a charge informing the jury that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. Because the State adduced both direct (eyewitness testimony) and circumstantial evidence at trial in this case, the trial court was not required to charge the jury on circumstantial evidence pursuant to OCGA § 24-4-6, absent a request. See Stubbs v. State, 265 Ga. 883, 884-885 (2) (463 SE2d 686) (1995).

Because the State’s case rested primarily on direct evidence and because Russell relied on an alibi defense at trial, we cannot conclude that Russell’s trial counsel was deficient in declining to request a jury charge on circumstantial evidence. See Landers v. State, 270 Ga. 189, 191 (4) (508 SE2d 637) (1998). Moreover, Russell has failed to show that he was prejudiced by his counsel’s failure to request the charge. Id.

Consequently, the trial court did not err in denying Russell’s motion for new trial on the ground of ineffective assistance of trial counsel.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

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

       The trial court instructed the jury:
      Identity is a question of fact for you to determine. Your determination of identity is dependent upon the credibility of the witness or witnesses offered for this purpose. You should consider all of the factors previously charged you regarding credibility of witnesses. Some, but not all, of the factors you may consider in assessing the reliability of identification are: The opportunity of the witnesses to view the alleged perpetrator at the time of the alleged incident; the witness’s degree of attention toward the alleged perpetrator at the time of the alleged incident; the level of certainty shown by the witness about his or her identification; the possibility of mistaken identity, whether the witness’s identification may have been influenced by factors other than the view that the witness claimed to have; and whether the witness on any prior occasion did not identify the defendant in this case as the alleged perpetrator.
      (Emphasis supplied.)

       Russell’s trial occurred in February 2009. OCGA § 17-8-58 (a), whichbecame effective on July 1, 2007, requires that a defendant “inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” Failure to comply with subsection (a) “preclude [s] appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.” OCGA § 17-8-58 (b).


author: Adams, Judge.

text:
    A12A1826.
    TOUCHSTONE v. THE STATE.
    (735 SE2d 805)
   Adams, Judge.

Dennis Touchstone was convicted by a jury of burglary, aggravated assault on a police officer, obstruction of a law enforcement officer and possession of a firearm during the commission of a crime. He appeals following the denial of his motion for new trial, contending that the trial court gave an inadequate response to a question from the jury, that his trial counsel was ineffective because he did not object to the trial court’s inadequate response, and that the evidence was insufficient to convict him of aggravated assault and possession of a weapon during the commission of a crime. We agree with Touchstone that the evidence was insufficient, and that his convictions of those crimes must be reversed.

1. The record and transcript show the following facts which are pertinent to the resolution of Touchstone’s challenge to the sufficiency of the evidence: On April 13, 2010, Dvore Bray called police to report an apparent burglary in progress in his neighborhood and gave police a description of the car the alleged perpetrators were driving. A short time later, Sergeant Kevin T. Hughes of the Clayton County Police Department saw a car matching the description Bray had provided and started following the car. Another officer in the area, Tunisha Billups, heard a call go out that Hughes was following the car that had been described in the burglary dispatch and fell in behind Hughes.

Hughes initiated a stop of the vehicle, and the vehicle pulled into a gas station. The passenger, who was subsequently identified as Touchstone, jumped out of the car and “immediately” began running away. Hughes detained the driver, and Billups pursued Touchstone. Although Billups identified herself as a police officer and commanded Touchstone to stop, he never paused and continued to run toward a nearby wood-line. Billups continued to pursue Touchstone, but lost sight of him when she slipped and fell and he turned left into the wood-line. Billups started to pull herself up from the ground, but heard what sounded like a gunshot and immediately dropped back to the ground because she was in an open area and could not see Touchstone. Billups, fearing for her life, discontinued the chase.

Other officers who had arrived at the scene of the stop had spread out around the perimeter, and one of those officers, Robert Gardner, observed Touchstone come out of the “creek wood-line area.” Gardner identified himself and instructed Touchstone to get on the ground, whereupon Touchstone turned and ran back toward the wood-line. Gardner pursued Touchstone, and Touchstone gave up when it became apparent that Gardner had the advantage.

Gardner located a gun in the area, although it was not where Touchstone told the officers he had thrown it. Gardner identified the gun as a Smith and Wesson revolver, and a subsequent examination of the gun revealed it had been fired once.

The State also introduced evidence that Touchstone was out on bond on another crime, and that he made statements that he intended to run from police. Touchstone also told police that he knew he was going to get caught and go to jail, and that the gun fired accidentally when he was taking it out of his pants pocket to dispose of it. But Officer Gardner testified that revolvers require a lot of “trigger pull” to discharge, and that it would be difficult to accidentally fire the gun while pulling it out of your pocket since you would be pulling the gun in the opposite direction of the trigger pull.

