text:
    A12A1002.
    LAIBE CORPORATION v. GENERAL PUMP & WELL, INC.
    (733 SE2d 332)
   Dillard, Judge.

We granted Laibe Corporation’s (“Laibe”) application for interlocutory appeal to review the trial court’s denial of a motion to dismiss General Pump & Well, Inc.’s (“General”) complaint for, inter alia, improper venue and lack of personal jurisdiction. For the reasons set forth infra, we vacate the trial court’s denial of Laibe’s motion to dismiss and remand with direction.

The record reflects that General is a Georgia corporation and Laibe is an Indiana corporation. In May 2008, General filed a complaint against Laibe concerning the March 2005 purchase of a water-well drilling unit for $438,043. General alleged that the drilling unit failed to operate to design specifications, repeatedly broke or malfunctioned, and was not fit for the particular purpose for which it was intended. Thus, General alleged that Laibe had breached implied warranties of merchantability and fitness for a particular purpose, and sought damages in the amount of $74,500.

In response, Laibe sought removal to federal district court, but the case was remanded back to the state court. Laibe subsequently filed a motion to dismiss pursuant to OCGA § 9-11-12 (b) (2), (3), and (6), and admitted that it sold the water-well drilling unit to General but contended that the terms of the sale agreement barred General’s complaint. Laibe included a copy of the sales contract between the parties and argued that, pursuant to the agreement’s terms, (1) General failed to file suit within a specified limitations period; (2) General failed to state a claim upon which relief could be granted because the contract disclaimed the relevant warranties; (3) the trial court lacked personal jurisdiction; and (4) venue in Georgia was improper because the contract contained an enforceable forum-selection clause.

In response to the motion, General argued that the trial court could not consider the sales contract because its claims arose out of law, not from the contract, and because consideration of the contract would convert the motion to dismiss into a motion for summary judgment. General did not attach any affidavits or other evidence to its response. And before the court ruled on Laibe’s motion, General amended its complaint to add claims for negligent design, manufacture, service, and repair of the drilling unit.

The trial court conducted a hearing on Laibe’s motion to dismiss, during which no evidence or oral testimony was presented; and in May 2011, the trial court denied Laibe’s motion on each enumerated ground. Primarily, the trial court held that the sales contract between the parties did not apply because, pursuant to our Supreme Court’s decision in Bookholt v. General Motors Corp., General’s claims arose by creation of law and not from the contract. Further, the trial court held that even if the contract applied, the relevant provisions — i.e., disclaimer of warranties, limitations period, forum-selection clause— were “unenforceable as abhorrent to Georgia law.” The trial court issued a certificate of immediate review, and this appeal by Laibe follows.

Although Laibe argues that the trial court erred in denying its motion on each ground enumerated before that court, we vacate the trial court’s order because it erred in determining that the contract was inapplicable and, if applicable, that the forum-selection clause was unenforceable. Thus, our discussion below is concerned solely with that argument, and we need not address Laibe’s other enumerations of error.

1. To begin with, the trial court erred by determining that the sales contract between the parties was inapplicable to General’s complaint and, consequently, to Laibe’s motion to dismiss same. The trial court accepted General’s argument that our Supreme Court’s decision in Bookholt requires nonconsideration of a contract for the sale of goods when the purchaser makes claims for breach of the implied warranties of fitness and merchantability because those warranties arise as a matter of law, not contract. We disagree with this contention.

Georgia’s codification of the Uniform Commercial Code provides that, unless excluded or modified, warranties of merchantability and fitness for a particular purpose are implied in contracts for the sale of goods. And the UCC sets forth specific requirements for the exclusion or modification of warranties, including the implied warranties of merchantability and fitness for a particular purpose.

In Bookholt, our Supreme Court was faced with a challenge to the constitutionality of implied warranties and considered “whether the implied warranty created by [law] ... is contractual at all” with a determination that it was not. The Court noted that “the implied warranty adds nothing to the agreement of the parties, but simply states the legal consequences attached to a described transaction” and “is not dependent on any contract either in fact or by implication.” Further, the Court held that an implied warranty is “an obligation that the law places on a party as a result of some transaction entered into.” But the Court also recognized that an implied warranty can be disclaimed by agreement.

Having carefully considered the Supreme Court’s opinion, we do not share the trial court and General’s overly broad reading of Bookholt, because the language in that decision makes abundantly clear that the underlying contractual transaction is what triggers the legal obligations of implied warranties. Indeed, our Supreme Court has more recently explained that “the implied warranties of the UCC arise out of a contract for the sale of goods.” Thus, it would be patently absurd to conclude that the written contract, of which those warranties are a “legal consequence,” is irrelevant or inapplicable to a motion to dismiss a claim for breach of those warranties — especially when the written agreement is alleged to disclaim the same.

Furthermore, as to General’s argument that consideration of the written agreement would have converted the motion to dismiss into a motion for summary judgment, although this might have been true as to Laibe’s 12 (b) (6) arguments for failure to state a claim upon which relief can be granted, the consideration of matters outside the pleadings on a 12 (b) (2) or 12 (b) (3) motion to dismiss for lack of personal jurisdiction or improper venue does not convert the motion to one for summary judgment. Thus, the trial court erred in holding that it could not consider the sales contract when deciding whether to grant Laibe’s motion to dismiss.

2. Having determined that the sales contract was relevant and should have been considered by the trial court in assessing Laibe’s arguments regarding the forum-selection clause, we must now consider whether the trial court was correct that, even if considered, that provision was unenforceable.

Georgia has adopted the Supreme Court of the United States’s ruling 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.” Indeed, to invalidate a forum-selection clause, the party opposing the provision “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.” And, suffice it to say, a freely negotiated agreement “should be upheld absent a compelling reason such as fraud, undue influence, or overweening bargaining power.”

In the case sub judice, the contract between the parties includes a paragraph that contains, inter alia, the following language in all-caps:

YOU AGREE THAT THE COURT OF THE STATE OF INDIANA FOR MARION COUNTY OR ANY FEDERAL DISTRICT COURT HAVING THE JURISDICTION IN THAT COUNTY SHALL HAVE EXCLUSIVE JURISDICTION FOR THE DETERMINATION OF ALL DISPUTES ARISING UNDER THIS CONTRACT.

The trial court held that because this forum-selection clause was inapplicable — a decision which was erroneous for the reasons set forth in Division 1, supra — Laibe failed to carry its burden of proof. Additionally, citing to the Supreme Court of the United States’s decision in Carnival Cruise Lines, Inc. v. Shute, the trial court held in a footnote that because the language in the paragraph containing the forum-selection clause “cannot be fairly interpreted to extend the rights therein to both parties equally, it is fundamentally unfair and amounts to a bad-faith tactic intended to discourage pursuit of legitimate claims by [General].”

The trial court, presumably, was concerned with language that indicates that “[n]othing stated in this Contract is intended to prevent us [Laibe] from commencing any action in any court having proper jurisdiction.” But we do not viewthe above-quoted language as being fundamentally unfair or evincing bad faith on Laibe’s part. Indeed, in the very case relied upon by the trial court, our federal Supreme Court held that any suggestion of bad faith was belied by the fact that the selected venue was the principal place of the cruise line’s business, there was no evidence that accession to the clause was obtained by fraud or overreaching, and the plaintiff conceded to having notice of the provision.

Similarly here, there is a decided lack of evidence in the record to support any assertion that the forum-selection provision is unreasonable or that it resulted from fraud, overweening bargaining power, or undue influence. On appeal, General more or less argues that the language on the face of the contract evinces overreaching by Laibe. But as explained supra, General did not attach any affidavits or other evidence to its response to Laibe’s motion to dismiss, and the trial court did not hear oral testimony or receive other evidence at the hearing on the motion.

General presented no evidence that pursuing legal remedies in Indiana would be so inconvenient that the company would, “for all practical purposes, be deprived of [its] day in court.” Additionally, the relevant contract was entered into between two corporations, and the five-page contract — only two of which contain terms and conditions — -includes a separate signature from General’s owner, acknowledging “receipt of an exact copy of this contract and ... that you have read the warranty on the reverse side,” followed by a notation that “additional terms and conditions are detailed on the reverse side.” Thus, there is no evidence of fraud, overweening bargaining power, or undue influence because'General failed to present any competing evidence to show that the forum-selection clause should not be enforced. Therefore, the trial court erred in denying dismissal of the complaint for lack of personal jurisdiction and improper venue.

Decided October 9, 2012

Edenfield, Cox, Bruce & Classens, Susan W. Cox, Benjamin J. Colson, for appellant.

Callaway, Neville & Brinson, William E. Callaway, Jr., William J. Neville, Jr., for appellee.

