author: Mikell, Judge.

text:
    A10A2316.
    WHITE v. THE STATE.
    (706 SE2d 570)
   Mikell, Judge.

In this case arising from a botched drug deal, a jury found Bobby White guilty of aggravated assault (three counts), attempted violation of the Georgia Controlled Substances Act, and possession of a firearm during the commission of a felony. He was acquitted of two counts of felony murder. White’s co-defendant, Quinton Newton, was found guilty of aggravated assault and possession of a firearm during the commission of a felony; this Court subsequently affirmed Newton’s conviction. White appeals the denial of his motion for new trial, asserting that the trial court erred in admitting hearsay evidence as a declaration of a co-conspirator; that absent the challenged hearsay evidence, the remaining evidence was insufficient to support his convictions for aggravated assault; that the trial court erred in denying his motion to sever; and that he received ineffective assistance of counsel. Discerning no error, we affirm.

On appellate review of a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or judge the credibility of witnesses, but determine only if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the offenses charged beyond a reasonable doubt.

Properly viewed, the evidence adduced at trial shows that on August 22, 2007, Anselmo Lozano arranged a drug deal between his supplier, Christopher Bryant, and White. Lozano testified that Bryant agreed to sell and White agreed to buy two pounds of marijuana for $2,400. With a shoebox containing the marijuana, Bryant drove Lozano and Newton, Bryant’s cousin, to the agreed-upon meeting place, a DeKalb County apartment complex, to complete the deal. Bryant told Lozano that he was bringing Newton along for “protection,” because Newton was armed.

At the apartment complex, the three men met up with White and David Montford, a friend of White’s. After White “checked out” the contraband in Bryant’s car, he complained that the price was too high. Bryant put his car in reverse to leave, but White reached into his pocket and pulled out a gun and started firing into the car, in an attempt to rob the men before they could drive away. Lozano testified that he got out of the car and ran for his life as soon as he saw White’s gun and heard gunshots. Although Bryant and Newton each denied having a gun, both men were observed returning White’s fire. In the ensuing gunfight, Bryant was shot in the back; however, he survived his wound and drove away from the scene with Newton. Montford died at the scene from multiple gunshot wounds.

White, Bryant, Newton, and Lozano were arrested. Bryant and Lozano pled guilty to charges related to this incident and testified as witnesses at the trial of White and Newton.

1. Montford’s girlfriend, Temika Johnson, testified that Mont-ford told her that “he was going somewhere with Bobby White.” Johnson further testified that as Montford left to meet White, he told her that he and White planned to meet “someone” to get “weed,” but actually they were “just going to rob him for it.” Johnson also testified that she heard White tell a friend that he was about to “make a move right quick,” meaning that he was going to rob or murder someone. White contends that the trial court erred in admitting Johnson’s hearsay testimony under the exception to the hearsay rule codified at OCGA § 24-3-5, which provides for the admissibility of declarations of co-conspirators, because there was no other evidence of a conspiracy between White and Montford. We disagree.

In order for an out-of-court statement to be admissible under OCGA § 24-3-5, “the [s]tate must make a prima facie showing of the existence of the conspiracy, without regard to the declarations of the co-conspirators.” “A conspiracy may be shown by proof of an agreement between two or more persons to commit a crime.” That such an agreement existed “may be established by direct proof, or by inference, as a deduction from acts and conduct, which discloses a common design on their part to act together for the accomplishment of the unlawful purpose”; and the “common design” may be shown by direct or circumstantial evidence. “Conduct which discloses a common design, even without proof of an express agreement between the parties, may establish a conspiracy.” Whether a conspiracy existed is a question for the jury to determine, and the jury may consider, as circumstances giving rise to an inference of the existence of a conspiracy, the defendant’s “[pjresence, companionship and conduct before and after the commission of the alleged offenses.”

Here, evidence independent of Montford’s declarations to Johnson authorized the jury to infer that White and Montford had entered into a conspiracy to rob Bryant, rather than to pay for the marijuana. First, there was evidence that White and Montford were companions. Lozano testified that Montford was a friend of White’s; and Johnson, who was Montford’s girlfriend and was pregnant with his child at the time of his death, testified that she had called White on her phone at Montford’s request on several occasions and that she could recognize White’s voice. Further, independent evidence showed that White and Montford were together at the scene on the day of the shooting. Michael Heard, a resident of the apartments, observed these events from his apartment on an upper floor. Heard testified that he saw White and Montford together at the apartments before Bryant’s car pulled up and before the shooting started. Lozano testified that Montford was with White at the meeting place; that when White and Montford approached Bryant’s car, they stood together, with White standing outside the back door on the driver’s side, and Montford standing behind White, next to the car’s taillight. Lozano further testified that White was trying to rob the occupants of the car. Heard testified that Montford had a gun in his hand as he lay dead on the ground; and that after Bryant and Newton drove away, White came and got this gun from Montford’s body. Heard could see the butt of another gun hanging out from White’s pants pocket.

The foregoing evidence was sufficient to authorize the jury to find that there was a conspiracy between White and Montford to rob Bryant and his companions. Accordingly, the trial court did not err in admitting the testimony of Johnson as to out-of-court declarations by co-conspirator Montford.

2. White asserts that because Johnson’s testimony as to Mont-ford’s out-of-court statements should have been excluded, the remaining evidence against him was insufficient to support his convictions for aggravated assault. In Division 1 above, we rejected White’s argument that Johnson’s testimony should have been excluded. We also reject White’s challenge to the sufficiency of the evidence.

Under OCGA § 16-5-20 (a), a person commits the offense of simple assault when he either “(1) [ajttempts to commit a violent injury to the person of another; or (2) [cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” A person commits aggravated assault if he commits assault “[w]ith a deadly weapon.” The indictment charged White with aggravated assault, in that White “did make an assault. . . with a handgun, a deadly weapon,” upon the persons of Bryant (Count 5), Lozano (Count 6), and Newton (Count 7). Overwhelming evidence adduced at trial, and summarized above, showed that White was at the scene, that White had a handgun in his possession, and that he drew his handgun and pointed it at Bryant, Lozano, and Newton as they were sitting in Bryant’s car, thereby placing them “in reasonable apprehension of immediately receiving a violent injury.” White points to conflicts in the testimony, but “[rjesolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.” The factfinder in this case was the jury. Accordingly, the trial court did not err in determining that the evidence was sufficient to support White’s convictions for aggravated assault.

3. White contends that the trial court erred in denying his request for severance and trying him together with his co-defendant, Newton. We disagree.

In a case such as this, involving a felony less than capital, the question of whether to sever the trials of co-defendants lies within the sound discretion of the trial court, and absent an abuse of that discretion, the trial court’s ruling on this issue will not be disturbed. The following factors are to be considered by the trial court in exercising its discretion: (1) Will the number of defendants create confusion as to evidence and law relating to each separate defendant? (2) Is there a danger that evidence admissible against only one defendant will nevertheless be considered against the other, despite the court’s instructions? and (3) Are the defenses of either defendant antagonistic to the defenses, or the rights, of the other?

Here, there was no danger of confusion because only two defendants were on trial, in connection with the same occurrence. There was no evidence admissible against White that was not admissible against Newton. White contends that the evidence against Newton was so overwhelming as to create a “spillover” effect on the jury, to the prejudice of White. However, this contention does not find support in the record. Lozano testified that he dealt directly with White in setting up the drug deal; that White took part in the drug deal; and that White tried to rob them when he pulled his gun on the occupants of Bryant’s vehicle. Lozano, Bryant, and Newton all testified that White pulled his gun and started shooting first. There was no testimony to the contrary, because Heard did not witness the start of the shooting. Heard testified that he saw a handgun on the dead man, Montford; that White came over and took this handgun; and that the butt of a gun was visible in White’s pants pocket.

Contrary to White’s contention, the fact that Newton elicited Johnson’s testimony concerning Montford’s out-of-court declarations as co-conspirator does not show prejudice. As we discussed in Division 1 above, Johnson’s testimony was admissible. Further, Lozano also testified that White and Montford were trying to rob the three occupants of Bryant’s car.

Even assuming that the defenses of the two defendants were antagonistic, “the mere fact that [co-defendants’] defenses are antagonistic is not sufficient in itself to warrant the grant of a separate trial absent a showing of harm.” “The burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.” White has failed to make such a showing. Accordingly, the trial court did not abuse its discretion in denying the motion to sever.

4. In his remaining enumeration of error, White contends that his trial counsel rendered ineffective assistance by failing to request a limiting instruction as to Johnson’s testimony regarding Mont-ford’s out-of-court declarations. In evaluating a claim of ineffective assistance of counsel, we apply the two-prong test set forth in Strickland v. Washington, White “must show that counsel’s performance was deficient and that, but for that deficient performance, there is a reasonable probability that the outcome of his trial would have been different.” On appellate review of the trial court’s ruling, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

White has failed to establish either prong of the Strickland test. As discussed in Division 1 above, evidence was presented at trial that Montford and White had entered into a conspiracy to rob Bryant and his associates of the marijuana that was the subject of the drug deal. White asserts that his trial counsel was ineffective for failing to request a limiting instruction or jury charge that the jury must determine whether a conspiracy between White and Montford existed based on evidence other than Montford’s declarations, and that only if they found that a conspiracy existed beyond a reasonable doubt, could the jury use Montford’s out-of-court statements against White. White has not cited any authority for the proposition that counsel’s failure to request such an instruction constitutes deficient performance.