Based on the foregoing, Touchstone was charged with aggravated assault and possession of a firearm during the aggravated assault. In Georgia, “[a] person commits the offense of aggravated assault when he or she assaults: (1) [w]ith intent to murder, to rape, or to rob; (2) [w]ith a deadly weapon____”OCGA § 16-5-21 (a). Our law further provides that simple assault may be committed in one of two ways: by an attempt to commit a violent injury to the person of another, OCGA § 16-5-20 (a) (1), or by commission of an act which places another in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-20 (a) (2).

Touchstone was indicted for “knowingly mak[ing] an assault upon the person of Tunisha Billups, a peace officer engaged in the performance of her official duties, with a deadly weapon, to wit: a .357 caliber revolver,” and thus on its face the indictment was broad enough to authorize Touchstone’s conviction of aggravated assault based on either OCGA § 16-5-20 (a) (1) or (a) (2), provided it was shown that he committed the assault with a gun. Chase v. State, 277 Ga. 636, 638 (1) (592 SE2d 656) (2004). However, the trial court’s charge included an instruction only on attempt to commit a violent injury; nowhere in its instructions did the court charge that Touchstone could be found guilty of assault by placing Billups in reasonable apprehension of receiving a violent injury. Thus, although the indictment and governing law may have authorized the jury to convict Touchstone based on either OCGA § 16-5-20 (a) (1) or (a) (2), we agree with Touchstone that, pursuant to the trial court’s instructions, the jury was authorized to convict him of aggravated assault only if it was established beyond a reasonable doubt that he attempted to commit a violent injury to Billups.

Further, we agree with Touchstone that the circumstantial evidence, which primarily consisted of Billups’ testimony that she lost sight of Touchstone, heard a gunshot and fell to the ground because she feared for her life, was insufficient to establish that the shot was fired with the intent to cause her actual physical injury. Touchstone was out of the officer’s view when he fired the gun, no other officer or witness saw him fire the gun, no witness saw where he aimed the gun when he fired it, and no forensic or other evidence was introduced which suggested that he fired the gun in Billups’ direction. In sum, there is no evidence here that Touchstone intentionally fired the gun at Billups, intending to inflict a violent injury to her person. Cf. Chase v. State, 277 Ga. at 638 (1) (evidence sufficient to show that defendant knew victim was in small kitchen in the townhome and intentionally fired gun at her through the upstairs flooring) ;Nyane v. State, 306 Ga. App. 591 (703 SE2d 53) (2010) (shots fired in the victim’s direction which hit him was sufficient to support conviction for aggravated assault).

The State counters that because the jury obviously rejected Touchstone’s defense that he discharged the gun by accident, his conviction for aggravated assault was authorized. However, even if the jury’s verdict necessarily indicates that the jury found incredible Touchstone’s statements to police that the gun discharged accidentally, we do not believe that it follows, under the facts of this case, that “the jury was entitled to take his untruthfulness as substantive and affirmative evidence of his guilt [of aggravated assault under OCGA § 16-5-20 (a) (1) as charged by the trial court].” Ferguson v. State, 307 Ga. App. 232, 235 (1) (704 SE2d 470) (2010) (jury could consider perjured testimony as affirmative evidence of guilt). Even if the jury concluded that the shot was fired deliberately, there is simply nothing to show that Touchstone intended to commit a violent injury to Billups by firing the shot.

Further, there are clear indications that the jury may have been confused by other parts of the charge and that the unsupportable verdict in this case may have stemmed in part from that confusion. Although “aggravated assault with a deadly weapon based on OCGA § 16-5-20 (a) (1) cannot be committed by criminal negligence,” Dunagan v. State, 269 Ga. 590, 591 (2) (a) (502 SE2d 726) (1998), the trial court’s charge contained several references to criminal negligence, and the jury was informed several times that they could find Touchstone guilty of a “crime” if he acted with intent or criminal negligence. And clearly the jury was confused about the intent element of the crime, as demonstrated by questions they posed while they were deliberating. The jury first asked the court to “define aggravated assault, layman’s term of aggravated assault, example, if gun was fired intentionally but without intent to harm officer is that aggravated assault on a peace officer, i.e., firing a warning shot.” The trial court did not directly respond to the question, but instead referred the jury back to its original final instructions, and provided the jurors with a copy of those instructions. The jury continued to deliberate, at one point asking the court if they could test the “trigger pull” on the revolver. The trial court denied this request, and the jury subsequently indicated to the court that it remained deadlocked on the aggravated assault charge, commenting that the “[m] ain issue appears to be the following, is intent to harm required for aggravated assault. Can defendant be found guilty on aggravated assault if discharge was unintentional.” The trial court once again referred the jury back to the charge and reminded the jurors that they had been given a copy of the charge. Thus, as Touchstone observes, “[ejven though the trial court charged [the jury that intent to injure was required for] aggravated assault, [it appears] the jury was still unable to glean the intent requirement from the charge [as a whole] because of the confusion caused by... the criminal negligence language throughout the charge.”