Accordingly, for all the foregoing reasons, we vacate the trial court’s order denying Laibe’s motion to dismiss and remand for the entry of an order dismissing General’s complaint.

Judgment vacated and case remanded with direction.

Ellington, C. J., and Phipps, P. J., concur in judgment only.

        See OCGA § 9-11-12 (b) (6) (motion for failure to state a claim upon which relief can be granted).

       See OCGA § 9-11-12 (b) (2) (motionfor lack ofjurisdiction over the person); OCGA § 9-11-12 (b) (3) (motion for improper venue).

       215 Ga. 391 (110 SE2d 642) (1959).

        See OCGA § 11-2-314 (1) (“Unless excluded or modified . . . , a warranty that the goods shall he merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.”); OCGA § 11-2-315 (“Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified ... an implied warranty that the goods shall be fit for such purpose.”).

        See OCGA § 11-2-316; see also Bennett v. Matt Gay Chevrolet Oldsmobile, Inc., 200 Ga. App. 348, 350-51 (2) (408 SE2d 111) (1991) (discussing the requirements for disclaimer of warranties); Chrysler Corp. v. Wilson Plumbing Co., 132 Ga. App. 435, 437 (1) (208 SE2d 321) (1974) (same).

       215 Ga. at 392 (2).

        Id. at 393 (2).

        Id. at 394 (2).

        Id. (holding that the warranty implied by law exists “unless there is an agreement to the contrary”); see also Wilson v. Eargle, 98 Ga. App. 241, 250 (105 SE2d 474) (1958) (“We agree... that a contract which is ... drawn as to waive the implied warranties written into the sale by law should be clear and certain on that point. . ..”).

        See Bookholt, 215 Ga. at 392-94 (2).

        Ole Mexican Foods, Inc. v. Hanson Staple Co., 285 Ga. 288, 289 (676 SE2d 169) (2009).

        Cf. Brinson v. Martin, 220 Ga. App. 638, 640-41 (2) (469 SE2d 537) (1996) (rejecting argument that forum-selection clause in contract did not apply to certain claims because “those claims do not arise out of the contract and involve parties who were not signatories to the contract” when it was “clear from [the] complaint that the claims arose either directly or indirectly from [the] contract”).

        See, e.g., Johnson v. RLI Ins. Co., 288 Ga. 309, 309 (704 SE2d 173) (2010) (“[W]e conclude that the language of OCGA § 9-11-12 (b) requires a reviewing court to treat a motion to dismiss for failure to state a claim upon which relief can be granted as a motion for summary judgment if matters outside the pleading are presented to and not excluded by the court.” (punctuation omitted)); Bd. of Regents of the Univ. Sys. of Ga. v. Ruff, 315 Ga. App. 452, 454 (1) (726 SE2d 451) (2012) (“If, on motion to dismiss for failure to state a claim, the trial court elects to consider matters outside of the pleadings, the motion shall be treated as one for summary judgment____” (punctuation omitted)). Compare Brown v. Gadson, 288 Ga. App. 323, 326 (3) (654 SE2d 179) (2007) (“The trial court’s order granting [appellee’s] motion to dismiss was based on the agreement of the parties, which was attached to and incorporated in the pleadings. As a result, the trial court’s consideration of the same did not convert the motion to dismiss to a motion for summary judgment.”). We note that Laibe did not file anything styled as an answer, but for purposes of resolving the issues on appeal, we need not determine whether Laibe’s motion to dismiss also constituted an answer. Compare Trammel v. Bradberry, 256 Ga. App. 412, 426 (9) (568 SE2d 715) (2002) (physical precedent only) (defendant’s motion to dismiss constituted an answer), with Turner v. State of Ga., 213 Ga. App. 309, 310 (3) (444 SE2d 372) (1994) (defendant’s motion to dismiss was not sufficient to constitute an answer).

        See, e.g., Church v. Bell, 213 Ga. App. 44, 45 (443 SE2d 677) (1994) (“Under OCGA § 9-11-12 (b),... only motions under OCGA § 9-11-12 (b) (6), failure to state a claim upon which relief can be granted, are converted to motions for summary judgment when matters outside the pleadings are considered.”); Behar v. Aero Med Int’l, Inc., 185 Ga. App. 845, 845 (1) (366 SE2d 223) (1988) (“A motion to dismiss for lack of personal jurisdiction is a motion in abatement and not a motion in bar. Thus, motions to dismiss for lack of personal jurisdiction cannot be disposed of as motions for summary judgment.” (citations omitted)).

       We note that although the contract between the parties also contains a choice-of-law provision, because the question concerning the forum-selection clause is one of procedure, we apply Georgia law. See Bunker Hill Int’l, Ltd. v. Nationsbuilder Ins. Servs., Inc., 309 Ga. App. 503, 506 (710 SE2d 662) (2011) (“Under the rule of lex fori, procedural or remedial questions are governed by the law of the forum, the state in which the action is brought. Specifically, and although the contract at issue here specifies that the contract should be construed according to [another state’s] law, the question of venue is a procedural one to which Georgia law applies.” (citation and punctuation omitted)); see also Brinson, 220 Ga. App. at 638-39 (1) (a) (“Contract provisions and statutes governing the place of bringing a suit do not affect the parties’ substantive rights, but rather are a matter of procedure. Thus, although under its own terms, the . . . contract dictates that it is to be construed according to [another state’s] law, because questions of venue are procedural, the rule of lex fori demands a different result.” (citation omitted)).

        Constructores Asociados de Vivienda y Urbanizacion, S.A. de C.V. v. Bennett Motor Express, LLC, 308 Ga. App. 67, 69 (706 SE2d 726) (2011) (punctuation omitted); see also Murray v. The Educ. Res. Inst., Inc., 272 Ga. App. 171, 172 (612 SE2d 23) (2005) (“In Georgia, both personal jurisdiction and venue forum selection clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable under the circumstances.”). See generally M/S Bremen v. Zapata Off-Shore Co., 407 U. S. 1 (92 SC 1907, 32 LE2d 513) (1972).

        Bennett Motor Express, 308 Ga. App. at 69 (punctuation omitted); accord Int’l Greetings USA, Inc. v. Cammack, 306 Ga. App. 786, 787 (703 SE2d 386) (2010).

        Bennett Motor Express, 308 Ga. App. at 69 (punctuation omitted); accord Int’l Greetings USA, 306 Ga. App. at 787.

        See Home Depot Supply, Inc. v. Hunter Management, LLC, 289 Ga. App. 286, 286 (656 SE2d 898) (2008) (“In Georgia, a defendant who files a motion to dismiss for lack of personal jurisdiction has the burden of proving lack of jurisdiction.”).

       4 99 U. S. 585 (111 SC 1522, 113 LE2d 622) (1991).

       We likewise reject General’s argument that the relevant language renders the forum-selection clause unenforceable as a permissive clause rather than a mandatory clause. See Ocwen Orlando Holdings Corp. v. Harvard Prop. Trust, LLC, 526 F3d 1379, 1381 (11th Cir. 2008) (“Apermissive clause authorizes jurisdiction in a designated forum but does not prohibit litigation elsewhere. A mandatory clause, in contrast, dictates an exclusive forum for litigation under the contract. Notwithstanding this oft-repeated taxonomy, courts have implicitly recognized an intermediate category that provides for permissive jurisdiction in one forum that becomes mandatory upon the party sued.” (citation and punctuation omitted)); Snapper, Inc. v. Redan, 171 F3d 1249, 1262 n.24 (III) (11th Cir. 1999) (“[T]he provision at issue in this case gives [the appellant] an absolute right to choose the forum. The contract may be considered ‘permissive’ in that it specifically allows [the appellant] to select the Georgia state courts, the federal district court for the Northern District of Georgia, or any other appropriate jurisdiction. The contract is ‘mandatory’ as to the [appellee], however, because it requires an absolute submission by them to the jurisdiction of whichever of these fora that [the appellant] chooses.”).

        Carnival Cruise Lines, 499 U. S. at 595 (IV) (A).

        See Alcatraz Media, LLC v. Yahoo! Inc., 290 Ga. App. 882, 884 (1) (660 SE2d 797) (2008) (“In Georgia, a defendant who files a motion to dismiss for lack of personal jurisdiction has the burden of proving lack of jurisdiction. And any disputes of fact in the written submissions supporting and opposing the motion to dismiss are resolved in favor of the party asserting the existence of personal jurisdiction.”).

        Bennett Motor Express, 308 Ga. App. at 69 (punctuation omitted).