At the hearing on White’s motion for new trial, his trial counsel testified that although he objected to Johnson’s testimony regarding Montford’s out-of-court statements, he did not recall requesting a limiting instruction and he did not know what instruction he might have requested. “Decisions as to which charges will be requested generally fall within the realm of trial tactics and strategy.” Although White’s trial counsel could not recall his specific reasons for not requesting a limiting instruction, White has nonetheless failed to show that trial counsel’s decision was not a reasonable trial strategy or that there is a reasonable probability that such a request would have affected the outcome of the trial.

During the charge conference, trial counsel specifically objected to the state’s requested jury instruction on conspiracy because it would confuse the jury and because White had not been indicted for conspiracy. The state then withdrew the requested charge. Thus, counsel made a strategic decision not to request a charge on conspiracy, on the ground that it might operate to White’s detriment. “As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” We conclude that counsel’s failure to request the limiting charge suggested by White was a reasonable trial tactic and did not amount to deficient performance. Further, White has not shown that he was prejudiced by his trial counsel’s failure to request the described charge, in light of the overwhelming evidence adduced against him.

We note that “the test regarding effective assistance of counsel is to be not errorless counsel, and not counsel judged ineffective by hindsight, but counsel rendering reasonably effective assistance.” Applying this principle to the present case, where the jury acquitted White on the felony murder charges against him, we cannot say that White was deprived of his right to effective assistance of counsel on the ground that counsel failed to request the limiting instruction suggested by White. The trial court’s finding on this issue is not clearly erroneous and must be affirmed.

DeCided February 22, 2011.

Chaunda Brock, for appellant.

Gwendolyn Keyes Fleming, District Attorney, Deborah D. Well-born, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

        Newton v. State, 303 Ga. App. 852 (695 SE2d 79) (2010).

        Al-Amin v. State, 278 Ga. 74 (1) (597 SE2d 332) (2004).

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

       OCGA § 24-3-5 (“After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all”).

       (Citation and punctuation omitted.) Dillard v. State, 272 Ga. App. 523, 527 (5) (612 SE2d 804) (2005).

       (Punctuation and footnote omitted.) Brooks v. State, 281 Ga. 14, 15 (2) (635 SE2d 723) (2006).

       (Punctuation and footnote omitted.) Id.

       Id.

       (Citation omitted.) Dillard, supra.

        Dickerson v. State, 280 Ga. App. 29, 31 (1) (a) (633 SE2d 367) (2006).

       (Punctuation and footnote omitted.) Id. at 31-32 (1) (a).

       See Copeland v. State, 266 Ga. 664-665 (2) (a) (469 SE2d 672) (1996) (conspiracy could be inferred from independent evidence).

       White did not challenge the trial court’s finding that Montford’s out-of-court statements were supported by sufficient “indicia of reliability.” See generally Stinski v. State, 286 Ga. 839, 849 (38), n. 2 (691 SE2d 854) (2010).

       OCGA § 16-5-21 (a) (2).

       OCGA § 16-5-20 (a) (2). See Moore v. State, 286 Ga. App. 313, 316 (1) (649 SE2d 337) (2007) (“the presence of a deadly weapon would normally place a victim in reasonable apprehension of being injured violently”) (citation and punctuation omitted).

       (Citation omitted.) Odett v. State, 273 Ga. 353-354 (1) (541 SE2d 29) (2001).

       See Jackson v. Virginia, supra.

       See OCGA § 17-8-4 (a).

        York v. State, 242 Ga. App. 281, 287 (3) (528 SE2d 823) (2000), citing Dixon v. State, 268 Ga. 81, 83 (2) (485 SE2d 480) (1997).

        Howard v. State, 279 Ga. 166, 171 (4) (611 SE2d 3) (2005).

       See id.

       See Williams v. State, 280 Ga. 584, 587 (3) (630 SE2d 370) (2006) (no error in trial court’s denial of motion to sever).

       See Character v. State, 285 Ga. 112, 118 (5) (674 SE2d 280) (2009) (even if hearsay testimony that defendant was at crime scene would not have been admissible in a separate trial, trial court’s refusal to sever was not prejudicial where other witnesses testified to same effect).

       (Citation omitted.) Howard, supra.

       (Citation and punctuation omitted.) Metz v. State, 284 Ga. 614, 616 (2) (669 SE2d 121) (2008) (trial court’s failure to grant severance, even if error, was harmless in light of overwhelming evidence of guilt) (id. at 617 (2) (b)).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       (Footnote omitted.) Jackson v. State, 282 Ga. 494, 497 (2) (651 SE2d 702) (2007).

       (Citation and punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       (Citation and punctuation omitted.) Scott v. State, 298 Ga. App. 376, 380 (4) (b) (680 SE2d 482) (2009).

       See Cruz v. State, 305 Ga. App. 805, 812 (3) (e) (700 SE2d 631) (2010).

       (Citations and punctuation omitted.) Dyer v. State, 295 Ga. App. 495, 498 (1) (672 SE2d 462) (2009).

       See Scott, supra at 381 (4) (b) (deficient performance not shown by attorney’s failure to request jury charge which could have operated to defendant’s detriment).

       See id. (defendant failed to show that he was prejudiced by counsel’s failure to request jury charges).

       (Punctuation and footnote omitted.) Martin v. State, 300 Ga. App. 419, 421 (3) (685 SE2d 399) (2009).

       White was indicted on three counts of felony murder, but the third count was dropped at the charge conference and was not presented to the jury.

       See id. (attorney rendered reasonably effective assistance where jury acquitted defendant on one of two charges against him). Accord Dixon v. State, 303 Ga. App. 517, 525 (6) (b) (693 SE2d 900) (2010) (to same effect); Powell v. State, 272 Ga. App. 628, 630 (2) (612 SE2d 916) (2005) (same).


source: Caselaw Access Project

author: Andrews, Judge. MCFADDEN, Judge,

license: Public Domain

text:
    A11A0059.
    ROBINSON v. THE STATE.
    (706 SE2d 577)
   Andrews, Judge.

On appeal from his conviction for child molestation, Michael Robinson argues that trial and first appellate counsel were ineffective. We affirm because these contentions have no merit.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the record shows that after having been kissed by Robinson on previous occasions, the 11-year-old victim and her friend walked to Robinson’s house, where he offered them removable tattoos and then indicated that the victim should go into his bedroom. As Robinson kissed the victim in the bedroom, the friend entered and encouraged the two to continue, at which Robinson put his hand down the victim’s pants, touching her buttocks. As Robinson moved his hand toward the front of her body, the victim became scared, told him to stop, and pulled his hand away. When the girls returned to the victim’s house, the friend told the victim’s mother what had happened, and police were called.

After a trial including Robinson’s testimony in his own defense, a jury found him guilty of one count of child molestation. He was convicted and sentenced to 20 years with 13 to serve. At the hearing on Robinson’s motion for new trial, first appellate counsel called six new witnesses: three neighbors, the victim’s mother’s employer, and two investigators. The trial court denied the motion for new trial.

On appeal, this Court twice remanded the case: so that new counsel could prepare the case, and for a second evidentiary hearing. As the parties agreed at the outset of the remand hearing, the only issue presented on remand was whether trial counsel was ineffective for failing to forward evidence to first appellate counsel. New counsel proffered statements from witnesses including Robinson’s mother, his sister, his brother, his uncle, and his grandmother. Of these witnesses, only the sister had not testified at trial. After the hearing, the trial court again denied Robinson’s motion for new trial.

1. The evidence outlined above was sufficient to sustain Robinson’s conviction. See OCGA § 16-6-4 (a) (defining child molestation); Jackson, supra.

2. Robinson asserts that trial counsel was ineffective in failing (a) to ask for a hearing on the admissibility of the victim’s videotaped statement; (b) to confront the victim at trial; (c) to question the qualifications and credibility of the expert who took the victim’s statement; and (d) to investigate and argue the credibility of other witnesses, including the eyewitness and the victim’s parents. Robinson also argues that (e) first appellate counsel failed to argue trial counsel’s ineffectiveness in failing to assert Robinson’s right to confront the victim.

To show ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Suggs v. State, 272 Ga. 85, 87-88 (4) (526 SE2d 347) (2000), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). More specifically, a defendant must show that trial counsel’s deficient performance created “a reasonable probability of a different outcome.” (Citation and punctuation omitted.) Cobb v. State, 283 Ga. 388, 391 (658 SE2d 750) (2008). The question of ineffectiveness is a mixed one of both law and fact: “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Suggs, 272 Ga. at 88 (4).

(a) OCGA § 24-3-16 provides:

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

As this Court has held, “OCGA § 24-3-16 does not require a hearing to determine indicia of reliability be held prior to receiving the testimony.” (Punctuation omitted; emphasis supplied.) Xulu v. State, 256 Ga. App. 272, 275 (4) (568 SE2d 74) (2002). “Moreover, there is no requirement that the trial court make a specific finding of sufficient indicia of reliability in order for the out-of-court statements of child victims to be admissible.” (Punctuation omitted.) Id.

It should be obvious that trial counsel was under no obligation to invoke his client’s legal right to a hearing designed to protect that client’s interests if the invocation of that abstract right would, in his professional judgment of the circumstances presented by a specific case, do actual harm to those interests. Raymond v. State, 298 Ga. App. 549, 551 (680 SE2d 598) (2009) (an appellate court will not second-guess counsel’s strategic decisions “[a]bsent a strong showing that counsel’s actions were not reasonable”). Here, counsel testified that he chose not to request a hearing under OCGA § 24-3-16 because he had never seen a victim’s statement declared inadmissible and because he did not want the delay resulting from such a request to give the State additional time to prepare its case. The trial court did not clearly err when it rejected Robinson’s attack on this decision.