The evidence here was insufficient to convict Touchstone of the offense of aggravated assault under OCGA § 16-5-20 (a) (1), and his conviction for that offense must be reversed.

Further, we agree with Touchstone that his conviction for possession of a firearm in the commission of a felony based on the underlying felony of aggravated assault must also be reversed. Flores v. State, 308 Ga. App. 368, 372 (4) (707 SE2d 578) (2011); Elrod v. State, 238 Ga. App. 80, 83-84 (2) (517 SE2d 805) (1999).

2. Because of our holding in Division 1, it is unnecessary for us to consider Touchstone’s remaining enumerations in which he contends that the trial court gave an inadequate response to the jury’s questions about intent and that his trial counsel was ineffective because he did not request a more complete response and did not object to the manner in which the trial court responded to the jury’s questions.

Judgment reversed.

Barnes, P. J., and McFadden, J., concur.

Decided December 19, 2012.

Lynn M. Kleinrock, for appellant. Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

       Touchstone does not challenge the sufficiency of the evidence to support his convictions for burglary and obstruction.

       Hughes, who was the supervising officer at the scene, also instructed Billups to call off the chase for officer safety reasons.

       There is no question here that the aggravated assault, if any, was committed by the use of a handgun.

       The court charged as follows:
      A person commits the offense of aggravated assault when that person assaults another person with a deadly weapon. To constitute an assault actual injury to the alleged victim need not be shown. It is only necessary that the evidence show beyond a reasonable doubt that the defendant attempted to cause a violent injury to the alleged victim.
      This was a correct statement of the law that would have authorized Touchstone’s conviction under OCGA § 16-5-20 (a) (1).

       Obviously there is no dispute here that it was Touchstone who fired the gun.

       The trial court instructed the jury that “[cjriminal negligence is an act which demonstrates a wilful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.”


author: McFADDEN, Judge.

text:
    A12A2018.
    FORD v. REDDICK.
    (735 SE2d 809)
   McFADDEN, Judge.

Kaiser Ford appeals the grant of summary judgment to La’Rhonda Reddick, the executor of the estate of Ruby Lee Gloster, in Reddick’s action to set aside two warranty deeds. The trial court correctly concluded that the deeds were invalid as they conveyed property to a trust instead of a trustee. We therefore affirm.

A moving party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). Further, “[t]he construction of a deed presents a question of law which this [c]ourt reviews de novo.” (Citation omitted.) Second Refuge Church of Our Lord Jesus Christ v. Lollar, 282 Ga. 721, 724 (2) (653 SE2d 462) (2007).

Gloster executed a power of attorney appointing Ford as her attorney in fact. Ford immediately executed the two warranty deeds at issue. As Gloster’s attorney in fact, he conveyed Gloster’s real property to “Morison Outreach, a Trust.” Seeking to set aside those deeds, Gloster filed the instant action against Ford and the trust. After Gloster passed away, the trial court substituted her executor, Reddick, as the plaintiff. The trial court granted summary judgment to the executor, and Ford appeals.

1. Parties properly before the court.

We first observe that in addition to Ford, the brief of appellants lists ‘Morison Outreach, Trust/Co-Trustee” and “Tanenankhaha Andrews, Co-Trustee” as appellants. Ford signed the brief on his own behalf, and Andrews signed the brief on his own behalf and on behalf of “Morison Outreach, Trust/Co-Trustee.” But Andrews was never made a party to this action and therefore lacks standing to appeal. “It is well settled that only a party to the case can appeal from a judgment, or one who has sought to become a party as by way of intervention and has been denied the right to do so.” (Citation and punctuation omitted.) Degussa Wall Systems v. Sharp, 286 Ga. App. 349, 350 (648 SE2d 687) (2007). See also OCGA § 5-6-33.

Decided December 20, 2012.

Kaiser Ford, pro se.

Clark & Bellamy, Andrew W. Clark, for appellee.

Nor does it appear that either Ford or Andrews is an attorney who can represent Morison Outreach before this court. See OCGA § 15-19-51 (a) (1). Consequently, the only proper appellant is Ford, and we do not address the enumeration of error asserted on behalf of Andrews and Morison Outreach.