        See Carter’s Royal Dispos-All v. Caterpillar Fin. Servs., Inc., 271 Ga. App. 159, 160-61 (1), (2) (609 SE2d 116) (2004) (concluding that there was no evidence of overweening bargaining power when there was “little evidence setting forth what transpired during the bargaining process,” no evidence that party opposing clause was misled as to terms of agreement, and no showing was made that foreign forum would be inconvenient so as to deprive of day in court); Antee Corp. v. Popcorn Channel, L.P., 225 Ga. App. 1, 2 (1) (482 SE2d 509) (1997) (affirming dismissal based on forum selection clause when the appellant made “no claims that its agreements with [appellee] were adhesion contracts, and there is nothing in the record which indicates any disparity of bargaining positions”); Brinson, 220 Ga. App. at 639-40 (1) (b) (concluding that record did not support assertion of no notice when contract was six pages long, contained fourteen enumerated paragraphs, and venue clause was conspicuous; and rejecting argument of disparate bargaining powers when nothing in the record addressed the relative bargaining positions of the parties or suggested that signor did not have the option of refusing to sign the contract containing the clause).

        See Lease Fin. Group v. Delphi, Inc., 266 Ga. App. 173, 175 (596 SE2d 691) (2004) (reversing trial court’s denial of motion to dismiss when there was no “evidence in the record regarding the relative bargaining power of the parties,” no evidence “to show that [the appellee] could not have suggested a modification to the agreement,” and forum-selection provision was not “concealed” in contract); SR Bus. Servs., Inc. v. Bryant, 267 Ga. App. 591, 592-93 (600 SE2d 610) (2004) (reversing trial court’s denial of motion to dismiss when plaintiff did not present evidence as to relative bargaining positions of parties and nothing in the record showed that plaintiff’s signature was the result of fraud or overreaching, or that the plaintiff “did not retain the option of refusing to sign the contract containing the clause”). Cf. M/S Bremen, 407 U. S. at 1912-13 (“There are compelling reasons why a freely negotiated private . . . agreement, unaffected by fraud, undue influence, or overweening bargaining power, such as that involved here, should be given full effect.” (footnote omitted)).


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A12A1151.
    KING v. THE STATE.
    (733 SE2d 21)
   Dillard, Judge.

Following a trial by jury, Shala King was convicted of failure to maintain lane, fleeing and attempting to elude, tampering with evidence, and misdemeanor obstruction. On appeal of these convictions, King argues that (1) the jury instructions failed to give the proper guidelines for determining guilt as to misdemeanor obstruction and (2) the evidence was insufficient as to failure to maintain lane, fleeing and attempting to elude, and tampering with evidence. For the reasons set forth infra, we affirm King’s convictions in part, reverse in part, and remand for resentencing.

Viewed in the light most favorable to the jury’s guilty verdict, the record reflects that on the night in question, two Holly Springs police officers were on patrol in a marked vehicle when they saw King’s car make a wide right turn, failing to maintain its lane. They continued to follow King and saw her vehicle drift into the other lane, at which point the officers activated the blue flashing lights on top of the patrol car in an effort to stop King. Nevertheless, King continued driving, passing what were, in the officers’ estimation, many safe places to stop her vehicle. As the patrol car followed behind with blue lights flashing, King made several turns down residential streets, and the officers activated the vehicle’s siren when it became clear that King was not stopping.

King eventually pulled into a residential driveway after traveling approximately 0.7 miles, and the officers approached her vehicle from both sides. As they did so, King opened her door and engaged in a verbal confrontation with one of the officers regarding her failure to pull over sooner, and King became agitated, throwing a box of cigarettes into the closest officer’s chest. The officer could smell burned marijuana inside King’s vehicle and directed her toward the back of the car to determine whether she also smelled of the substance, at which point the officers attempted to detain her. But King physically resisted and ignored the officers’ commands that she comply. The struggle that ensued brought King and the officers to the ground, and the officers then noticed that she was chewing something and again noticed a strong odor of burned marijuana on her person. Backup then arrived and assisted in restraining King while she remained on the ground.

Once King was restrained, the officers asked her to open her mouth because they suspected that she had consumed marijuana in an effort to conceal it. They detected a small patch of green leafy substance on her tongue, in her bottom teeth, and inside of her cheeks. A search of her person and vehicle revealed no illegal substances. Thereafter, King was convicted by a jury of the charges enumerated above. This appeal follows.

At the outset, we note that on appeal of King’s criminal convictions, “we view the evidence in the light most favorable to the jury’s verdict, and [King] no longer enjoys a presumption of innocence.” And we neither weigh the evidence nor assess witness credibility, “which are tasks that fall within the exclusive province of the jury.” With these guiding principles in mind, we turn now to King’s enumerations of error.

1. First, King argues that the trial court erroneously charged the jury as to the proper guidelines for determining guilt on misdemeanor obstruction. We disagree.

A person commits the offense of misdemeanor obstruction when he or she “knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties.” At the charge conference, the trial court indicated that it would incorporate into its misdemeanor-obstruction charge language from Russell v. State, in which we recited the statutory language and held that “to consummate an offense of misdemeanor obstruction, some form of knowing and wilful opposition to the officer sufficient to constitute obstruction or hindrance is required, but actual violence or threat thereof is not.” King entered no objection to this suggestion. Thereafter, the trial court charged the jury as to the statutory language and that “some form of knowing and willful opposition to the officer is sufficient to constitute obstruction or hindrance of a law enforcement officer,” and that “actual violence or threat is not required.” After the charge to the jury, King stated that she “had no exceptions.”

Under OCGA § 17-8-58, “[a]ny party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” But the failure to so object precludes “appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.” In such cases, as our Supreme Court has explained, “the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.” And because King failed to object to the jury instructions at trial, our review is limited to consideration in this regard.

Having so reviewed the trial court’s instruction as to misdemeanor obstruction, we determine that King has failed to overcome the high hurdle of establishing plain error. Although the trial court’s instruction differed slightly from the language set forth in Russell, the instruction was not obviously erroneous nor likely to have affected the outcome of the proceedings because the trial court correctly instructed the jury as to the statutory elements of obstruction— namely, that a person is guilty of misdemeanor obstruction when he or she “knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties . . . .” And when a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, “a reviewing court will not disturb a verdict amply authorized by the evidence.”

2. Next, King challenges the sufficiency of the evidence as to her convictions for failure to maintain lane, fleeing and attempting to elude, and tampering with evidence. We will address each of these contentions in turn.

(a) Failure to Maintain Lane. OCGA § 40-6-48 (1) provides that “[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety...At trial, the officers testified that King failed to maintain her vehicle within a single lane when making a wide right turn and then again after completing the turn. The jurors were also shown a video from the officers’ patrol car showing the maneuvers made by King’s vehicle. This evidence was sufficient to sustain the jury’s verdict.

(b) Fleeing and Attempting to Elude. Pursuant to OCGA § 40-6-395 (a), it is “unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop.” The officers testified at trial that King traveled 0.7 miles before bringing her vehicle to a stop after they engaged the emergency lights and siren on the patrol car, passing a number of safe locations to stop. King testified in her own defense and explained that her failure to stop was due to a spotlight the officers shined on her car, which made it impossible for her to see. Nevertheless, “[i]t was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence,” and the evidence was sufficient to sustain the jury’s guilty verdict on this count.

(c) Tampering with Evidence. A person commits the offense of tampering with evidence when he or she “with the intent to prevent the apprehension or cause the wrongful apprehension of any person or to obstruct the prosecution or defense of any person,... knowingly destroys, alters, conceals, or disguises physical evidence or makes, devises, prepares, or plants false evidence.” King was charged with committing this offense by knowingly destroying physical evidence, “to wit: alleged illegal drugs, said evidence involving the prosecution of the offense of possession of marijuana, with intent to prevent the apprehension of herself.”

After the struggle between King and the officers, the video of the traffic stop shows King on the ground, straddled by one officer for a lengthy period of time as they waited for backup to arrive. During the investigation that ensued after King was handcuffed and restrained, she complied with an officer’s request that she open her mouth, and the officer testified that he detected a small patch of green leafy substance on her tongue, in her bottom teeth, and inside of her cheeks. The video shows King complying with the officer’s request, the officer exclaiming that marijuana residue was in her mouth and having another officer look inside, and King denying that she consumed marijuana and protesting against repeated inquiries as to how much marijuana she had consumed. A search of her person and vehicle revealed no illegal substances or drug paraphernalia. At trial, King again denied possessing or consuming any marijuana and explained that any substance in her mouth was the result of the struggle with police on the ground.