(b) Likewise, the mere existence of a defendant’s right to confront a witness at trial cannot be taken to mean that it is always in his interest to do so. A defendant’s confrontation rights are not violated by his own counsel’s failure to call a child molestation victim to the stand if that victim is available to testify at trial. Williams v. State, 290 Ga. App. 841, 842 (1) (660 SE2d 740) (2008). It is also clear that a decision as to whether a witness should testify is within ‘ ‘the realm of specific decisions regarding trial strategy” to which we afford “wide discretion.” Muller v. State, 284 Ga. 70, 72 (663 SE2d 206) (2008). Here, trial counsel testified that he did not call the victim to the stand because he thought that her testimony would “have done more damage than help.” The trial court did not clearly err when it accepted counsel’s strategic judgment in the matter.

(c) The State’s direct examination at trial shows that the expert who took the victim’s statement was well qualified, with 15 years’ experience in assisting children and teenagers suffering from severe mental illness or trauma. To date, including the remand hearing and his brief on appeal, Robinson has not produced, proffered, or described any evidence to the contrary. Lenderman v. State, 271 Ga. App. 883, 886 (611 SE2d 135) (2005) (counsel could not be found ineffective in the absence of any proffer of testimony to contradict expert’s testimony that defendant was competent to stand trial).

(d) “Motions for new trial on the ground of newly discovered evidence are not favored and are addressed to the sole discretion of the trial judge, which will not be controlled unless abused.” (Punctuation omitted.) Merka v. State, 201 Ga. App. 471, 473 (2) (411 SE2d 357) (1991).

On remand, the trial court held that five witnesses’ statements proffered by first appellate counsel concerned the victim’s and her family’s poor reputation in the community, and were thus cumulative of evidence already introduced at trial, which included testimony by four out of the five. The trial court also held that the statement by Robinson’s sister, who had not previously testified, could only have had the effect of impeaching other defense witnesses. See Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) (1980) (newly discovered evidence must be “so material that it would probably produce a different verdict,” and “a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness”); Cobb, 283 Ga. at 391 (prejudice under Strickland requires a showing of a “reasonable probability of a different outcome”).

As we have noted, the victim’s own statement to the child advocacy expert showed that the eyewitness to the molestation both encouraged the defendant just before the act and reported the crime to the victim’s parents. The record also shows that counsel conducted an effective cross-examination of the eyewitness, exposing inconsistencies, misstatements, and inattention, including her comments on the case, whether Robinson was holding the victim, and whether he put his hands down her pants. And counsel was under no responsibility to attack the credibility of the victim’s parents when they had been called as witnesses for the defense.

More important, the record before us does not include a transcription of either Robinson’s opening or his closing argument. Without this information, and having reviewed the remainder of the record, we cannot categorize trial counsel’s handling of either the eyewitness or the victim’s family as defective, nor can we second-guess the trial court’s discretionary determination that all of the evidence proffered at the hearings on the motion for new trial went to the credibility of the witnesses. Merka, 201 Ga. App. at 472-473 (2) (no abuse of discretion in denying a motion for new trial where the new evidence was either cumulative, restated defendant’s testimony at trial, or served only to impeach the credibility of the victim).

Decided February 22, 2011.

(e) As we have held above, trial counsel could not have been ineffective for failing to call the victim as a witness. It follows that first appellate counsel could not have been ineffective for failing to assert this unmeritorious argument before or at the hearing on the motion for new trial. Davis v. State, 267 Ga. App. 245, 246 (2) (599 SE2d 237) (2004) (failure to make meritless motion cannot amount to ineffective assistance).

For all of the above reasons, the trial court did not err when it denied Robinson’s motion for new trial.

Judgment affirmed.

Phipps, P. J., concurs. McFadden, J., concurs specially.

MCFADDEN, Judge,

concurring specially.

I concur in the judgment only as to Division 2 (d). I concur fully in the remainder of the opinion.

The standard for granting a new trial on the basis of ineffective assistance of counsel is distinct from the standard for granting a new trial on the basis of newly discovered evidence. As detailed in the majority opinion, the two-prong standard for ineffective assistance is set out in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The standard for newly discovered evidence requires that six criteria be met:

(1) that the evidence has come to [the movant’s] knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. All six requirements must be complied with to secure a new trial.

(Citations and punctuation omitted.) Merka v. State, 201 Ga. App. 471, 472 (411 SE2d 357) (1991); Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) (1980).

Because it is important that those two standards remain distinct, I do not concur in the majority’s analysis. But as the evidence adduced at the new-trial hearings was insufficient to satisfy either prong of the Strickland standard, I concur in the judgment.

Katherine M. Mason, Sam B. Sibley, Jr., for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.


author: BARNES, Presiding Judge.

text:
    A10A2051.
    HICKSON v. THE STATE.
    (706 SE2d 670)
   BARNES, Presiding Judge.

Kelly Hickson was indicted for malice murder and related offenses for fatally shooting another man in the parking lot of an adult strip club. Hickson was tried before a jury, which acquitted him of the malice murder charge and of voluntary manslaughter as a lesser included offense of malice murder, but was unable to reach a verdict on the remaining charges. Following a second jury trial, Hickson was convicted of voluntary manslaughter as a lesser included offense of felony murder, aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. On appeal from the denial of his motion for new trial, Hickson contends that the trial court erred in admitting evidence of similar transactions in which he brandished a pistol during a verbal altercation; in admitting a certified felony conviction that listed the name of the defendant as “John O’Neal Jones”; and in charging the jury on voluntary manslaughter, given his acquittal of that offense in the first trial. He also argues that his defense counsel was ineffective for requesting a jury charge on voluntary manslaughter in the second trial. Lastly, Hick-son maintains that the trial court imposed a sentence upon him that failed to comport with the jury’s verdict. For the reasons discussed below, we affirm the judgments of conviction but remand with direction that the trial court correct the scrivener’s errors contained in the sentence.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the verdict.” Martinez v. State, 303 Ga. App. 166 (692 SE2d 766) (2010). So viewed, the evidence showed that in the early morning hours of September 12, 2004, Hickson, the victim, and two of the victim’s friends were standing in the parking lot of an adult strip club. Hickson and the victim were arguing with one another while the victim’s two friends watched the verbal confrontation. As the argument continued, Hickson pushed the victim, pulled out a handgun, and shot the victim in the abdomen. Hickson threw his gun away and fled from the scene. After the victim died as a result of complications from the gunshot wound, Hickson was arrested and charged with malice murder; two counts of felony murder (with aggravated assault and possession of a firearm by a convicted felon as the underlying felonies); aggravated assault with a deadly weapon; possession of a firearm during the commission of a felony; and possession of a firearm by a convicted felon. Hickson pled not guilty and claimed that the shooting was justified as an act of self-defense.

In the first trial, the jury acquitted Hickson of malice murder and of the lesser included offense of voluntary manslaughter but deadlocked on the remaining counts of the indictment. The trial court granted a mistrial on the remaining charges, and the State filed an amended indictment that removed the count for malice murder.

At the second trial, Hickson testified that during the confrontation in the parking lot, the victim grabbed him and then one of the victim’s friends pulled out a gun, leading Hickson to fear that the victim and his friends were going to attack him with deadly force. In contrast, the victim’s two friends testified that neither they nor the victim was armed that night. Other witnesses similarly testified that they did not see the victim or his friends with any firearms and did not see them act in a physically threatening manner toward Hickson. There also was testimony that no firearms, other than the one linked to Hickson, were recovered from the parking lot by police investigators. Additionally, in order to show Hickson’s course of conduct and bent of mind, the State presented evidence of prior instances in which Hickson had brandished a pistol during verbal altercations with other individuals.

Following the close of the evidence, the trial court charged the jury on, among other things, the affirmative defense of self-defense. The trial court also charged the jury on voluntary manslaughter as a lesser included offense of the felony murder counts, at Hickson’s request.

The jury acquitted Hickson of the two counts of felony murder but found him guilty of voluntary manslaughter as a lesser included offense of those counts. The jury also found him guilty of aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. Hickson moved for a new trial, and the trial court denied the motion. This appeal followed.

1. The evidence adduced at the second trial was sufficient to enable any rational trier of fact to determine that Hickson did not act in self-defense and that he was guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). While Hickson claimed that he shot the victim out of fear for his life, “[a] jury has unlimited discretion to accept or reject a defendant’s testimony as a whole, or to accept it in part and reject it in part.” (Punctuation and footnote omitted.) McGuire v. State, 243 Ga. App. 899, 900 (1) (534 SE2d 549) (2000). “Questions concerning the weight of the evidence and credibility of the witnesses were for the jury to decide.” Johnson v. State, 289 Ga. App. 206, 208 (656 SE2d 861) (2008).

2. Hickson complains that the trial court erred in admitting similar transaction evidence. Before the State can introduce similar transaction evidence, the trial court must conduct a hearing under Uniform Superior Court Rule 31.3 (B), and the State must make three affirmative showings as to each prior act. See Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

First, the State must demonstrate that it seeks to introduce such evidence for an appropriate purpose, such as illustrating appellant’s identity, intent, course of conduct, and bent of mind; second, the State must show sufficient evidence to establish that the accused committed the independent offense or act; third, the State must demonstrate a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

(Citations and footnote omitted.) Davis v. State, 244 Ga. App. 708, 711 (3) (536 SE2d 596) (2000). See Williams, 261 Ga. at 642 (2) (b). There is no requirement that the independent acts be identical to the crime charged; “[t]he proper focus is on the similarity, not the differences, between the separate crimes and the crime in question.” (Citation and punctuation omitted.) Waters v. State, 303 Ga. App. 187,190 (2) (692 SE2d 802) (2010). A trial court’s determination that similar transaction evidence is admissible is reviewed only for an abuse of discretion. Id.