2. The trial court correctly granted summary judgment.

The trial court held that the deeds were invalid because they attempted to convey property to the trust instead of to a trustee. We agree. A deed that does not properly designate a grantee does not convey title. Cox v. Pearson, 212 Ga. 294 (92 SE2d 25) (1956). See also 2 Daniel F. Hinkel, Pindar’s Ga. Real Estate Law & Procedure § 19-137 (6th ed. 2012). And under OCGA § 53-12-25 (a), the “[transfer of property to a trust shall require a transfer of legal title to the trustee.” In other words, in order for a deed to convey property to a trust, the trustee must be designated as the grantee of legal title.

Ford has come forward with no evidence showing that Morison Outreach, a Trust is anything other than a trust. Indeed, in his verified answer to the complaint, Ford referred to the entity to which he transferred property under the power of attorney as a trust. Ford has failed to satisfy his burden on summary judgment, and the trial court properly granted summary judgment to Reddick.

3. The trial court’s failure to rule on Ford’s motion for special exceptions.

Ford enumerates as error the trial court’s failure to rule on his “motion for special exceptions.” The appellate record contains no such motion. In his brief, Ford gives a citation to the record that corresponds to a motion to dismiss for lack of jurisdiction filed on behalf of Morison Outreach by Andrews. But the record contains no motion filed by Ford. Ford therefore has not shown error.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


author: McFadden, Judge.

text:
    A12A2284.
    CHAMBLEE v. THE STATE.
    (735 SE2d 810)
   McFadden, Judge.

Thomas A. Chamblee appeals his convictions of four counts of child molestation. He argues that the evidence was insufficient to support the convictions. We disagree and therefore affirm his convictions.

On appeal, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). Viewed in this light, the evidence showed that the victim was the daughter of Chamblee’s girlfriend. The victim was seven years old at the time of trial.

One evening when the victim was spending the night at her maternal grandparents’ house, she and her maternal grandmother called the paternal grandmother to tell her good night; her grandmothers were friends. While they were on speaker phone, the victim said that she had something to tell her grandmothers, but she made them promise not to tell her mother. The victim told her grandmothers that Chamblee had pulled down her pajamas and underwear, put his finger in her mouth and rubbed her genitals. He then turned her over, rubbed her buttocks and began “humping” her.

The maternal grandmother had the victim repeat her description of what happened, and recorded her statement on a cellular telephone. The audio recording was played for the jury. Days later, the victim repeated her accusation to the paternal grandmother. The victim told a police detective and an employee of the Department of Family and Children Services that Chamblee had touched her, and her descriptions were consistent with her outcry to her grandmothers.

The mother told the victim that if she did not tell the truth, she could get Chamblee in trouble. She also called the victim a liar in front of both grandmothers, telling her that she was going to cause Chamblee to go to jail. Some time later, while the victim was at her mother’s apartment, the maternal grandmother and the victim spoke on the phone, and the victim told her grandmother that she had lied. The mother also had the child tell the paternal grandmother that she had lied. The mother took the child to the investigating detective and told him that the victim had lied.

At trial, when the prosecutor asked the victim if what she told her grandmother was true, the victim shook her head no. When asked about whether she talked to her grandmother about Chamblee touching her, the victim said, “But he didn’t really touch me. I was just trying to say, ‘Good night, Mawmaw. I love you. Will you go get Bubbles, please?’And I just blurted it out in my head.”

Decided December 20, 2012.

Kelley A. Dial, for appellant.

The jury returned a verdict of guilty, and Chamblee appeals the judgment entered on the verdict.

A person commits child molestation when he “[d] oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a) (1). The testimony about the victim’s description of Chamblee’s acts,

standing alone, was sufficient to support the verdict; and the jury was entitled to consider the victim’s out-of-court statements ... as substantive evidence under the Child Hearsay Statute, OCGA § 24-3-16. Accordingly, we conclude that any rational trier of fact could have found [Chamblee] guilty beyond a reasonable doubt of the [four] counts of . . . child molestation with which he was charged. . . .
[T]he victim’s testimony, alone, supports [Chamblee’s] convictions, despite the absence of any physical evidence, because Georgia law does not require corroboration of a child molestation victim’s testimony.... [And] any inconsistencies between the victim’s trial testimony and her out-of-court statements were issues of witness credibility that were solely within the province of the jury and play no part in this [c]ourt’s sufficiency of the evidence review. On appellate review, we determine only the legal sufficiency of the evidence adduced below and do not weigh the evidence or assess the credibility of the witnesses. Thus, as long as there is some evidence, even though contradicted, to support each necessary element of the state’s case, the verdict will be upheld.

(Citations and punctuation omitted.) Anderson v. State, 315 Ga. App. 679, 681-682 (1) (727 SE2d 504) (2012). The victim’s description of Chamblee’s acts authorized the jury to find Chamblee guilty under the standard of Jackson v. Virginia, supra, 443 U. S. 307. See Goldstein v. State, 283 Ga. App. 1, 3 (1) (640 SE2d 599) (2006). We therefore must affirm his convictions.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.