The officers who testified both described their training in drug detection and identification, and their familiarity with burned and fresh marijuana. The first officer testified that the substance in King’s mouth looked consistent with fresh marijuana and that he did not “think to attempt to recover it” from her mouth because he “didn’t know that she wouldn’t bite down on [his] fingers ...,” and that Bang was not subjected to a blood test. The second officer also testified that the substance in King’s mouth was consistent with marijuana in that it was “a green leafy substance, dark in color” but “chewed up, so it was all separated.” The officer stated that it was not possible that the substance was food because it looked consistent with marijuana, which he had seen chewed up before. And when the State asked if he was “100 percent certain” that the substance was marijuana, he said that he was. Nevertheless, he admitted that there are common substances that look like marijuana. He also testified that he did not retrieve any of the substance from King’s mouth, because he “didn’t want to get [his] finger bit off” when King was “upset” at the time, and that no blood test was sought.

Neither party cites to Georgia law substantially similar to this case, and our research has returned nothing to suggest that the circumstantial evidence presented by the State is sufficient to sustain King’s conviction. Indeed, the facts of the case sub judice greatly differ from cases in which we (and courts in other jurisdictions) have sustained convictions for tampering with suspected drug evidence when other facts suggested that the substance was physical evidence that was destroyed with the “intent to prevent the apprehension .. . of any person or to obstruct the prosecution or defense of any person,” e.g., the officers witnessed the defendant place the substance in his mouth when he became aware of their presence, drug paraphernalia was recovered, the defendant refused to expel the substance from his mouth, and the illegal substance was recovered.

Here, although the officers testified that they smelled burned marijuana on King’s person and that the substance in King’s mouth was consistent with raw or fresh marijuana, the officers did not see King place the substance in her mouth, did not attempt to recover the substance, did not command King to remove the substance, did not test King’s blood or urine for marijuana, and did not recover any drugs or drug paraphernalia from her person or vehicle. Additionally, the videotaped stop shows King repeatedly complying with the officer’s request that she open her mouth for inspection with a flashlight.

The State’s only evidence was the officers’ testimony that the substance in King’s mouth was consistent with marijuana, but this is insufficient to establish that fact beyond a reasonable doubt. Without some other evidence to show that the substance in King’s mouth was (1) physical evidence and (2) placed there with the intent to prevent her apprehension or prosecution, the State’s circumstantial evidence failed to exclude all other reasonable hypotheses except that of guilt, as is required by Georgia law.

Decided October 9, 2012.

Gregory A. Hicks, Amanda R. Gaddis, for appellant.

David L. Cannon, Jr., Solicitor-General, for appellee.

Accordingly, we affirm King’s convictions for misdemeanor obstruction, failure to maintain lane, and fleeing and attempting to elude; reverse King’s conviction for tampering with evidence; and remand to the trial court for resentencing.

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

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

        See, e.g., DeLong v. State, 310 Ga. App. 518, 518 (714 SE2d 98) (2011).

       The driveway belonged to King’s friend, whose home was King’s destination that night as she drove to deliver a flower and banner from the grave of the friend’s mother, whose funeral had taken place earlier in the day.

        DeLong, 310 Ga. App. at 519-20.

         Id. at 520 (punctuation omitted).

       OCGA § 16-10-24 (a).

       243 Ga. App. 378 (532 SE2d 137) (2000).

        Id. at 382 (4) (punctuation omitted).

       OCGA § 17-8-58 (a).

       OCGA § 17-8-58 (b).

        Alvelo v. State, 290 Ga. 609, 615 (5) (724 SE2d 377) (2012) (punctuation omitted).

        See OCGA § 17-8-58 (b); see also White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012); State v. Kelly, 290 Ga. 29, 31-32 (1) (718 SE2d 232) (2011).

        See Kelly, 290 Ga. at 32 n.2 (1) (“[P]arties should be advised that the hurdle to establishing plain error is high . . . .”).

        Daniel v. State, 296 Ga. App. 513, 518 (3) (675 SE2d 472) (2009) (punctuation omitted).

        See Harris v. State, 272 Ga. App. 650, 651 (613 SE2d 170) (2005) (noting that there was sufficient evidence of failure to maintain lane when officer “observed that [the defendant] was failing to maintain his lane in that the passenger side tires of the vehicle would break the double white lines of the lane”).

        Wilkins v. State, 291 Ga. 483, 484 (1) (731 SE2d 346) (2012) (punctuation, omitted).

        See Dixson v. State, 313 Ga. App. 379, 383-84 (3) (721 SE2d 555) (2011) (sufficient evidence when defendant failed to stop after officer “activat[ed] his blue light,... bumped his siren several times during the pursuit, and eventually activated his siren” (punctuation omitted)); Weir v. State, 257 Ga. App. 387, 388 (571 SE2d 191) (2002) (sufficient evidence when defendant continued to drive 0.5 miles to his apartment complex before stopping).

       OCGA § 16-10-94 (a). The statute further provides that “[ejxcept as otherwise provided in... subsection [(c)], any person who violates subsection (a) of this Code section involving the prosecution or defense of a misdemeanor shall be guilty of a misdemeanor.” OCGA § 16-10-94 (c).

       Although the State also charged King with possession of marijuana (less than one ounce), that charge was dropped prior to trial.

       King also testified that the sweatshirt, which officers testified smelled like burned marijuana, did not belong to her and had been borrowed from her cousin earlier in the evening. The video of the stop shows her making this same claim on the night in question.

        See OCGA § 16-10-94 (a).

        See Jackson v. State, 306 Ga. App. 33, 34 (1) (701 SE2d 481) (2010) (officers entered room and saw defendant stuffing bag of marijuana into his mouth, and bag was retrieved after defendant was subdued); Dulcio v. State, 297 Ga. App. 600, 601 (677 SE2d 758) (2009) (as officers approached, defendant ripped open bag and shoved contents into his mouth; defendant vomited up cocaine and officers recovered plastic bag that contained substance and other bags of cocaine); Phillips v. State, 242 Ga. App. 404, 404-05 (530 SE2d 1) (2000) (sufficient evidence for jury to infer that defendant attempted to destroy cocaine when officers saw her standing near sink with water and disposal running, she told officers that cocaine was in the sink, and officers recovered a piece of plastic bag with cocaine residue); Parrish v. State, 182 Ga. App. 247, 247, 250 (5) (355 SE2d 682) (1987) (when officers arrived on property, they observed twelve 5-foot tall marijuana plants and instructed defendant not to destroy plants, but plants had been pulled and only a few leaves were found when officers returned); see also McKenzie v. State, 632 S2d 276, 276-77 (Fla. Dist. Ct. App. 1994) (after officers approached and said defendant was under arrest for possessing suspected rock of cocaine, defendant placed rock in his mouth, refused to expel it, chewed, and swallowed); State v. Childress, No. 24345, 2009 WL 388215, at *2-3 (Ohio Ct. App. 2009) (after officers arrived to execute search warrant, defendant told them he needed to be hospitalized because he swallowed methamphetamine, repeated the assertion at the hospital, and exhibited symptoms of meth ingestion); State v. Hollis, No. 2004CA00207, 2005 WL 724577, at **1, 3-4 (III, IV) (Ohio Ct. App. 2005) (during course of arrest, officer saw defendant take small plastic bag from pocket and swallow it, and defendant later admitted to swallowing crack cocaine and smoking crack prior to arrest); Commonwealth v. Morales, 669 A2d 1003, 1004-06 (Pa. Super. Ct. 1996) (defendant observed various buyers hand defendant money in exchange for blue glassine packets of suspected heroin, and when officers began to pursue defendant, he placed a blue packet in his mouth; defendant refused to remove from mouth and instead swallowed); Harris v. State, No. 12-07-00279-CR, 2008 WL 2814879, at *1 (Tex. App. 2008) (defendant admitted to officers that he had a marijuana “roach” in mouth, officers observed green leafy substance consistent with marijuana, and defendant chewed and swallowed substance); Nichols v. State, No. 05-03-01224-CR, 2004 WL 1447706, at *1-2 (Tex. App. 2004) (sufficient evidence of tampering when drug paraphernalia was found in defendant’s car and, during subsequent investigation, defendant initially refused to open mouth, officers saw small plastic bag inside, and defendant swallowed bag when ordered to expel); Lewis v. State, 56 SW3d 617, 619-20, 624-26 (Tex. App. 2001) (during traffic stop, officers saw defendant chew small plastic bag; defendant refused to expel item from mouth and continued to chew, but officers eventually recovered, by force, white residue and a bag containing green leafy substance, and hospital removed additional bag). Cf. Taylor v. McDonough, No. 3:05cvl35/RV/ EMT, 2007 WL 189389, at *3-5 (N.D. Fla. 2007) (officer stopped vehicle, asked defendant if he had anything in his mouth, and defendant began to swallow hard, officer grabbed defendant and saw rock of cocaine in mouth, and defendant swallowed rock; defendant’s saliva tested positive for crack cocaine); Smart v. State, No. A-8336, 2003 WL 122456, at *1-2 (Alaska Ct. App. 2003) (although sufficiency not at issue, affirming conviction for tampering when defendant grabbed plastic baggie from officer, swallowed it, told officer he had ingested heroin, was treated for potential overdose, and urine tested positive for consumption of amphetamines, cocaine, and heroin derivatives); State v. Jennings, 666 S2d 131, 132 (Fla. 1995) (reversing dismissal of tampering charge when defendant threw suspected rocks of cocaine into his mouth and swallowed them after law enforcement shouted “police” and approached); Thomas v. State, 726 S2d 369, 370 (Fla. Dist. Ct. App. 1999) (although sufficiency not at issue, affirming conviction for tampering when officers stopped car and defendant placed suspected rock of cocaine in his mouth and washed it down with a beer); Bridges v. State, No. 08-01-00462-CR, 2003 WL 21357551, at *2 (Tex. App. 2003) (finding, in context of probation revocation, that State showed tampering by preponderance of the evidence when, inter alia, officer suspected defendant had substance in his mouth during detention, defendant appeared to swallow substance when officer asked him to open mouth, defendant spit in patrol car, and saliva tested positive for cocaine).