Here, the similar transaction evidence showed that in December 2003, Hickson pointed a handgun at the brother of his former girlfriend during a verbal altercation. Then, in February 2004, Hickson pulled out a handgun and struck his former girlfriend in the head with it during a quarrel. In July 2005, Hickson again pulled out a handgun while arguing with his former girlfriend. The State offered this evidence to show Hickson’s course of conduct and bent of mind.

Hickson does not contest that the State met the first two prongs of the similar transaction test, i.e., that the evidence was introduced for an appropriate purpose and that there was sufficient evidence that he committed the other handgun incidents. Focusing on the third prong, he asserts that the three handgun incidents were too dissimilar to the crimes charged such that proof of the former did not tend to prove the latter. We are unpersuaded. The three incidents all involved circumstances in which Hickson pulled out a handgun during a verbal altercation, thereby demonstrating his “propensity to settle disagreements with a gun, to act violently and impulsively to disappointment or misunderstanding, and to resort to the use of a gun with little provocation.” Davis, 244 Ga. App. at 712 (3). With respect to the current charges, the other handgun incidents helped prove Hickson’s bent of mind and course of conduct, since the present incident likewise involved Hickson pulling out a handgun and drastically escalating what was a mere verbal altercation with little or no provocation for doing so. The trial court, therefore, did not abuse its discretion in admitting the similar transaction evidence. See Hayles v. State, 287 Ga. App. 601, 604 (2) (651 SE2d 860) (2007) (in case involving fatal shooting, prior instance in which defendant threatened someone with handgun during argument over money was admissible to show defendant’s propensity “to escalate disputes by pulling a weapon first”); Davis, 244 Ga. App. at 712 (3) (in armed robbery case, prior unprovoked use of firearm to threaten driver was admissible to show defendant’s bent of mind and course of conduct); Willis v. State, 214 Ga. App. 479, 480 (3) (a) (448 SE2d 223) (1994) (prior instance in which defendant fired gun during dispute over potato chips was admissible in case where defendant repeatedly fired gun during verbal confrontation).

3. Hickson next argues that the trial court erred in allowing the State to introduce a certified felony conviction that listed the name of the defendant as “John O’Neal Jones” to prove he was a convicted felon in possession of a firearm. Hickson further argues that because the certified felony conviction was inadmissible, the trial court should have granted his motion for a directed verdict of acquittal on the charge of possession of a firearm by a convicted felon.

Hickson’s arguments are without merit. The record clearly shows that Hickson admitted during his cross-examination by the State that he used the fake name “John O’Neal Jones” when he was arrested for the prior felony offense and conceded that he was the individual named in the certified felony conviction. It follows that the trial court did not err in admitting the certified felony conviction or in denying Hickson’s motion for a directed verdict of acquittal.

4. Hickson maintains that the trial court erred in charging the jury on voluntary manslaughter as a lesser included offense of felony murder in the second trial, in light of his acquittal of voluntary manslaughter as a lesser included offense of malice murder in the first trial. He contends that charging the jury on voluntary manslaughter, and his resulting conviction for that offense, violated due process and double jeopardy principles. We disagree under the circumstances of this case. As previously noted, Hickson requested the charge on voluntary manslaughter in the second trial. Thus, he cannot complain on appeal that the trial court delivered such a charge. See Gooch v. State, 259 Ga. 301, 303 (3), n. 2 (379 SE2d 522) (1989) (when requested by defendant, trial court’s delivery of charge on voluntary manslaughter “cannot be reversible error”); Hay les, 287 Ga. App. at 602 (1) (a) (defendant who requested charge on voluntary manslaughter could not complain on appeal when trial court gave charge); Brown v. State, 261 Ga. App. 115, 118 (582 SE2d 13) (2003) (“A criminal defendant may, through his conduct, relinquish his double jeopardy rights[.]”). See also United States v. Zavala, 839 F2d 523, 528 (9th Cir. 1988) (per curiam) (“A defendant may not raise the defense of double jeopardy to a charge on which he expressly agrees to be tried.”).

5. Hickson also contends that his trial counsel was ineffective for requesting the jury charge on voluntary manslaughter in the second trial.

The two-prong test for determining the validity of a claim of ineffectiveness of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency. If the defendant cannot satisfy either of the two prongs of the Strickland test, his ineffective assistance claim fails.

(Citation and punctuation omitted.) Martinez, 303 Ga. App. at 171-172 (4). The defendant “must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct, and that counsel’s decisions were made in the exercise of reasonable professional judgment.” (Citation and punctuation omitted.) Shaw v. State, 286 Ga. 229, 231 (2) (686 SE2d 760) (2009). And, as a general rule, “[t]rial strategy and tactics do not equate with ineffective assistance of counsel.” (Citation and punctuation omitted.) Johnson v. State, 283 Ga. App. 524, 533 (8) (b) (642 SE2d 170) (2007).

Hickson’s trial counsel did not testify at the hearing on the motion for a new trial, so we must presume that counsel’s decision to request the charge on voluntary manslaughter was strategic. See Johnson, 283 Ga. App. at 533 (8) (b). That the decision was a strategic one is likewise borne out by the transcript of the second trial. Prior to the commencement of the second trial, Hickson’s trial counsel requested a charge on voluntary manslaughter as a lesser included offense to felony murder, arguing that such a charge should not be “excluded on a double jeopardy basis” to the detriment of her client. Later, during the charge conference, the trial court informed Hickson that the charge on voluntary manslaughter would not be given unless he consented to it, in light of his prior acquittal on that charge. In response, Hickson expressly consented to the delivery of the charge and confirmed to the trial court that he had discussed the issue with his counsel and had determined that such a charge would be in his best interest. Upon inquiry from the trial court, Hickson’s trial counsel stated that she concurred with Hickson and reiterated that she had discussed the charge with her client.

“[Decisions about which jury charges to request are strategic and provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) Armstrong v. State, 292 Ga. App. 145, 148 (3) (664 SE2d 242) (2008). Likewise, “ [decisions regarding which defense or defenses to pursue at trial are a matter of strategy with which this [C]ourt will not generally interfere.” (Citation and punctuation omitted.) Coats v. State, 303 Ga. App. 818, 824 (3) (695 SE2d 285) (2010). Given that the record clearly shows that trial counsel made a strategic decision to request a charge on voluntary manslaughter, and because we cannot say that this decision was patently unreasonable, we affirm the trial court’s finding that Hickson failed to prove deficient performance. See Reid v. State, 286 Ga. 484, 487 (3) (b) (690 SE2d 177) (2010) (decision over whether to request charge on voluntary manslaughter was strategic one that provided no basis for reversal).

6. Lastly, Hickson argues that the trial court imposed a sentence upon him that did not comport with the jury’s verdict. We conclude that the written sentences contain scrivener’s errors that should be corrected on remand.

At the sentencing hearing, the trial court orally pronounced that Hickson’s sentence would be twenty years to serve on Count 1 (voluntary manslaughter as a lesser included offense of felony murder); five years to serve on Count 4 (possession of a firearm during the commission of a felony), to run consecutive to Count 1; and two years to serve on Count 5 (possession of a firearm by a convicted felon), to run concurrent with Count 1. The trial court further pronounced that Hickson’s convictions on Count 2 (voluntary manslaughter as a lesser included offense of felony murder) and Count 3 (aggravated assault with a deadly weapon) would be merged into Count 1 for purposes of sentencing.

Decided February 2, 2011

Reconsideration denied February 23,2011

Michael B. King, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

The trial court’s pronouncement of Hickson’s sentence was consistent with the jury’s verdict. The written sentences subsequently entered by the trial court, however, are not consistent with the court’s oral pronouncement because they appear to reference the six counts found in the original indictment, rather than the five counts found in the indictment as amended after the first trial. Specifically, the written sentence for Count 1, labeled “Murder,” is marked “Not Guilty” and provides no sentence relating to that count. The written sentences for the remaining Counts 2-6 reflect the sentences the trial court orally pronounced on Counts 1-5 of the amended indictment; additionally, the written sentence for Count 2 indicates that Hickson was found guilty of both felony murder and the lesser included offense of voluntary manslaughter.

The written sentences plainly do not conform to the trial court’s intentions as expressed at the sentencing hearing and appear to be misnumbered as the result of scrivener’s errors. Under these circumstances, we remand the case for the trial court to correct the errors in the written sentences. See Chaney v. State, 281 Ga. 481, 483 (2) (640 SE2d 37) (2007); Manley v. State, 287 Ga. App. 358, 360 (3) (651 SE2d 453) (2007); Harris v. State, 166 Ga. App. 202, 204 (4) (303 SE2d 534) (1983).

Judgment affirmed and case remanded with direction.

Blackwell and Dillard, JJ., concur.

       Although somewhat unclear from his brief, Hickson also appears to contend that the Georgia evidentiary rule for similar transaction evidence “violates the due process provision of the United States Constitution.” He cites no legal authority to support this broad contention. Furthermore, the three-pronged evidentiary rule applicable in Georgia is based on binding precedent of the Supreme Court of Georgia, see Williams, 261 Ga. 640, to which this Court must defer. See generally Mattox v. State, 196 Ga. App. 64, 65 (1) (395 3E2d 288) (1990).