T Joseph Campbell, District Attorney, Elizabeth M. York, Assistant District Attorney, for appellee.


text:
    A12A1680.
    LOPEZ v. THE STATE.
    (735 SE2d 812)
   Adams, Judge.

Raul Lopez was convicted by a jury of aggravated child molestation, two counts of rape and three counts of child molestation. He filed a motion for new trial, as amended, which the trial court denied, and then the present appeal. Having considered his claims of error on appeal, we now affirm.

Construed to support the jury’s verdict, as we must on appeal, the evidence presented at trial showed the following facts pertinent to the issues raised here.

The victim, who was almost nine years old at the time of trial, testified first. The victim testified that she was currently living with her mother’s sister in Texas, but that she went to kindergarten and first grade in Georgia. She said she remembered talking to a school counselor and police about Lopez when she was in the first grade, but said she “forgot” what she had talked to them about. Upon further questioning, she said she remembered telling people that Lopez “had done some things to [her],” but that “it was a lie because a girl told [her] to say that.” She also said the girl, whose name she could not remember, did not love her family and that was why she told the victim to say the things she said about Lopez.

Cathy Koon, a counselor at B. B. Harris Elementary School in Gwinnett County, testified next. Koon said that she was conducting a “safety lesson” on good touches, bad touches and nasty touches to the victim’s first grade class when the victim spontaneously raised her hand and volunteered that someone had touched her on her “butt” when she was on the school bus. Koon took the victim to her office, and the victim then disclosed that Lopez touched her on her “biscuit.” Koon asked the victim to explain what she meant by her biscuit, and the victim said “down there” and put her hand on the front area of her “private part.” Koon also asked the victim if anything else happened, and the victim said Lopez put his biscuit on her biscuit. Koon gave the victim a male doll and female doll and asked her to demonstrate what Lopez did to her; the victim “immediately took the boy doll, placed it on top of the girl doll and then proceeded to move the doll back and forth and say, uh, uh.” The victim told Koon that Lopez’s biscuit would not fit in her biscuit and that he put his hand over her mouth so she would not make any noise.

Koon then contacted the Gwinnett County Department of Family and Children Services (DFACS). Babette Stephens, who at that time was a child protective services investigator with Gwinnett County DFACS, came to the school and spoke with the victim. Stephens said that the victim told her that Lopez would come into her room and they both would undress and get under the covers in bed and that he would rub his biscuit on her biscuit. The victim also told her that her mother would be in the kitchen during this time.

Stephens then contacted the Gwinnett County Police Department Special Victims Unit, and Sergeant D. L. Brewster and Officer Benny McCollough came to the school and did an initial interview with the victim. This interview, in which the victim described what Lopez did to her, was audio recorded and played for the jury at trial. Although the interview was audio only, Sergeant Brewster explained to the jury that male and female “Barbie-type” dolls were used during the interview and the victim used the dolls to demonstrate some of what she was saying, including pointing to the front groin area of both dolls to show where their biscuits were located. He also testified that the victim pointed to her chest to explain what her “chi-chis” were, and that the victim said that Lopez’s penis looked similar to a pencil and was near his stomach.

Additionally, during the interview the victim told the officers that Lopez would take his pants off and her dress off and would place his biscuit on her biscuit. The officers asked the victim whether Lopez placed his biscuit on or in her biscuit and she said that he placed it in her biscuit. The victim also said that sometimes Lopez placed his biscuit in her “butt,” and that he kissed her on her mouth and sometimes put his tongue on her tongue, that he kissed her on her “chi-chis” and that he would sometimes lick and kiss her biscuit.

The victim was then transported to Gwinnett County Sexual Assault Center (GSAC) and examined by Denise Proto, who was qualified as an expert in sexual assault examination. Proto said that, as was her custom, she began the examination by asking the victim why she was there, and the victim responded that Lopez had done something to her. Proto asked the victim to elaborate, and she told Proto that Lopez puts his biscuit in her biscuit. She indicated to Proto that her biscuit referred to her pubic area and said that Lopez’s biscuit did not look like a biscuit and was brown, and that it hurt when Lopez put his biscuit on her biscuit. The victim also told Proto that Lopez grabbed her breasts, which she called her “chi-chis,” and wiggled them and that they turned red because he wiggled them “hard,” and that sometimes Lopez put his mouth on her biscuit.

Proto conducted her physical examination of the victim next, and noted that there was generalized redness around the victim’s vagina. She said this redness was consistent with what the victim said Lopez did to her, but also said on cross-examination that the redness could also be attributable to benign causes such as poor hygiene.