        See supra note 21. We are unconvinced by the State’s argument that hand gestures Eng made from her vehicle support the conviction for tampering with evidence. Both officers testified that Eng waved from her window during the pursuit. One interpreted the gesture as a dismissive wave for the officers to leave her alone and said he assigned no meaning to the fact that her hand faced downward at one point, though he conceded it was a possibility that she could have disposed of something. However, when he returned to the areas where Eng’s hand came out of the window, he did not find anything. The other officer testified that he not know if “the gestures were for me to come around or for me to stop or for me to... follow....” On the video of the traffic stop, an officer can be heard indicating that King’s hand went out the window to block the side-mirror reflection of the spotlight that the officers were shining onto her vehicle. And at trial, Eng testified that she motioned out of her window for the officers to follow her, pointing to where she was headed.

        See Chambers v. State, 260 Ga. App. 48, 52 (579 SE2d 71) (2003) (“[T]he evidence showed that in the absence of conclusive, scientific tests, the possibility remained that the substance at issue was not marijuana. For this reason, we cannot affirm the marijuana possession conviction.”); Fuller v. State, 256 Ga. App. 840, 843 (3) (570 SE2d 43) (2002) (no positive identification that defendant possessed marijuana seeds, and no other drugs or drug paraphernalia were found on defendant’s person or in his vehicle); Adkinson v. State, 236 Ga. App. 270, 271 (1) (a) (511 SE2d 527) (1999) (reversing conviction for possession of marijuana when, despite opinion testimony that substance was marijuana, “no scientifically conclusive evidence was presented”); see also Phillips v. State, 133 Ga. App. 392, 392-94 (210 SE2d 858) (1974). Compare Dulcio, 297 Ga. App. at 601-02 (1) (officer testimony identifying substance as marijuana and defendant’s testimony referring to substance as marijuana sufficient); Willingham v. State, 296 Ga. App. 89, 90-91 (673 SE2d 606) (2009) (sufficient evidence of possession of marijuana when participant in drug transaction had personal knowledge and testified that bags contained marijuana); Cargile v. State, 261 Ga. App. 319, 320 (1) (582 SE2d 473) (2003) (holding that metabolites of marijuana in defendant’s urine constituted sufficient circumstantial evidence that defendant possessed marijuana even though State’s witness could not testify beyond a reasonable doubt that substance found in bedroom was marijuana and “no scientifically conclusive evidence was presented to identify the substance”); Atkinson v. State, 243 Ga. App. 570, 572-73 (1) (531 SE2d 743) (2000) (although no conclusive scientific evidence established that substance was marijuana, officers’ testimony identifying it as such and the discovery of drug paraphernalia was sufficient); Russell, 243 Ga. App. at 381 (1) (c) (sufficient evidence that substance was marijuana when officer testified without objection that “he performed two chemical tests as well as a visual test on the contents of the three packages found at the apartment and determined that they all contained more than one ounce of marijuana”).

        See supra note 21.

        See OCGA § 24-4-6 (“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”); see also Zamora v. State, 291 Ga. 512, 514 (2) (731 SE2d 658) (2012).


author: Miller, Presiding Judge.

text:
    A12A1187.
    DEUTSCHE BANK NATIONAL TRUST COMPANY v. HOBBS.
    (733 SE2d 27)
   Miller, Presiding Judge.

Deutsche Bank National Trust Company (the “Bank”), as trustee for Ameriquest Mortgage Company (“Ameriquest”), filed suit against Cheryl B. Hobbs to collect on a promissory note. In addition to collecting upon the note, the Bank sought to reform the deed securing the loan and requested a judicial foreclosure on the property listed in the security deed. Hobbs failed to answer the Bank’s complaint, and the Bank moved for a default judgment. The trial court granted the Bank’s motion for default judgment on the issue of collection upon the note. The trial court, however, denied the Bank’s motion on the issues of reformation of the security deed and judicial foreclosure. The Bank appeals, contending that the trial court erred in failing to grant a default judgment on all of its claims. Since Hobbs failed to move to open the default, the Bank was entitled to a default judgment on the issue of reformation. The Bank, however, was not entitled to a default judgment on the judicial foreclosure action because the trial court failed to issue the requisite rule nisi. Therefore, we affirm in part, reverse in part, and remand this case with direction for the trial court to issue a rule nisi for the judicial foreclosure action.

On appeal, we review a trial court’s order denying a motion for default judgment for an abuse of discretion. Edenfield & Cox, P. C. v. Mack, 282 Ga. App. 816 (640 SE2d 343) (2006).

The record shows that in February 2006, Hobbs executed a promissory note in exchange for a $105,544 loan from Ameriquest. In connection with the loan, Hobbs executed a security deed, conveying Ameriquest, its successors, and its assigns an interest in a property located in Savannah, Georgia. Thereafter, Ameriquest assigned and conveyed its interests to the Bank.

After Hobbs defaulted on the promissory note, the Bank filed the instant action against Hobbs. In its complaint, the Bank sought to collect the unpaid balance on the promissory note, as well as a judicial foreclosure on the Savannah property. The Bank further sought to reform the security deed, alleging that due to a scrivener’s error and mutual mistake of the parties, the security deed failed to include provisions authorizing nonjudicial foreclosure proceedings. In support of its reformation claim, the Bank cited a “power of sale” reference in the security deed; a “Waiver of Borrower’s Rights” attached to the security deed and allegedly executed by Hobbs, which acknowledged the lender’s power of sale through nonjudicial foreclosure; and the “Closing Attorney’s Affidavit” attached to the security deed, which stated that the attorney had explained to Hobbs the provisions of the security deed, including provisions authorizing the lender to sell the secured property through nonjudicial foreclosure. The Bank further alleged that it generally used a “Uniform Security Deed” to secure the indebtedness of borrowers, and it attached a sample of a Uniform Security Deed that contained the relevant nonjudicial foreclosure provisions the Bank wished to add to the security deed executed by Hobbs.

The Bank served Hobbs with the summons and complaint by sheriff’s service on May 31, 2011. Hobbs never filed an answer or any other defensive pleadings in response to the complaint. As a result, the case was automatically in default. On July 19, 2011, the Bank filed a motion for default judgment. Hobbs did not respond to the motion. The trial court granted the Bank’s motion for default judgment on the issue of collection upon the note, but denied the motion on the issues of reformation of the security deed and judicial foreclosure. On appeal, the Bank alleges the following errors.

1. The Bank contends that the trial court erred by concluding the Bank was not entitled to reformation of the security deed. We agree.

There is no dispute that the case is in default, and that the time for opening the default has already expired. OCGA § 9-11-55 (a) (providing that default may be opened as a matter of right by filing defenses within 15 days of default). When a case is in default, the plaintiff is entitled to judgment “as if every item and paragraph of the complaint or other original pleading were supported by proper evidence.” OCGA § 9-11-55 (a). “The failure to answer or to appear at trial serves as an admission of the facts alleged in the complaint, but not of the conclusions of law contained therein.” (Citations and punctuation omitted.) Fink v. Dodd, 286 Ga. App. 363, 365 (1) (649 SE2d 359) (2007).