       For the same reason, Hickson argues that the trial court should have granted his motion for a directed verdict of acquittal on the felony murder count in which possession of a firearm by a convicted felon was alleged as the underlying felony. But Hickson was acquitted of felony murder, and so he cannot show harm resulting from the trial court’s failure to grant him a directed verdict on that count. “There is no remedy for error without harm.” (Citation and punctuation omitted.) Hayes v. State, 276 Ga. App. 268, 271 (3) (623 SE2d 144) (2005). In any event, as explained infra, the certified felony conviction was properly admitted.


author: MILLER, Presiding Judge.

text:
    A10A1699.
    CITY OF ATLANTA et al. v. HARBOR GROVE APARTMENTS, LLC.
    (706 SE2d 722)
   MILLER, Presiding Judge.

On October 11, 2007, Harbor Grove, LLC (“Harbor Grove”), filed the underlying verified petition for declaratory judgment and mandamus against the City of Atlanta and Robert J. Hunter, in his capacity as Commissioner of the Department of Watershed Management of the City of Atlanta Bureau of Drinking Water (collectively the “City”). Harbor Grove alleged that Commissioner Hunter and the City improperly and illegally conditioned the sale of a water meter on a requirement that Harbor Grove extend the water main across the frontage of its property, a property beyond the City’s limits, although the water main had previously been extended to bring water there. Harbor Grove subsequently amended its petition to assert a claim for monetary damages. On cross-motions for summary judgment, Harbor Grove sought partial summary judgment against Commissioner Hunter and against the City alleging liability for damages arising out of the foregoing official act undertaken by Commissioner Hunter. Harbor Grove further alleged that Commissioner Hunter was personally liable under OCGA § 36-33-4 and that the City was vicariously liable on the theory that Commissioner Hunter acted as the City’s agent. For its part, the City sought summary judgment against Harbor Grove, arguing that Commissioner Hunter could not be held liable individually since he was sued in his official capacity and that the City was not vicariously liable for his acts. The trial court granted Harbor Grove’s motion, finding that Commissioner Hunter acted without legal authority which rendered him personally liable for its damages under OCGA § 36-33-4. Contemporaneously, the trial court denied the City’s motion for summary judgment.

The City appeals with respect to the grant of partial summary judgment for Harbor Grove only, contending that the trial court erred in finding Commissioner Hunter personally liable because he was not sued in his personal capacity. Alternatively, the City claims that the trial court erred in ruling that Harbor Grove established personal liability in Commissioner Hunter under OCGA § 36-33-4 as a matter of law and that it is not vicariously liable for Commissioner Hunter’s alleged violation of OCGA § 36-33-4. For the reasons that follow, we affirm in part and reverse in part.

“[0]n appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. This requires a de novo review of the evidence.” (Citations and punctuation omitted.) Rubin v. Cello Corp., 235 Ga. App. 250, 250-251 (510 SE2d 541) (1998).

1. The City challenges partial summary judgment for Harbor Grove as to liability for damages, contending that the trial court erred in finding Commissioner Hunter personally liable under OCGA § 36-33-4 because he was not sued in his personal capacity. We agree.

It is clear from the record that Harbor Grove’s initial action, styled as a Verified Petition for Declaratory Judgment and Mandamus, was filed against the City and Commissioner Hunter in his official capacity. Harbor Grove’s Amended Verified Petition and Second Amended Complaint likewise named the City and Commissioner Hunter in his official capacity as defendants. That Commissioner Hunter was sued in his official capacity is asserted in the body of each of Harbor Grove’s filings. It was in Harbor Grove’s Second Amended Complaint that Harbor Grove added its claim for damages under OCGA § 36-33-4, this also predicated upon alleged official action taken by Commissioner Hunter. Further, the record reveals that Harbor Grove served the City and the City of Atlanta Bureau of Drinking Water. There is no evidence of service upon any individual or of attempts to serve any individual in an individual capacity in the record. Even were it otherwise, Harbor Grove has neither alleged nor presented any evidence of a waiver of immunity as to the claimed official actions of Commissioner Hunter. See OCGA § 36-33-4 (“[0]f-ficers of a municipal corporation shall be personally liable to one who sustains special damages as the result of any official act of such officers if done oppressively, maliciously, corruptly, or without authority of law.”). Notwithstanding the provisions of OCGA § 36-33-4, Commissioner Hunter cannot be held personally liable in this case because he was not sued in his individual capacity.

‘‘[A] suit against a public employee in his or her official capacity is in reality a suit against the state.” (Citation omitted.) Ward v. Dodson, 256 Ga. App. 660, 662 (569 SE2d 554) (2002); see also Colvin v. McDougall, 62 F3d 1316, 1317 (11th Cir. 1995) (In determining the capacity in which a defendant is sued, courts should look to “the complaint and the course of proceedings.”). Given the pleadings of record, as above, we conclude that Commissioner Hunter was sued in his official capacity alone. “[T]he difference between an official capacity suit and an individual capacity suit is a big difference. And, in general, plaintiffs have a duty to make plain who they are suing and to do so well before trial.” (Citation omitted.) Id. at 1318. This Harbor Grove failed to do. Accordingly, the trial court erred in granting partial summary judgment to Harbor Grove against Commissioner Hunter individually. Rubin, supra, 235 Ga. App. at 250.

2. The City also contends that the trial court erred in finding it vicariously liable for Commissioner Hunter’s alleged violation of OCGA § 36-33-4. Citing provisions of the Atlanta City Code, the City argues by its appellate brief that “[t]he Atlanta City Council has delegated the management, administration and responsibility for the drinking water system, within and outside the territorial boundaries of the City of Atlanta to the Commissioner of the Department of Watershed Management” (the “Department”); that Commissioner Hunter was authorized to create rules and regulations to carry out his job responsibilities; and that such responsibilities included the frontage extension requirement at issue. Below the City also argued that “[mjerely because [the Department’s] policy was unwritten does not eviscerate [his] clear authority to have such a policy.” We are not persuaded.

As noted above, OCGA § 36-33-4 provides for personal liability of municipal officers for special damages sustained in consequence of any official act of such officers if done, among other things, without authority of law. In light of our disposition of Division 1, supra, personal liability in Commissioner Hunter is no longer at issue in this case. And because the City concedes that Commissioner Hunter acted officially by conditioning the sale of a water meter to Harbor Grove upon requiring Harbor Grove to extend its water main, as above, it remains to be determined whether he did so legally, and, if not, whether his employer, the City, is vicariously liable for the same.

“[T]o hold a chartered city liable for the negligent act of its servant or agent, the act complained of must be both within the corporate powers of the municipality and within the scope of employment of the servant or agent.” (Citation omitted.) Newton v. City of Moultrie, 39 Ga. App. 702, 703 (148 SE 299) (1929). Further, it is well settled that by operating a waterworks, the City is engaged in a private nongovernmental business (see Rutherford v. DeKalb County, 287 Ga. App. 366, 368 (1) (a) (651 SE2d 771) (2007)), and as such is liable to one injured as a result of the negligence of its employees acting in the scope of their employment, the city charter to the contrary notwithstanding. City of Rome v. Justice, 40 Ga. App. 196, 198 (149 SE 88) (1929).

Inasmuch as the “frontage extension” policy implemented by Commissioner Hunter was unwritten, it plainly was not in the nature of an ordinance setting out guidelines for consideration with sufficient specificity to give citizens notice of what was expected. See City of Hawkinsville v. Wilson & Wilson, Inc., 231 Ga. 110, 111 (2) (200 SE2d 262) (1973) (Cities may place conditions on the operation of a business enterprise in the exercise of their police powers, but to be valid, such conditions must be based on an ordinance “written with sufficient specificity to apprise all parties concerning the . . . required conditions” and the conditions “would have to apply uniformly to all persons and firms concerned.”); see also City of Buford v. Ward, 212 Ga. App. 752, 754 (1) (443 SE2d 279) (1994). Here, Commissioner Hunter acted officially upon implementing an unwritten policy while having the authority to make the applicable rules. Consequently, it is clear that Commissioner Hunter exercised unfettered discretion in conditioning the sale of a water meter to Harbor Grove as he did contrary to law.

“Georgia courts will hold an employer responsible for the conduct of its employee if the employee acted in the course of the employer’s business and with a desire to benefit the employer.” (Citation omitted.) Bennett v. United States, 102 F3d 486, 489 (III) (11th Cir. 1996) (applying Georgia law). The tort of an employee is within the scope of his employment if it is done in furtherance of the employer’s business. See, e.g., Atlantic &c. R. Co. v. Heyward, 82 Ga. App. 337, 339 (1) (a) (60 SE2d 641) (1950). Although undertaken without proper authority, as above, the implementation and enforcement of the frontage extension policy regarding the sale of water meters was clearly within the scope of Commissioner Hunter’s employment. Accordingly, the trial court did not err in ruling that because “the administration of the Department. . . , including the sale of water meters, was within the scope of Commissioner Hunter’s employment[,] . . . the City may be held vicariously liable for his actions taken without authority of law.”

3. In light of our disposition of Division 1, supra, we need not consider the City’s claim that the trial court erred in concluding that Harbor Grove established personal liability against Commissioner Hunter as a matter of law.

Judgment affirmed in part and reversed in part.

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

Decided February 23, 2011.

Laura Sauriol-Gibris, for appellants.

Smith, Currie & Hancock, Robert O. Fleming, Jr., Philip E. Beck, for appellee.