Officer McCollough testified that a warrant was then obtained for Lopez’s arrest, and that he was arrested at his home, which was in unincorporated Gwinnett County. However, Officer McCollough said several days later he received a telephone call from the victim’s mother, who told him the victim wanted to speak to him. He talked to the victim on the phone, and she told him she wanted to come to police headquarters so she could tell him she was sorry she had lied to him. The victim came to the station about three days later, and Officer McCollough spoke to her in an interview room and taped that interview on a hidden camera. That recording, in which the victim both recanted and affirmed her previous statements concerning the molestation, was then introduced and played for the jury.

In addition to recanting the allegations she made against Lopez to the police, the victim also sought out Koon and said she needed to apologize because she had lied and that it was really her three-year-old brother who had done those things to her. Likewise, Lopez introduced evidence that employees of the district attorney’s office talked to the victim on the phone while she was living in Texas, and that conversation had also been recorded and was played for the jury. In that conversation, the victim said she lied to Koon and the police because a “girl told her to.”

1. Lopez first argues that the testimony given by Koon, the police officers and Proto improperly bolstered the testimony of the victim. However, the testimony of these witnesses was presented after the victim testified she lied when she said that Lopez committed various sexual acts against her. Thus, the testimony of these witnesses contradicted rather than bolstered the victim’s testimony, and was properly admitted over defense counsel’s vigorous objection. Our Supreme Court has “rejected the assertion that a prior inconsistent statement is admissible only if the witness denies making the prior statement, but not if [the witness] simply disputes the truth of the earlier statement. There is no such ‘denial’ requirement under (OCGA § 24-9-83).” (Citation and punctuation omitted.) Johnson v. State, 289 Ga. 106, 108 (3) (709 SE2d 768) (2011). Bryant v. State, 288 Ga. 876, 885 (8) (a) (708 SE2d 362) (2011); Wilson v. State, 286 Ga. 141, 142 (2) (686 SE2d 104) (2009); Warner v. State, 281 Ga. 763, 766 (3) (642 SE2d 821) (2007). Further, as the State points out, this testimony was admissible under the Child Hearsay Statute as well. OCGA § 24-3-16. Metts v. State, 297 Ga. App. 330, 337 (7) (677 SE2d 377) (2009). This enumeration is thus without merit.

2. Lopez also argues that the evidence was insufficient to prove venue in Gwinnett County. We disagree. Although it is true that in Georgia venue is a jurisdictional fact that must be proved beyond a reasonable doubt, it is likewise true that “[t]he State may establish venue by whatever means of proof are available to it, and it may use both direct and circumstantial evidence.” Barkley v. State, 302 Ga. App. 437, 437-438 (691 SE2d 306) (2010). Hargrave v. State, 311 Ga. App. 852, 853 (1) (717 SE2d485) (2011); Stegall v. State, 308 Ga. App. 666, 666-667 (2) (708 SE2d 387) (2011).

In this case, several witnesses testified concerning where the crimes took place. First, although the victim, who would have been six years old at that time, did not know which county she lived in when she lived in Georgia, she did recall that she lived with Lopez, her mother and her siblings and said she could not remember living in any other house except the house they lived in then. The victim also told several witnesses that the sexual abuse happened in a room where they would get into a bed and that during that time her mother would be in the kitchen.

Additionally, Koon testified that all students who attend the school the victim was attending at the time she made the disclosure were required to live in Gwinnett County. And the DFACS worker testified that she established that the victim lived with Lopez, her mother and her siblings, and that the home was located in Gwinnett County. Further, Officer McCollough testified that Lopez was arrested at his home in unincorporated Gwinnett County.

Notwithstanding Lopez’s attempt to parse the evidence, we find that, taken as a whole and construed to support the verdict, this and other evidence presented at trial was sufficient to establish venue in Gwinnett County beyond a reasonable doubt. State v. Prescott, 290 Ga. 528, 529-530 (722 SE2d 738) (2012); Gaston v. State, 317 Ga. App. 645, 649 (2) (731 SE2d79) (2012);Boyd v. State, 314 Ga. App. 883, 885 (2) (726 SE2d 135) (2012); Hargrave, 311 Ga. App. at 854 (1); Stegall, 308 Ga. App. at 666-667 (2).