Here, by failing to respond to the complaint, Hobbs is deemed to have admitted the facts alleged therein. Specifically, Hobbs admitted that she consented to authorizing the Bank to initiate nonjudicial foreclosure proceedings in the event of her default on the note. Hobbs also admitted that the parties intended to use a “Uniform Security Deed” that contained the nonjudicial foreclosure provisions that the Bank inadvertently omitted in this case. Moreover, Hobbs admitted that in executing the security deed, she granted the Bank the “power of sale” on the property. As a result of Hobbs’s default, the Bank demonstrated that due to a mistake, the security deed did not contain the nonjudicial foreclosure provisions, and that it was entitled to reform the security deed to include such provisions. See Curry v. Curry, 267 Ga. 66, 67-68 (1) (473 SE2d 760) (1996) (allowing reformation of the security deed where it was shown that due to a mistake, the deed did not reflect the true intent of the parties); Evans v. Merrill Lynch Business Financial Svcs., 213 Ga. App. 808, 810 (4) (446 SE2d 215) (1994) (language in deed referring to a “power of sale” was sufficient to authorize nonjudicial foreclosure). Therefore, the trial court erred in denying the Bank’s motion for default judgment on the issue of reformation.

2. The Bank also contends that the trial court erred in concluding that the Bank was not entitled to a judicial foreclosure since the Bank failed to provide notice to Hobbs as required. We disagree.

Upon the filing of a petition to foreclose on a mortgage, the trial court shall grant a rule nisi directing the mortgagor to pay the requested sums into court. OCGA § 44-14-180 (1), (2). “Where there is a total absence of a rule nisi in a mortgage foreclosure, as with a total absence of legal process in an ordinary suit,... the suit fails, and the mere filing of the petition will not suffice to authorize the action to be treated as commenced and pending.” York v. Edwards, 52 Ga. App. 388, 392 (183 SE 339) (1936).

In its complaint, the Bank specifically requested that the trial court issue a rule nisi pursuant to OCGA § 44-14-180 to commence the judicial foreclosure action. The trial court was required to issue the rule nisi, see OCGA § 44-14-180 (2), and it erred by failing to do so. Nevertheless, the Bank was not entitled to a default judgment on the foreclosure claim because such an action commences only with the issuance of a rule nisi. See York, 52 Ga. App. at 392. Accordingly, we affirm in part, reverse in part, and remand with direction for the trial court to issue a rule nisi on the judicial foreclosure claim in accordance with OCGA § 44-14-180.

Decided October 9, 2012.

Shapiro & Swertfeger, Denise R. Griffin, Heather M. Malick, for appellant.

Cheryl B. Hobbs, pro se.

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

Ray and Branch, JJ., concur.


text:
    A12A1223.
    HERNANDEZ v. THE STATE.
    (733 SE2d 30)
   Miller, Presiding Judge.

Following a jury trial, Jose Farjado Hernandez was convicted of attempted murder (OCGA §§ 16-4-1, 16-5-1 (a), (b)), family violence aggravated battery (OCGA § 16-5-24 (a), (h)), false imprisonment (OCGA § 16-5-41 (a)), and giving a false name to officers (OCGA § 16-10-25). Hernandez filed a motion for new trial, which the trial court denied. On appeal, Hernandez contends that (1) the State improperly elicited inadmissible character evidence, which warranted a mistrial; (2) he received ineffective assistance of counsel; and (3) the trial court erred in failing to merge the family violence aggravated battery offense with the attempted murder offense. For the reasons set forth below, we affirm in part, vacate in part, and remand for resentencing.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Footnote omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

So viewed, the evidence shows that Hernandez and the victim began dating in February 2009. Two months later, the couple began residing together at the home of the victim’s sister. Hernandez and the victim had a turbulent relationship. Prior to the incident at issue, Hernandez was violent toward the victim on more than one occasion — including an instance where he held a butcher knife at the victim’s throat and another where he punched her in the mouth. Although the victim attempted to end the relationship several times, Hernandez would not leave her and told her they were “going to be together forever.” In addition, two days before the incident at issue, Hernandez attacked the victim when she returned to her sister’s home, throwing her to the ground and beating her on the head.

On the day at issue, November 15, 2009, the victim was at her friends’ residence. The victim fell asleep on the couch. Shortly after the victim woke up, Hernandez walked through the door. Hernandez opened a beer and sat down next to the victim on the couch, telling her that they were going to be together. The victim continued to insist that the relationship was over. After their conversation, Hernandez left to buy the victim something to eat. When he returned, Hernandez drank some beer and fell asleep. The victim left with a friend and went to another apartment for several hours. When she returned to her friends’ residence, Hernandez was no longer there. After about 30 minutes, however, Hernandez came back to the residence. The victim asked her friend to call a taxi because Hernandez was intoxicated, and she did not want to be around him in his condition.

The victim went outside when the taxi arrived, but saw Hernandez standing in front of the vehicle. Although she walked around the taxi in an attempt to avoid Hernandez, he came toward her and stabbed her in the stomach with a knife. The victim fell to the ground and tried to push the knife away from her, but Hernandez continued to gesture at her with the knife. The victim’s friend finally walked over and hit Hernandez in the head with a chair, knocking Hernandez off of the victim. The victim took the opportunity to run back into her friends’ residence and into the bathroom. Since the bathroom door did not lock, the victim sat up against the door to hold it closed. Hernandez attempted to knock the bathroom door open. When the victim no longer heard Hernandez at the door, she exited the bathroom and asked someone to call an ambulance. At that point, Hernandez ran back through the door and started stabbing the victim in the back of her leg. The victim quickly returned to the bathroom. Hernandez chased the victim and continued to try to knock the door down. The victim was able to escape the bathroom via a small window. The victim ran away from the residence toward her friend, who had contacted the police. An ambulance and the police arrived shortly thereafter. As the victim was being put into the ambulance, Hernandez started walking toward them, and the victim identified him to the police. The police took Hernandez to the ground and recovered a kitchen knife from his pocket. Hernandez falsely identified himself to the police as “Victor Martinez,” and he was taken into custody.

As a result of the incident, the victim suffered stab wounds in her eye, her stomach, her side, her hand, and her leg. During trial, the parties stipulated to the following facts: that the clothing worn by-Hernandez on the date of the incident contained the victim’s blood; that the knife recovered from Hernandez’s person contained the victim’s blood; and that the photographic exhibits containing depictions of blood reflected the victim’s blood. Hernandez was subsequently charged and convicted of attempted murder, family violence aggravated battery, false imprisonment, and giving a false name to officers.

1. Hernandez contends that the State improperly elicited inadmissible character evidence, and that the trial court should have granted his request for a mistrial on this basis. We disagree.

Motions for mistrial are generally in the discretion of the trial judge, and especially where the cause is a voluntary remark of a witness uninvited by counsel, where the jury is properly instructed and the remark is not so flagrantly prejudicial as to violate the defendant’s fair trial rights, the court’s discretion will not be overturned.

(Citations omitted.) Ochle v. State, 218 Ga. App. 69, 72 (4) (459 SE2d 560) (1995). “In reviewing the denial of a mistrial, we look at the relevant circumstances, including the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.” (Citations, punctuation and footnotes omitted.) Owens v. State, 250 Ga. App. 61, 62 (550 SE2d 464) (2001).

During the State’s direct examination of the victim, the prosecutor questioned the victim regarding her knowledge of Hernandez being known by any other names. After establishing that the victim did not know Hernandez by the name of Victor Martinez, the false name Hernandez gave to the police upon his arrest, the following exchange occurred:

Q. Was there ever a time when someone, a female, called him another name?
A. Yes.
Q. What was that all about?
A. There was a girl that c[a]me to his house one time to buy some cocaine from him in the trailer where he used to live.

Hernandez’s counsel promptly objected and sought a mistrial.

The prosecutor explained that the victim’s response was unresponsive to the question, and that his intent was not to elicit testimony regarding Hernandez’s past dealings with cocaine. Rather, the prosecutor’s intent was to elicit evidence to prove the offense of giving a false name to officers. The prosecutor indicated that his expectation was for the victim to testify only about the fact that Hernandez went by different names; his expectation was based upon his previous discussion with the victim regarding her knowledge of an individual who had called Hernandez by a name that the victim had never previously heard. Moreover, although the prosecutor indicated that he had cautioned the victim about “saying certain things, staying away from certain things,” he could not specifically recall whether he instructed her not to testify regarding the subject of drugs. Nor did the victim recall being instructed not to mention the cocaine sale while testifying about Hernandez’s use of different names.

The trial court found that the information about the cocaine was inadmissible and instructed the victim to refrain from any further comments about Hernandez being involved in the sale of cocaine. Although the trial court declined to grant Hernandez’s request for a mistrial, it immediately issued the following curative instruction to the jury: “This defendant is not charged with any drug-related offense. Any statement just made by the witness is to be disregarded. It is to have no effect. You shall not consider that in regard to the charges that we are dealing with here today.”