       See, e.g., City Code §§ 154-53 and 154-65. City Code § 154-53 provides:
      To assist in the successful performance of the functions and services enumerated in this article, there shall also be established a set of rules and regulations. The commissioner of the department of watershed management shall, subject to the direction and supervision of the mayor, be responsible for administering and directing the affairs and operations of the department of watershed management and shall be responsible for the establishment of such rules and regulations as the commissioner of the department of watershed management deems necessary to successfully perform operations and responsibilities of the department of watershed management.
      City Code § 154-65 provides:
      The water system may be extended beyond the territorial boundaries of the city pursuant to such terms as the mayor, with the approval of council, may establish. The commissioner of the department of watershed management shall be responsible for the administration and direction of that part of the city water system lying outside the territorial boundaries of the city and shall prepare rules and regulations necessary for the efficient and successful operation.


author: SMITH, Presiding Judge.

text:
    A10A1761.
    MALCOM et al. v. MORGAN COUNTY BOARD OF TAX ASSESSORS.
    (706 SE2d 583)
   SMITH, Presiding Judge.

Following a jury verdict in favor of the Morgan County Board of Tax Assessors (“the board”), Gregory and Lisa Malcom appeal, alleging as their sole claim of error the trial court’s denial of their motion for summary judgment. We affirm.

The record reveals that the Malcoms enrolled 43.78 acres of their property in a conservation use covenant for the production of hay and cattle. When during an inspection no cows or hay were found on the property, the board declared the Malcoms in breach of the conservation use covenant, notified the tax commissioner, and notified the Malcoms that it intended to assess a penalty against them. After the Morgan County Board of Equalization affirmed the decision of the board of assessors, the Malcoms appealed to the superior court. The parties subsequently filed cross-motions for summary judgment. The trial court denied the motions, and the case proceeded to a jury trial. A jury found that the Malcoms breached their conservation use covenant, and the trial court entered a judgment accordingly.

In their sole enumeration of error, the Malcoms complain that the trial court erred in denying their motion for summary judgment “as there was no genuine issue of material fact at the time of Motion for Summary Judgment that there was no breach of the conservation use covenant.” They requested that only specific portions of the record be transmitted to this court and did not include the trial transcript in that request.

This appeal is controlled by Self v. Hall, 233 Ga. App. 330 (503 SE2d 918) (1998), where this court held that

it is well settled that after verdict and judgment, it is too late to review a judgment denying a summary judgment for that judgment becomes moot when the court reviews the evidence upon the trial of the case. Thus, as appellants’ case went to trial and a jury entered a verdict against them which was accepted by the trial court, the propriety of their motion for summary judgment is a moot issue. Moreover, appellants elected not to file a trial transcript with this appeal. Where a trial transcript is necessary for review and an appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.

Decided February 23, 2011.

Lambert & Reitman, M. Joseph Reitman, Jr., for appellants.

(Citations and punctuation omitted.) Id. at 331.

The Malcoms are correct that “when a direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court.” Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) (271 SE2d 199) (1980); see OCGA § 5-6-34 (d). But the cases cited in appellants’ brief are not controlling here. In Coregis Ins. Co. v. Nelson, 282 Ga. App. 488 (639 SE2d 365) (2006), we held that the denial of the appellant’s motion for summary judgment was not moot as the result of the subsequent jury verdict. Id. at 489 (1). In that case, the trial court made certain rulings on summary judgment that were not considered in the subsequent trial which was limited only to damages. Id. at 489-490 (1). Here, the Malcoms sought summary judgment on the very issue considered and decided by the jury: whether the Malcoms breached the conservation use covenant.

Schirmer v. Amoroso, 209 Ga. App. 682, 683-684 (2) (434 SE2d 80) (1993), is also inapplicable here. In that case, we reversed the trial court’s denial of the appellants’ motion for new trial because there was no evidence to support the verdict and then held that the issue of summary judgment was therefore not moot. Id. at 683-684 (2). But unlike the appellants in Schirmer, the Malcoms do not challenge the jury verdict on appeal and did not include as a part of the record the transcript of the jury trial.

Under these circumstances, and as held in Self, supra, the propriety of the Malcoms’ motion for summary judgment is a moot issue. 233 Ga. App. at 331. Moreover, because they elected not to include a transcript of the jury trial, we must assume the judgment below was correct and affirm. Id.

Judgment affirmed.

Mikell and Adams, JJ., concur.

Christian G. Henry, for appellee.


text:
    A10A2149.
    GIBSON v. THE STATE.
    (706 SE2d 585)
   SMITH, Presiding Judge.

Gabriel Gibson appeals from his convictions for possession of a firearm during the commission of a crime, possession of marijuana with the intent to distribute, trafficking in MDMA (“ecstacy”), and trafficking in cocaine. In his sole enumeration of error, Gibson asserts that he is entitled to a new trial based upon ineffective assistance of counsel. We disagree and affirm.

The record before us shows that the State charged Gibson, Roosevelt Vines, Carla Fabian, and Jordan Cohen with identical drug-related crimes based upon drugs found in a car occupied by all four defendants. Fabian was driving the car, Vines was in the front passenger seat, Gibson was sitting in the right rear passenger seat, and Cohen was sitting in the passenger seat behind the driver. When a police officer first talked to Fabian after pulling her over in a traffic stop, he smelled an “overwhelming odor of marijuana.” The arresting officer testified that the marijuana smell was so powerful that he would find it hard to believe that anyone sitting in the car could not smell it.

When the officer searched the cargo area in the rear of the passenger compartment, he found a backpack containing 97 grams of crack cocaine, 29.1 grams of powder cocaine, 980 ecstacy pills, and 2.9 pounds of marijuana with a combined street value of $38,905. The backpack also contained: a fully-loaded 30-round .40 caliber Glock magazine; a plastic bag containing 36 rounds of .40 caliber ammunition; and a piece of paper on which Gibson had written the address of his girlfriend in Norcross, Georgia. Police found a Hi-Point 9mm semi-automatic pistol in the center console; a .40 caliber Glock on the floorboard near where Gibson’s feet had been before he exited the car; and a .40 caliber Taurus located under the center armrest of the back seat.

Cohen admitted to the police officers after his arrest that the .40 caliber Taurus belonged to him. Gibson admitted during his trial testimony that he owned the Glock and the Hi-Point.

Gibson testified that he first came to Georgia from New Orleans approximately six weeks before his arrest in order to flee Hurricane Katrina with his pregnant fiancée. After arriving in Georgia, Gibson lived with James Whitty, Cohen, and Vines in Hinesville, Georgia; his fiancée later left to live in Norcross, Georgia because she suspected drug transactions were taking place in the house based upon personal observations made while she lived in the home. Gibson admitted that he did not have a job or a car while he was living in Hinesville. He explained that he bought the Hi-Point 9 mm pistol in New Orleans for protection after Hurricane Ivan and that he took this gun with him from New Orleans to Georgia. He testified that he bought the Glock after he arrived in Hinesville because he discovered the Hi-Point pistol was defective.

At the time of his arrest, Gibson was driving back to Hinesville from a trip to Atlanta with Cohen, Vines, and Fabian. Cohen planned the trip, and Gibson testified that he went to visit his fiancée and sister and also to go to a firing range. He admitted that he did not see his fiancée or sister or go to the firing range on any of the three days he spent in Atlanta.

Gibson denied any knowledge of the drugs in the car and testified that he did not know how the piece of paper with his girlfriend’s address got into the backpack containing the drugs. He testified that he gave the piece of paper with his girlfriend’s address on it to Cohen because he planned to leave Hinesville a week later and wanted Cohen to have a way to contact him. He could not explain how the piece of paper made its way into the backpack with the drugs.

He admitted during cross-examination that when the backpack was filled with the drugs and ammunition there would be no room left over for toiletry items, shoes, or a Crown Royal bag. During direct, he testified that he did not pack his belongings (tennis shoes, toiletries, and a Crown Royal bag) in luggage for the trip to Atlanta, but instead kept them loose in the hatch compartment of the car during the drive to and from Atlanta. The arresting officer testified that he searched several other bags in the hatch compartment before finding the drugs in the backpack.

Finally, Gibson testified that Cohen admitted to a police officer on the scene that the drugs belonged to Cohen. This officer did not testify at trial, and no other police officer testified that Cohen admitted the drugs belonged to him.

Gibson asserts that his counsel was ineffective “for failing to object properly or move for a mistrial when co-defendant’s counsel questioned Mr. Gibson about sentencing.” In Georgia, there is a “general prohibition against evidence advising the jury about the specific sentence that might be imposed against the defendant.” (Citation omitted.) Perkins v. State, 288 Ga. App. 802, 804 (655 SE2d 677) (2007). See also Howard v. State, 286 Ga. 222, 225-226 (2) (686 SE2d 764) (2009). This evidence “can be admitted only during cross-examination of a State’s witness who strikes a deal with the State to avoid prison time.” (Citation omitted.) Perkins, supra, 288 Ga. App. at 804.

The record shows that Gibson’s counsel objected to the first question posed by Cohen’s counsel about the potential sentence he could receive and the trial court overruled it. After Cohen’s counsel asked additional questions about Gibson’s potential sentences, the trial judge stopped the questioning sua sponte and excused the jury because he “wasn’t sure that the recitations counsel was making were accurate in terms of the sentence.” After discovering that counsel incorrectly asserted that one sentence carried a fifteen-year minimum when it was actually a five-year minimum, the trial court ruled that there could be “no more recitation of sentences, no more mandatory minimums.” When Cohen’s counsel asked for permission to “correct that with the jury,” the trial court ruled, “You’re not going to correct it. You’re not going to go into it again.” The trial court also denied co-defendant Fabian’s motion for a mistrial based upon the introduction of evidence of a sentence when there was no evidence of a deal with the State. Gibson’s counsel did not join in this motion.