3. Lopez also challenges the sufficiency of the evidence to convict him of rape. Pursuant to OCGA § 16-6-1 (a) (2), “[a] person commits the offense of rape when he has carnal knowledge of... [a] female who is less than ten years of age.” And “[c]arnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.” OCGA § 16-6-1 (a). “Under the established rule in this State, the penetration... necessary to constitute rape... need only be slight; it is not necessary that the vagina shall be entered or the hymen ruptured, but an entering of the anterior of the organ, known as the vulva or labia, is sufficient.” (Citations and punctuation omitted.) Payne v. State, 231 Ga. 755 (1) (204 SE2d 128) (1974). Although the victim in this case stated that Lopez placed his biscuit, both on her biscuit, and in her biscuit, when specifically questioned during the police interview she said that Lopez placed his biscuit in her biscuit. Further, she told Proto that Lopez “takes his biscuit and puts it in my biscuit” and stated there was pain associated with this act. And the sexual assault examination revealed redness surrounding the vagina, and Proto testified that this redness was consistent with what the victim said Lopez did to her. We find this evidence, construed to support the jury’s verdict, was sufficient to support Lopez’s conviction for the offense of rape.

Decided December 21, 2012.

Brown & Gill, Angela B. Dillon, for appellant.

Daniel J. Porter, District Attorney, Samantha Routh, Franklin P. Clark, Assistant District Attorneys, for appellee.

4. Lastly, Lopez argues that the evidence was insufficient to convict him of aggravated child molestation and child molestation because the victim recanted her statements. However, her prior inconsistent statements to these witnesses were properly admissible as substantive evidence of Lopez’s guilt of the crimes charged, and it was for the jury to decide whether to believe the victim when she said she lied to these witnesses or whether to believe her original statements to them. Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982); see Cheek v. State, 265 Ga. App. 15 (1) (593 SE2d 55) (2003). The jury obviously chose to believe the allegations of molestation and rape, and the evidence presented was sufficient to support their verdict.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

       The victim’s mother was also charged with these crimes, but the trial court granted the mother’s motion for directed verdict at trial.

       Lopez was the boyfriend of the victim’s mother, and she also referred to him as “dad.”

       The transcript shows that the proper foundation was laid prior to the admission of these statements. See OCGA § 24-9-83.


text:
    A12A1704.
    VALLDEPARAS v. THE STATE.
    (735 SE2d 816)
   Adams, Judge.

Carlos E. Valldeparas appeals from the trial court’s dismissal of his pro se “Motion to Modify Sentence” as untimely. Valldeparas argues on appeal that the Superior Court of Gwinnett County erred, and his appointed counsel was ineffective, in failing to construe his motion as one for habeas corpus and thus in failing to address the motion on its merits.

While represented by retained counsel, Valldeparas pled guilty to four counts of child molestation on August 25, 2011, and the trial court sentenced him to forty years, to serve twenty. On September 20, 2011, and October 26, 2011, Valldeparas filed pro se “Motion[s] to Modify Sentence.” The first requested a reduction in the sentence to “a more reasonable judgment in order that he may continue his contribution to society and his family.” The second motion raised issues of equal protection and fairness, citing other sentences imposed for similar crimes, and once again asked the court, based upon his “work history with law enforcement, his limited criminal history and his age” to modify its sentence “to a more reasonable and fitting judgment in order that he may continue his contribution to society.” Both motions were denied by written order without a hearing.

On November 23, 2011, Valldeparas filed a third pro se “Motion to Modify Sentence” (the “Third Motion”). In this motion, Valldeparas asserted that his guilty plea was not “intelligently made or fully understood nor wholly voluntary, but undertaken while under duress, stress, and prolonged anxiety.” He further asserted that his plea counsel was ineffective “by withholding information, misrepresenting facts, and adding an unnecessary, unethical urgency to the decision making process.” Valldeparas also acknowledged that any attempt to withdraw his guilty plea was barred by the “restriction on motions and expired court terms,” in addition to “the loss of entitled legal counsel during this critical stage of the criminal proceedings.” His motion once again sought modification of his sentence.

Despite Valldeparas’s acknowledgment in the Third Motion that he could not seek to withdraw his guilty plea, the trial court denominated the motion as a motion to withdraw a guilty plea in its orders setting the matter for a hearing. The trial court also appointed an attorney to represent Valldeparas in connection with the Third Motion.

At the motion hearing in February 2012, Valldeparas’s attorney never addressed the Third Motion or the issues raised therein. Instead, he addressed the September 20,2011 motion, conceding that even if the trial court were to have construed that motion as one to withdraw a guilty plea, it would have been untimely because it was outside the term in which the plea had been entered. He noted that the trial court would have no choice but to deny that motion as untimely. Valldeparas explained, however, that he had not filed a motion to withdraw because “I understood that it was out of time____” Nevertheless, following Valldeparas’s attorney’s statement regarding his first pro se motion, the State moved to dismiss the Third Motion as untimely. And the trial court subsequently issued an order stating that it had construed the Third Motion as a motion to withdraw a guilty plea “[b]ased on the nature of the motion” and dismissed the motion as untimely.

1. We agree with Valldeparas that the trial court erred in interpreting the Third Motion as a motion to withdraw his guilty plea and in dismissing it as untimely. Valldeparas clearly expressed his understanding in his motion, and at the hearing, that the time had passed to file a motion to withdraw his plea and that he was not asserting such a motion.