As an initial matter, Hernandez failed to renew his motion for mistrial following the trial court’s issuance of the curative instruction, which has waived the issue on appeal. See Warren v. State, 314 Ga. App. 477, 479 (2) (a) (724 SE2d 404) (2012). In any event, Hernandez has not shown that the trial court abused its discretion in denying his motion. Hernandez contends that the prosecutor’s line of questioning indicated the State’s intent to elicit testimony regarding allegations of a cocaine sale, which constituted inadmissible character evidence about Hernandez. Although the prosecutor’s question was broadly stated, the trial court was authorized to conclude that the prosecutor did not deliberately elicit impermissible testimony. Rather, without any specific instruction to avoid mention of the subject, the victim’s comment, made only once, was inadvertent. See Starks v. State, 240 Ga. App. 346, 348-349 (2) (523 SE2d 397) (1999) (concluding that witness’s testimony regarding defendant’s character, although responsive to the prosecutor’s question, was inadvertent where no specific instruction or ruling was violated); Morgan v. State, 161 Ga. App. 484, 487 (9) (287 SE2d 739) (1982) (holding that mistrial was not warranted where witness’s statement about defendant’s other charges was made only once, witness was merely responding in narrative form to the prosecutor’s questions, and witness was given no warning regarding testimony about other charges). “Because the trial court acted immediately, ruled out the offensive testimony, and properly instructed the jury to disregard the statement, and give it no consideration whatsoever, we find no abuse of discretion in denying the motion for mistrial.” (Citations and punctuation omitted.) McGee v. State, 267 Ga. 560, 565 (3) (480 SE2d 577) (1997); see also Jackson v. State, 267 Ga. 130, 132 (6) (475 SE2d 637) (1996) (“[Wjhere . . . the witness is not a police officer and there is no instruction to the witness, a mistrial is not necessary.”) (citation and punctuation omitted); Starks, supra, 240 Ga. App. at 349 (2) (concluding that curative instruction was sufficient when no specific instruction had been given to the officer witness regarding the objectionable testimony).

2. Hernandez contends that his trial counsel was ineffective in the following ways: (a) failing to renew Hernandez’s motion for mistrial; (b) failing to conduct a proper examination of the victim in support of his motion for mistrial; and (c) failing to request a limiting jury instruction contemporaneously with the admission of testimony regarding prior difficulties between Hernandez and the victim. We disagree that the standard for ineffective assistance of counsel was met.

To establish ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), a criminal defendant bears the burden of showing “that counsel’s performance was deficient and that the deficient performance so prejudiced defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” (Citations omitted.) Johnson v. State, 287 Ga. 767, 769 (2) (700 SE2d 346) (2010). However, a court addressing the ineffective assistance issue is not required “to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, supra, 466 U. S. at 697 (IV). “In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. “The trial court’s determination with respect to effective assistance of counsel will be affirmed unless its findings are clearly erroneous.” (Citation omitted.) Johnson, supra, 287 Ga. at 769 (2).

(a) Hernandez first contends that his trial counsel was ineffective in failing to renew the motion for mistrial following the trial court’s denial of the motion and issuance of a curative instruction. “Even if trial counsel had renewed the motion for mistrial after the curative instruction was given, [Hernandez] has failed to demonstrate prejudice.” (Punctuation omitted.) Sanders v. State, 290 Ga. 445, 449 (4) (721 SE2d 834) (2012). As discussed in Division 1 above, the trial court did not abuse its discretion when it denied Hernandez’s motion for mistrial and gave a curative instruction, which preserved Hernandez’s right to a fair trial. See id. “Because there is not a reasonable probability that renewing the motion for a mistrial after the curative instruction was given would have changed the outcome of the trial, we conclude that [Hernandez] was not denied effective assistance of counsel.” (Citation omitted.) Id.

(b) Hernandez next contends that his trial counsel erred in failing to conduct a proper examination of the victim in support of his motion for mistrial. Specifically, Hernandez claims that trial counsel, at the motion for mistrial hearing, should have asked the victim whether she had discussed the cocaine incident with the State prior to trial. Even assuming trial counsel was deficient in failing to do so, Hernandez has failed to establish that he was prejudiced by the victim’s comment. As noted in Division 1 above, to the extent that the cocaine reference was not inadvertent, the evidence supporting Hernandez’s conviction of the charged offenses was overwhelming irrespective of the victim’s comment. Therefore, it is highly improbable that the victim’s comment regarding a cocaine sale contributed to the guilty verdict. See Massey v. State, 306 Ga. App. 180, 184-185 (4) (a), (b) (702 SE2d 34) (2010) (concluding that, in light of the overwhelming evidence of guilt, the defendant failed to establish prejudice on ineffective assistance of counsel claims).

(c) Hernandez claims that his trial counsel was ineffective in failing to request a contemporaneous jury instruction on prior difficulties when the State presented witness testimony regarding prior incidents of violence between Hernandez and the victim.

[CJontrary to [Hernandez’s] contention, his counsel’s failure to request a contemporaneous limiting instruction was not ineffective assistance because the trial court included a limiting instruction in its final charges to the jury. Therefore, even if trial counsel’s performance [was] deficient in this regard, [Hernandez] has not shown that but for this deficiency, the outcome of his trial would have been different. As both showings are required, this claim of ineffectiveness fails.

(Punctuation and footnotes omitted.) Breazeale v. State, 290 Ga. App. 632, 633 (1) (b) (660 SE2d 376) (2008); see also Copeland v. State, 276 Ga. App. 834, 838 (2) (b) (625 SE2d 100) (2005).

3. Finally, Hernandez contends that the trial court erred in failing to merge the offense of family violence aggravated battery with that of attempted murder for purposes of sentencing. We agree.

‘Whether offenses merge is a legal question, which we review de novo.” (Citation omitted.) Louisyr v. State, 307 Ga. App. 724, 730 (2) (706 SE2d 114) (2011).

Here, to convict Hernandez of family violence aggravated battery as alleged in the indictment, the State had to prove that he maliciously caused bodily harm to the victim, with whom he once lived, by seriously disfiguring her stomach, leg, hand, and face by stabbing and cutting her with a knife. See OCGA § 16-5-24 (a), (h). To convict Hernandez of attempted murder as alleged in the indictment, the State had to prove that Hernandez had intent to commit murder, and that stabbing the victim with a knife was an act which constituted a substantial step toward the commission of murder. See OCGA §§ 16-4-1, 16-5-1 (a).

On appeal, Hernandez argues that the offenses of family violence aggravated battery and attempted murder are analogous to the crimes of aggravated battery and murder and should merge under OCGA § 16-1-6 (2). OCGA § 16-1-6 (2) pertinently provides that a crime is included where “ [i] t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest. . . suffices to establish its commission.” (Punctuation omitted.) In Ledford v. State, 289 Ga. 70, 74 (1) (709 SE2d 239) (2011), the Supreme Court found that OCGA § 16-1-6 (2)

recognizes that a crime such as battery, which prohibits the intentional infliction of bodily injury, is included in a crime such as murder, which prohibits the intentional infliction of more serious bodily injury, i.e., death, despite the distinction between these two injury elements. Similarly, it is clear that the only difference between aggravated battery and murder is that the former requires a less serious injury to the person of the victim, as the injury to a bodily member specified in the aggravated battery statute is obviously less serious than death. Therefore, pretermitting whether these two offenses meet the “required evidence” test,[] convictions for both offenses established by the same conduct are prohibited by OCGA § 16-1-6 (2).

Decided October 9, 2012.

George B. Sparks, Michael R. McCarthy, for appellant.

Herbert M. Poston, Jr., District Attorney, Stephen E. Spencer, George J. Souther, Assistant District Attorneys, for appellee.

(Citation and punctuation omitted.); see also Soilberry v. State, 289 Ga. 770, 772 (3) (716 SE2d 162) (2011).

Indeed, similar to aggravated battery and murder, the family violence aggravated battery and attempted murder crimes in this case were based upon the same conduct — to wit, stabbing the victim with a knife. The only difference between the two crimes is that attempted murder requires a less serious injury to the person, as personal injury is not a required element of attempted murder. See OCGA §§ 16-4-1, 16-5-1 (a). Therefore, pretermitting whether the offenses of family violence aggravated battery and attempted murder meet the “required evidence” test set forth in Drinkard v. Walker, 281 Ga. 211, 214-215 (636 SE2d 530) (2006), the convictions for both offenses established by the same conduct were prohibited by OCGA § 16-1-6 (2). See Soilberry, supra, 289 Ga. at 772 (3); Ledford, supra, 289 Ga. at 74 (1). As a result, Hernandez’s sentence must be vacated, and this case must be remanded to the trial court for resentencing.