When the jury returned to the courtroom after the trial judge’s eight-minute conference with counsel, the trial judge instructed the jury, “All righty. I sustained the objection to the last question, and it is struck, and the jury is instructed to disregard it. All right.” Neither Gibson’s nor any other defendant’s counsel objected to the adequacy of the trial court’s curative instruction.

To prevail on an ineffective assistance claim, Gibson must establish pursuant to Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984) that counsel’s performance was deficient as well as “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Citation and punctuation omitted.) Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009).

The ground for mistrial overlooked by Gibson’s counsel was a violation of the general procedural rule prohibiting cross-examination into potential sentences because a jury should consider only guilt and innocence. Perkins, supra, 288 Ga. App. at 802; State v. Vogleson, 275 Ga. 637, 640-641 (2) (571 SE2d 752) (2002). Because there was no evidence of any deal between Gibson and the State, the questions seeking information about Gibson’s potential sentences did not fall within the exception to the general rule created by the Supreme Court in Vogleson, 275 Ga. at 640 (1). The trial court’s curative instruction went only to the last question posed and was given only because Cohen’s counsel overstated the minimum sentence, not because the entire line of questioning was prohibited. It therefore appears Gibson’s trial counsel overlooked a ground for possible mistrial and an opportunity for a more detailed curative instruction. -

Decided February 23, 2011.

J. Scott Key, for appellant.

This missed opportunity, standing alone, will not warrant a new trial. Gibson must also show harm — “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Miller, supra, 285 Ga. at 286. Gibson’s appellate counsel argues that Gibson was harmed because the jury learned about the stiff sentences he could receive and therefore could have concluded that he had a motive to lie about his knowledge of the drugs. But, it could also be argued that the jury may have felt sympathy for Gibson based upon these same sentences and been more reluctant to convict him. Additionally, all of the defendants were tried together in this case for the same drug charges and were facing the same possible punishment. And, any incorrect information given to the jury about the length of the potential sentences would have impacted the jury’s view of the potential sentence faced by all of the defendants.

Based upon the speculative nature of any harm to Gibson arising from the jury’s knowledge of sentences he was facing, as well as all of the unusual facts and circumstances of this case, we conclude that Gibson cannot demonstrate a reasonable probability that the outcome would have been different if his counsel had moved for a mistrial or a more informative curative instruction.

Judgment affirmed.

Mikell and Adams, JJ., concur.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., David J. Younker, Assistant District Attorneys, for appellee.

       MDMA is a Schedule I controlled substance denominated “3, 4-Methylenedioxy-methamphetamine.” OCGA § 16-13-25 (3) (Z).

       The trial judge sentenced all four defendants to identical terms on the drug charges.

       We note that the prohibition against the jury learning about sentences during the guilt and innocence phase appears to have originated with a 1970 statute that was repealed in 1974. See Cloud v. State, 136 Ga. App. 244 (220 SE2d 763) (1975):
      [T]he reasoning of the court in Moore v. State, [228] Ga. 662, [665] (187 SE2d 277), ... to the effect: “To allow the jury to consider the various sentences for the various offenses authorized by the court’s instruction before a determination of guilt would be to repeal the intent of the legislation providing for a prior determination of guilt before considering punishment in felony cases,” would appear no longer to be applicable.”
      Id. at 246 (1).


author: MlKELL, Judge.

text:
    A10A2235.
    CONSTRUCTORES ASOCIADOS de VIVIENDA Y URBANIZACION, S.A. de C.V v. BENNETT MOTOR EXPRESS, LLC.
    (706 SE2d 726)
   MlKELL, Judge.

Following a bench trial, the trial court entered judgment in favor of Bennett Motor Express, LLC, on its contract claim against Constructores Asociados de Vivienda Y Urbanización, S.A. de C.V (“Constructores”) arising from its failure to pay Bennett on its bill of lading for a shipment from Washington State to Texas. Construc-tores appeals. Finding no error, we affirm.

“Appeals from bench trials, where the trial judge sits as the trier of fact and has the opportunity to assess the credibility of the witnesses, are reviewed under the clearly erroneous standard. And we will not disturb a trial court’s findings if there is any evidence to support them.”

Constructores and Bennett stipulated at the beginning of the bench trial that Bennett transported a trencher, which is a large piece of construction equipment, from Richie Brothers Auction in Olympia, Washington to Pharr, Texas, and eventually to a McAllen, Texas warehouse. It was further stipulated that Constructores was the owner of the trencher.

Viewed in favor of the trial court’s findings, the evidence showed that Constructores, a construction company which had conducted business in Salmolita, Mexico and Rio Bravo, Texas for over 20 years, purchased the trencher from Richie Brothers for $400,000 in 2008. Following the purchase, Constructores contacted its customs agent, BF Forwarding (BFF), to arrange for transportation of the trencher from Washington to Mexico. According to Jorge Bustamante, the owner of Constructores, “[t]he agency [BFF] takes care of everything.” Bustamante acknowledged that BFF showed him a proposal from World Trans America Transport, Inc. (WTA) for transporting the trencher and that Constructores authorized WTA to ship the trencher from Washington to Mexico. Constructores paid WTA $44,000 in two wire transfers for the shipment.

WTA issued a Carrier Rate Confirmation to Bennett to transport the trencher for $29,000. The confirmation, which was signed by representatives of WTA and Bennett, stated that the load would be delivered to BFF in Pharr, Texas. Bennett then issued its bill of lading listing- “Ritchie [sic] Bros.” in Washington in the shipper’s address block and Constructores in the consignee’s address block. The confirmation also stated that all charges were to be paid by the consignee and that it was subject to the rules tariff printed on the back. Paragraph 6 of the rules tariff is a forum selection clause providing that any action brought by the carrier against the “shipper, consignor, consignee, or any third party involved in the movement who has failed to pay such charges within 30 days of presentation of the freight bill, shall be brought in the State Court of Henry County Georgia.” It further provides that these parties consented to such forum selection and waived any defenses based on venue and lack of personal jurisdiction, among others.

Bennett delivered the trencher to BFF in Pharr, Texas, but Constructores, having already paid WTA, refused to make payment pursuant to the C.O.D. language on the bill of lading. Bennett’s truck carrying the trencher remained in Pharr for over seven days, at which time Bennett decided to deliver the trencher to a storage facility in McAllen, Texas, pending resolution of the payment issue. Bennett incurred and paid storage charges for three months until, on November 6, 2008, the trencher was released to Constructores in exchange for a $40,000 cash bond which was posted in the registry of the Hidalgo County Texas District Court.

Bennett then filed suit against Constructores in Henry County. Constructores filed its special appearance answer and defenses, asserting lack of personal jurisdiction. Thereafter, on March 19, 2009, Constructores filed its motion to dismiss for lack of personal jurisdiction. On August 31, 2009, the trial court entered its order denying Constructores’ motion based on the forum selection clause. Trial ensued, resulting in the judgment appealed.

Constructores’ sole enumeration of error is that the trial court

erred in finding that World Transamerica [sic] was the agent of Constructores, as such finding wrongfully permitted the [t]rial [c]ourt to determine that it exercised valid personal jurisdiction over Constructores via [Bennett’s] forum selection clause and that Constructores was contractually bound to pay [Bennett’s] freight charges.

Constructores’ argument is based on common law agency principles which have been found inapplicable to interstate commerce shipments such as this one. As found in Mitsui Marine &c. Ins. Co. v. Hanjin Shipping Co., “[t]he Kirby court plainly established a bright line default rule that ‘an intermediary binds a cargo owner to the liability limitations it negotiates with downstream carriers.’ Privity of contract is not required, nor is a traditional agency relationship.” The same rationale applies to forum selection and personal jurisdiction clauses as well, especially in light of Georgia’s policy favoring such clauses. This Court has adopted the United States Supreme Court’s ruling in The Bremen v. Zapata Off-Shore Co., that “forum selection clauses are prima facie valid and should be enforced unless the opposing party shows that enforcement would be unreasonable under the circumstances.”

Decided February 23, 2011.

Power, Jaugstetter & Futch, Patrick D. Jaugstetter, Lauren A. Thompson, for appellant.

Grant R. Brooker, for appellee.

To invalidate such a clause, the opposing party must show that trial in the chosen forum will be so inconvenient that he will, for all practical purposes, be deprived of his day in court. A freely negotiated agreement should be upheld absent a compelling reason such as fraud, undue influence, or overweening bargaining power.

Constructores, having enjoyed its day in court, obviously cannot meet this standard.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

       (Punctuation and footnote omitted.) Ellis v. Stanford, 256 Ga. App. 294, 297 (5) (568 SE2d 157) (2002).

       279 Ga. App. 689 (632 SE2d 467) (2006).

        Norfolk Southern R. Co. v. James N. Kirby, Pty Ltd., 543 U. S. 14 (125 SC 385, 160 LE2d 283) (2004).

       (Footnotes omitted; emphasis supplied.) Mitsui Marine &c., supra at 693-694.

       407 U. S. 1 (92 SC 1907, 32 LE2d 513) (1972).

       (Citations omitted.) SR Business Svcs. v. Bryant, 267 Ga. App. 591, 592 (600 SE2d 610) (2004).

       (Punctuation omitted.) Id., citing/ero v. Mohawk Finishing Products, 243 Ga. App. 670 (534 SE2d 136) (2000).


text:
    A11A0008.
    MORGAN v. THE STATE.
    (706 SE2d 588)
   Mikell, Judge.