Moreover, we agree with Valldeparas that the trial court should have looked past the form of the Third Motion to its substance to determine whether it could have been considered as a valid petition for habeas corpus. Valldeparas asserted in the Third Motion that his guilty plea was not fully understood, knowing or voluntary, but rather was entered under duress, stress and anxiety. The motion also asserted that he received ineffective assistance of counsel in the form of withheld facts, misrepresentations and undue time pressure at the time of entering his plea. The proper remedy for making a claim of ineffective assistance of counsel in connection with a guilty plea is “to move to withdraw the plea or, if the term of court in which the plea was entered has expired, to petition for a writ of habeas corpus.” (Citation omitted.) Beaver v. State, 308 Ga. App. 380, 382 (3) (707 SE2d 590) (2011). Here, because a motion to withdraw would have been untimely, the trial court should have considered whether it was appropriate to treat the Third Motion as a habeas petition. See Waye v. State, 239 Ga. 871, 875 (1) (238 SE2d 923) (1977) (petition for writ of coram nobis and/or motion to vacate plea should have been treated as a habeas petition where the petition/motion alleged that plea was not voluntary, was not knowingly made and the assistance of counsel was ineffective); Sims v. State of Ga., 230 Ga. 589 (198 SE2d 298) (1973) (same for petition for writ of coram nobis seeking to set aside a sentence on ground that defendant was insane at time of plea), overruled on other grounds, Parris v. State, 232 Ga. 687, 690 (208 SE2d 493) (1974) (same for petition for coram nobis on ground that defendant denied right to counsel at time of plea); Moss v. State, 255 Ga. App. 107, 108 (564 SE2d 516) (2002) (same where petition for writ of coram nobis alleged that Moss entered plea without being informed of his rights and no effort to ensure factual basis existed for plea). Compare Martin v. State, 240 Ga. 488 (241 SE2d 246) (1978) (Supreme Court treated motion to vacate and set aside as an extraordinary motion for new trial, and not as habeas petition where trial court lacked venue to consider habeas and defendant failed to file application in Supreme Court following the denial of the motion).

Accordingly, we reverse the trial court’s order dismissing the Third Motion as untimely and remand the case for a consideration of the motion on its merits. Upon remand, the trial court must determine whether the Third Motion could be considered to be a valid habeas petition, given the requirements for initiating such a proceeding. See OCGA § 9-14-1 et seq. If the Third Motion is construed as a habeas petition, it would have been timely because Valldeparas has four years from his felony convictions in which to initiate such proceedings. OCGA § 9-14-42 (c). If the Third Motion does not meet the requirements for a valid habeas petition, then the trial court would have no choice but to treat the motion as yet another motion to modify the sentence. Such a motion also would have been timely. See OCGA § 17-10-1 (f) (trial court retains jurisdiction for one year from the time the sentence is imposed to correct or reduce a sentence). Either way, therefore, Valldeparas is entitled to have his motion considered on its merits.

2. And although we note that Valldeparas’s motion counsel inexplicably failed to even mention the Third Motion at the motion hearing, we do not reach Valldeparas’s claim of ineffective assistance of counsel in this appeal given our holding above. In any event, the current appellate record is inadequate to address such a claim, and any remaining claim that motion counsel was ineffective would have to be addressed on remand.

Decided December 21, 2012.

Frances C. Kuo, for appellant.

Daniel J. Porter, District Attorney, William C. Akins, Assistant District Attorney, for appellee.

Judgment reversed and case remanded with direction.

Barnes, P. J., and McFadden, J., concur.

       See Matthews v. State, 295 Ga. App. 752, 754 (1) (673 SE2d 113) (2009) (motion to withdraw guilty plea must be filed in same term in which defendant sentenced; otherwise court lacks jurisdiction to consider motion).

       Apetition for coram nobis “is the ancestor of an extraordinary motion for new trial based on newly discovered evidence,” and the prerequisites for both “appear to be identical.” (Citations omitted.) Waye, 239 Ga. at 872-873 (1).

       The Third Motion in this case cannot be treated as an extraordinary motion for new trial because “[o]ne who has entered a plea of guilty cannot move for a new trial, as there was no trial.” (Citation and punctuation omitted.) Davis v. State, 274 Ga. 865, 866 (561 SE2d 119) (2002).

       For example, a petition for habeas corpus must be filed in the superior court of the county in which the petitioner is being detained, OCGA § 9-14-43, and Valldeparas listed his address on the Third Motion as the Gwinnett County Detention Center. Thus, the trial court must determine whether Valldeparas was indeed detained in Gwinnett County when he filed the motion.