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

Ray and Branch, JJ., concur.

       At some point, the victim’s sister came into contact with Hernandez, when he stated that “somebody’s going to die today.” At trial, Hernandez in fact admitted to making this statement, hut claimed he was referring to someone in Mexico.

       To the extent that Hernandez raises his failure to renew the mistrial motion as a ground for his ineffective assistance of counsel claim, we address the merits of this claim in Division 2 (a) below.

       We note that the victim later testified at the motion for new trial hearing that she had mentioned the cocaine incident to the State prior to trial. However, the prosecutor did not recall any such statement made by the victim during trial preparation, and the prosecutor’s broad question does not conclusively show an intent to elicit improper character evidence. Nevertheless, even to the extent the victim’s testimony was deliberately elicited and not an inadvertent comment, the evidence against Hernandez was otherwise overwhelming and demanded the verdict. See Butler v. State, 290 Ga. 425, 426 (3) (721 SE2d 889) (2012) (concluding that even if witness testimony improperly placed defendant’s character into evidence, such error was harmless in light of the overwhelming evidence of defendant’s guilt); cf. Ochle, supra, 218 Ga. App. at 72 (4) (holding that witness’s statement was not inadvertent where it should have been anticipated by the prosecutor given the prosecutor’s previous discussions with the witness and reversing denial of motion for mistrial because evidence of defendant’s guilt was not overwhelming).

       See Drinkard v. Walker, 281 Ga. 211, 214-215 (636 SE2d 530) (2006).


author: Adams, Judge.

text:
    A12A1253.
    McCULLOUGH v. THE STATE.
    (733 SE2d 36)
   Adams, Judge.

Craig McCullough was charged with false imprisonment, battery (family violence), four counts of cruelty to children in the third degree and one count of reckless conduct and was convicted by a jury of cruelty to children and reckless conduct. In his sole argument on appeal, he contends that the trial court erred by refusing to exercise its discretion and consider his request to be sentenced as a first offender pursuant to OCGA § 42-8-60.

Refusal to consider first offender treatment as part of a sentencing formula or policy of automatic denial constitutes an abuse of discretion and constitutes reversible error. However, there must be a clear statement in the record that constitutes either a general refusal to consider such treatment or an erroneous expression of belief that the law does not permit the exercise of such discretion.

(Footnote omitted.) Powell v. State, 271 Ga. App. 550, 551-552 (610 SE2d 178) (2005).

The transcript from the sentencing phase of the proceedings reflects that defense counsel first requested 12 months probation, and the trial court indicated he had to do something “a little better than that.” The trial court then pondered imposing a fine, but noted that would be “taking food,... taking toys away from [McCullough’s children].”

Defense counsel then requested a first offender sentence so McCullough would not be barred from hunting for life. The trial court’s initial response to the request was “[h]e’s guilty.” Defense counsel then reminded the judge that he had to consider first offender as an alternative for sentencing, and the trial judge stated “Yeah, but I’m not going to do it.” Defense counsel asked why, and the trial court expounded slightly “[b]ecause he was found guilty by a jury, and I’m not going to do it.”

After further discussion of the imposition of a fine, defense counsel asked the court to reconsider first offender, reminding the court that there was no gun used in the crime and that McCullough was requesting first offender status so that he could continue to hunt. The trial court again refused, noting that “the jury didn’t believe [McCullough]” to which defense counsel responded that McCullough had not testified. After further discussion of a probated sentence and various offers allegedly made by the prosecutor’s office, the trial court noted, “Well, the sentencing is up to me.”

The court then stated:

I want you to know something. I went home last night, when I went to bed, the only thing that was on my mind was, if this gentleman is found guilty, what am I going to do? And I’m going ... to give him five years in prison because it’s my responsibility to protect children, okay. And that’s my responsibility. What you do — and the jury’s found you guilty. And I accept — I have to accept what the jury’s done. They found you guilty of these charges. And therefore, what you do, they’re going to do when they grow up. You’re going to have to get things straightened out, okay?

After McCullough interjected that he would never hurt his children, the court continued, “I know you wouldn’t, but yet you’re doing — the jury found that you did this in front of them, okay. And that’s the jury’s verdict. And that really bothers me. I mean, I almost got tears in my eyes when your daughter came up [to testify].” After a few additional remarks from both the trial judge and McCullough, and just prior to announcing sentence, the court stated “I’ve got to make sure this doesn’t happen again; otherwise I’m not doing my job. I’ve got to do everything I can to put — and I hate to put it this way — a hook in you.”

McCullough was then sentenced to 12 months probation, 12 consecutive weekends in jail on Count 3, to be served from 8:00 p.m. Friday to 8:00 a.m. Sunday. McCullough was also required to attend Family Violence Intervention Counseling and Anger Management Counseling, but if his wife attended with him, his jail time would be reduced to eight weekends. The court sentenced McCullough to either consecutive or concurrent probation on the remaining counts, with the provision that McCullough did not have to report to his probation officer after one year if he completed all required counseling.

Even assuming that the court’s initial statement that he was not affording McCullough first offender treatment because he had been convicted by a jury might be read as indicating a policy not to grant first offender treatment following a jury’s conviction or was an indication that the court was simply refusing to entertain the request at all, “the test here is not what might be inferred from an ambiguous statement, but whether the statement by the court clearly, i.e., unambiguously, shows a misunderstanding of the law or a general policy of not exercising discretion.” Powell, 271 Ga. App. at 552. We do not believe that the trial court’s remarks during sentencing indicate either a lack of awareness that the court had the discretion to sentence McCullough under the first offender statute, that the court was applying a mechanical policy that prevented proper consideration of the request, or that there was an outright refusal to consider the request. Rather, considering the judge’s remarks as a whole, we believe that he did consider all sentencing options, including first offender treatment, and decided, in the exercise of his discretion, that he would not grant McCullough first offender status because the jury had found him guilty of domestic violence toward his wife in the presence of his children. The trial court in this case was very deliberate and considered several options in fashioning a sentence that deterred McCullough from committing a similar crime in the future, protected his children and did not cause his family to suffer undue hardship. Thus, in our view the court clearly did not abdicate its responsibilities in imposing sentence.

There is a presumption that a trial court has regularly and correctly conducted the proceedings. Absent clear, i.e., unambiguous, statements in the record showing (1) an explicit request for First Offender Act treatment at the time of sentencing and (2) a failure to exercise discretion as evidenced by a misunderstanding of the law or a general policy against First Offender Act treatment, we will affirm the sentence as pronounced by the trial court.

Powell, 271 Ga. App. at 552-553. See also Graydon v. State, 313 Ga. App. 580, 581 (722 SE2d 173) (2012) (although court stated its general policy concerning first offender treatment, it also clarified it had no absolute rule and cited nature of the offense as the primary reasonfor denying request); Steele v. State, 270 Ga. App. 488, 492 (606 SE2d 664) (2004) (court’s announcement that it would deny first offender status “[b]ased on the nature of the offense” did not indicate mechanical sentencing policy); Threlkeld v. State, 250 Ga. App. 44, 46 (2) (550 SE2d 454) (2001) (court articulated reasons for denying first offender treatment); Camaron v. State, 246 Ga. App. 80, 82-83 (2) (539 SE2d 577) (2000) (court did not expressly address request on the record but considered nature of offense, aggravating circumstances, consequences of incarceration and mental status of defendant). Cf. Wnek v. State, 262 Ga. App. 733, 734 (586 SE2d 428) (2003) (court stated that it never granted first offender treatment when a defendant had been convicted by a jury); Cook v. State, 256 Ga. App. 353, 353-354 (568 SE2d 482) (2002) (court stated to the defendant that he had “lost [his] chance” for first offender by going to trial); Stovall v. State, 251 Ga. App. 7, 10 (2) (553 SE2d 297) (2001) (refused to consider because defendant opted for trial instead of entering a plea); Jackson v. State, 244 Ga. App. 477, 478 (3) (535 SE2d 818) (2000) (court stated mechanical policy of refusing to consider first offender treatment if the defendant opted for trial instead of entering a plea).

Decided October 9, 2012.

James W. Smith, for appellant.

J. Bradley Smith, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

In this case, the trial court, in the proper exercise of its discretion, declined to grant McCullough’s request for first offender treatment, and we discern no basis for reconsideration of McCullough’s sentence.

Judgment affirmed.

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

       The charges arose out of a family violence incident between McCullough and his wife during which children were present.