Dennis Ralph Morgan appeals the denial of his plea of double jeopardy, contending that his probation revocation in state court for driving on a suspended license precludes his indictment in superior court for the offense of habitual violator arising out of the same incident. “The appellate standard of review of a grant or denial of a plea in bar of double jeopardy is whether the trial court’s findings support its conclusion.” Here, the superior court’s findings support its conclusion.

The record shows that on March 24, 2009, Morgan was arrested for driving under the influence of alcohol and failure to yield the right-of-way. On May 21, 2009, he entered a negotiated guilty plea in the State Court of Cobb County to reckless driving and failure to yield. He was given a 90-day suspended sentence plus 21 months on probation. As a condition thereof, Morgan was ordered to participate in the Cobb County DUI Court program. One week later, the Department of Driver Services notified Morgan that he had been declared a habitual violator based on two DUIs and a hit-and-run committed in other counties. Morgan was ordered to surrender his driver’s license.

On July 14, 2009, a warrant was issued for Morgan’s arrest for driving a vehicle after having been declared a habitual violator, in violation of OCGA § 40-5-58. The state court found that he violated his probation by driving on a suspended license and ordered him incarcerated for 30 days. Morgan was then indicted in superior court for operating a vehicle on July 14, 2009, after receiving notice that he had been declared a habitual violator. Morgan filed a plea in bar/motion in autrefois convict, alleging that the probation revocation in state court barred his prosecution on the indictment for the same offense in superior court. The superior court denied the motion, ruling that the state court’s revocation of Morgan’s probation was not a conviction of any crime arising out of his arrest on July 14, 2009, and his indictment was not barred on double jeopardy grounds. Morgan appeals.

The Double Jeopardy Clause provides three related protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

Simply stated, “the prohibition against double jeopardy pertains to subjecting an individual to criminal processes twice for the same offense.” Morgan argues that the probation revocation in state court constituted an adjudication of guilt on the offense of habitual violator so that he cannot be tried for that offense in superior court. We disagree. “The general and accepted rule in the state and federal courts is that a proceeding to revoke a probated sentence of one convicted of a criminal offense is not a criminal proceeding.” Indeed, “a criminal prosecution and a probation revocation proceeding based on the same occurrence actually have nothing to do with each other.” A fortiori, the revocation of Morgan’s probation based on the July 14, 2009, incident does not preclude his indictment for the offense of habitual violator arising out of the same incident.

Decided February 23, 2011.

Timothy A. Siler, for appellant.

Patrick H. Head, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       (Footnote omitted.) Chandler v. State, 305 Ga. App. 526 (699 SE2d 840) (2010).

       (Citations and punctuation omitted.) In the Interest of B. N. D., 185 Ga. App. 906, 907 (366 SE2d 187) (1988).

       (Citation omitted.) Morris v. State, 166 Ga. App. 137, 140 (2) (303 SE2d 492) (1983).

        Dutton v. Willis, 223 Ga. 209, 210 (154 SE2d 221) (1967). Accord Perry v. State, 213 Ga. App. 220, 221 (444 SE2d 150) (1994); Morris, supra.

       (Citation and punctuation omitted.) Morris, supra. Accord Johnson v. State, 142 Ga. App. 124, 127 (2) (235 SE2d 550) (1977) (probation properly revoked on same evidence on which jury acquitted defendant of criminal charge).


text:
    A11A0062.
    CAPITAL LAND USA, INC. et al. v. MITSUBISHI MOTORS CREDIT OF AMERICA, INC.
    (706 SE2d 590)
   MlKELL, Judge.

Appellee Mitsubishi Motors Credit of America, Inc. (“MMCA”), filed the underlying action against appellants Capital Land USA, Inc. (“Capital Land”), and Nassrollah Hakimi, alleging that Capital Land defaulted under its loan agreement with MMCA, and that Hakimi, as guarantor of Capital Land’s obligations under the loan agreement, failed to pay Capital Land’s indebtedness. Appellants answered and counterclaimed. MMCA moved for summary judgment as to all of its claims and as to all of appellants’ counterclaims. After a hearing, the trial court granted summary judgment in favor of MMCA and awarded it $103,141.54 in principal, $12,345.56 in accrued interest, and $90,805.29 in attorney fees. Appellants challenge the trial court’s ruling, asserting that the grant of summary judgment to MMCA was error and that the award of attorney fees was unreasonable under OCGA § 13-1-11. We affirm.

The record reflects that MMCA, a Delaware corporation with its principal place of business in California, provides financing to car dealerships. In November 2007, MMCA and Capital Land, a car dealership, entered into a Motor Vehicle Inventory Loan and Security Agreement (the “Loan Agreement”). Contemporaneously, Hakimi executed a guaranty in favor of MMCA, guaranteeing timely payment of Capital Land’s indebtedness under the Loan Agreement in the event of default. In December 2008, Capital Land defaulted under the Loan Agreement by failing to make timely payments, and Hakimi defaulted under the guaranty by failing to pay Capital Land’s indebtedness. The total outstanding indebtedness at the time of default was $673,063.48.

In December 2008 MMCA sued Capital Land and Hakimi for breach of their respective agreements. MMCA was able to mitigate its damages by selling the collateral securing the loan, thereby reducing the outstanding balance to $115,487.10. On February 4, 2009, appellants filed an answer and counterclaim, alleging breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, fraud, gross negligence, and intentional waste of Capital Land’s assets. In January 2010, MMCA moved for summary judgment and filed a supporting affidavit. Appellants, whose counsel had been permitted to withdraw in October 2009, did not respond to the motion or submit any evidence contradicting the evidence submitted by MMCA. In April 2010, appellants obtained new counsel, and a hearing was held on MMCA’s motion for summary judgment. MMCA subsequently filed another affidavit in support of its claim for attorney fees. On June 10, 2010, the trial court entered the order from which appellants appeal.

1. Appellants challenge the grant of summary judgment in favor of MMCA on its claims of breach of contract and breach of guaranty, contending that the trial court should have considered appellants’ pro se status and that appellants’ counterclaim raises “solid issues of fact.” However, appellants have failed to preserve this enumeration of error for our review.

Appellants assert that they have preserved this error “by oral argument on April 14, 2010,” and by filing an answer and counterclaim. We assume that appellants are referring to the hearing on MMCA’s summary judgment motion, which actually took place on April 21, 2010. Appellants elected not to include a transcript of this hearing in the record on appeal. “The burden is on the party alleging error to show it affirmatively by the record and when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.” Appellants filed no brief in the trial court in opposition to MMCA’s motion, and in the absence of a hearing transcript, we cannot determine which issues appellants actually raised in the court below. It is well established that this Court is “limited to considering only those grounds raised and ruled on below by the trial court and may not consider a basis for appeal not presented at the trial level.”

Moreover, “[appellants] may not rest on general allegations in response to [MMCA’s] motion for summary judgment, but must come forward with specific facts to show there is a genuine issue for trial.” In their appellate brief, appellants have failed to point with specificity to any fact issue raised by their counterclaim. Thus, this enumeration of error fails.

2. Appellants contend that the trial court erred in granting summary judgment to MMCA on all of appellants’ counterclaims, asserting that testimony at trial would raise issues of fact. But appellants have failed to support this enumeration of error with argument or citations of authority, so it is deemed abandoned. Further, in the absence of a transcript of the hearing on MMCA’s motion, we cannot tell whether this argument was raised in the trial court. Accordingly, for the reasons set forth in Division 1 above, appellants have waived consideration of this enumeration of error on appeal.

3. Appellants challenge the award of attorney fees to MMCA. Appellants argue, first, that the award exceeded that allowed as “reasonable attorney fees” under OCGA § 13-1-11 (a) (2); and, second, that the affidavit submitted by MMCA in support of the award was insufficient. For the reasons set forth in Division 1 above, appellants have waived appellate review of this enumerated error. The record contains no indication that appellants raised this issue or made these arguments before the trial court, and this Court cannot hear arguments raised for the first time on appeal. Further, appellants had ample opportunity to challenge the award of attorney fees in this case. The summary judgment hearing was held on April 21, 2010; MMCA filed its affidavit in support of attorney fees on April 28, 2010; and the trial court’s ruling was not entered until June 10, 2010. Although appellants had more than a month to raise these issues in the trial court, they failed to challenge either the amount or the reasonableness of the award before the trial court. Thus, appellants acquiesced in the trial court’s procedure and cannot complain of the award of attorney fees on appeal.

DeCided February 23, 2011.

S. Robert Hahn, Jr., for appellants.

Kilpatrick Stockton, Burleigh L. Singleton, Andrew C. Brandon, for appellee.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

        Nyass v. Tilahun, 281 Ga. App. 542, 544 (2) (636 SE2d 714) (2006).

       See id. Accord Steve A. Martin Agency v. PlantersFIRST Corp., 297 Ga. App. 780, 784 (2) (678 SE2d 186) (2009) (in absence of transcript, appellate court could not consider argument which appellant did not raise in brief before trial court).

       (Punctuation and footnote omitted.) AKA Mgmt. v. Branch Banking &c. Co., 275 Ga. App. 615, 619 (2) (a) (621 SE2d 576) (2005).

        Latson v. Boaz, 278 Ga. 113, 115-116 (598 SE2d 485) (2004), citing Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). See OCGA § 9-11-56 (e).

       See Latson, supra at 114, 115.

       See Court of Appeals Rule 25 (c) (2).

       See Hudson v. Easterling, 301 Ga. App. 207, 208 (2) (687 SE2d 163) (2009).

       See Steve A. Martin Agency, supra; AKA Mgmt., supra.

       See Murray v. DeKalb Farmers Market, 305 Ga. App. 523, 526 (2) (699 SE2d 842) (2010).