author: Ellington, Chief Judge.

text:
    A12A1122.
    THE STATE v. WILSON.
    (732 SE2d 330)
   Ellington, Chief Judge.

The State of Georgia indicted Terrell Wilson in Houston County, charging him as follows: Count 1 ■— aggravated assault of a peace officer, OCGA § 16-5-21 (c); Count 2 — interference with child custody, OCGA § 16-5-45 (b) (1) (A); Count 3 — fleeing or attempting to elude a police officer, OCGA § 40-6-395 (a); and Count 4 — driving with a suspended or revoked license, OCGA § 40-5-121 (a). At trial, Wilson made an oral motion to quash Counts 1 through 3 of the indictment, and the trial court granted the motion. The State appeals, contending, inter alia, that the court erred in finding that Wilson timely raised his motion to quash and in granting that motion. For the following reasons, we agree and reverse the court’s order.

The record shows that the State indicted Wilson in September 2010, and he was arraigned in February 2011. In Count 1 of the indictment, the State charged Wilson with “Aggravated Assault on [a] Peace Officer,” alleging that he “did unlawfully make an assault upon the person of Dep. Richard Slate Simons, a peace officer engaged in the performance of his official duties, with a motor vehicle, an object, which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]” (Emphasis supplied.) In Count 2, the State charged Wilson with “interference with custody,” alleging that he, “without lawful authority, did entice [S. J.], a child, from [N. J.], who has lawful custody of said child[.]” And, in Count 3, the State charged Wilson with “fleeing or attempting to elude” and alleged that he “did unlawfully and willfully fail to bring his vehicle to a stop after a pursuing police officer, Deputy Richard Slate Simons, gave a visual and audible signal, to wit: identifying himself as a police officer, holding up his hand and ordering the defendant to stop his vehicle[.]”

Wilson did not file a demurrer or a motion to quash the indictment before his December 2011 trial. Immediately after the jury was impaneled and sworn, however, Wilson’s counsel made an oral motion to quash Counts 1 through 3 of the indictment, asserting that each count failed to allege at least one essential element of the crime charged therein. The State objected to the motion, arguing that it was untimely and was not in writing. The trial court disagreed, however, and quashed Count 1 of the indictment because it failed to allege that Wilson “knowingly” committed an aggravated assault upon a police officer. The court quashed Count 2 because it failed to allege that Wilson “knowingly’ or “recklessly’ enticed the named child, S. J., from the legal custodian, N. J. And the court quashed Count 3, ruling that the indictment failed to charge the police officer was in uniform, was wearing an official badge, and was using a marked police vehicle. The court also denied the State’s request to pursue convictions for lesser included offenses of the crimes charged in the indictment, ruling that to do so would essentially allow the State to make impermissible material alterations to the indictment.

1. On appeal, the State contends that the trial court erred in finding that Wilson timely filed his motion to quash the indictment, arguing that the alleged defects in the indictment were not fatal to its validity and, therefore, Wilson was required to file a written special demurrer raising the challenge before trial. We review this alleged error de novo.

Due process of law requires that an indictment put the defendant on notice of the crimes with which he is charged and against which he must defend. An indictment apprises a defendant that he may be convicted of the crime named in the indictment, of a crime included as a matter of law in the crime named, and of a crime established by the facts alleged in the indictment regarding how the crime named was committed.

(Citation and punctuation omitted.) Stinson v. State, 279 Ga. 177, 178 (2) (611 SE2d 52) (2005). Stated differently, an indictment not only charges the defendant with the specified crime, it also

embraces all lesser included offenses of the charged offense. An indictment places an accused on notice that he can be convicted of the crimes expressly charged as well as lesser crimes that are included in the charged offenses as a matter of law or fact. Indeed, if an offense is a lesser included offense as a matter of law or fact, an accused can be convicted of that offense even if the trial court directs a verdict on the offense expressly charged in the indictment.

(Citations omitted.) Morris v. State, 310 Ga. App. 126, 129 (2) (712 SE2d 130) (2011). See also OCGA § 16-1-6 (“An accused may be convicted of a crime included in a crime charged in the indictment or accusation.”). Thus, if an indictment alleges the facts necessary to establish the elements of a lesser included offense to the charged crime, then a defendant may be convicted of the lesser included offense pursuant to that indictment, as long as the evidence presented at trial is sufficient to sustain the conviction. See Morris v. State, 310 Ga. App. at 129-130 (2).

If a defendant decides to challenge the validity, specificity or form of an indictment, he or she must file a general and/or special demurrer seeking to quash the indictment. A general demurrer challenges the validity of an indictment by asserting that the substance of the indictment is legally insufficient to charge any crime. Stinson v. State, 279 Ga. at 180 (2), n. 3; State v. Meeks, 309 Ga. App. 855, 856 (711 SE2d 403) (2011). In other words, a general demurrer is essentially a claim that the indictment is fatally defective and, therefore, void, because it fails to allege facts that constitute the charged crime or any other crime, including a lesser included offense of the charged crime. McDaniel v. State, 298 Ga. App. 558, 559-560 (680 SE2d 593) (2009); see OCGA § 16-1-6; Morris v. State, 310 Ga. App. at 129 (2).

Thus, “[t]he true test of the sufficiency of an indictment to withstand a general demurrer ... is found in the answer to the question: Can the defendant admit the charge as made and still be innocent [of any crime]? If he can, the indictment is fatally defective.” (Citation and punctuation omitted.) State v. Meeks, 309 Ga. App. at 856. See Stinson v. State, 279 Ga. at 179 (2) (accord). On the other hand, if the defendant cannot admit all of the facts in each count of the indictment and still be innocent of committing any crime, the indictment is legally valid and will survive a general demurrer. Harris v. State, 258 Ga. App. 669, 671-672 (1) (574 SE2d 871) (2002) (“[I]f, taking the facts as alleged in the indictment, the guilt of the accused follows as a legal conclusion, the indictment is good.”) (citations and punctuation omitted).

In contrast to a general demurrer, a special demurrer merely objects to the form of an indictment and seeks more information or greater specificity about the offense charged. Stinson v. State, 279 Ga. at 180 (2), n. 3; McDaniel v. State, 298 Ga. App. at 559-560; Jones v. State, 240 Ga. App. 484, 486 (2) (523 SE2d 73) (1999). A defendant must file a special demurrer in writing within ten days after arraignment. Stinson v. State, 279 Ga. at 180 (2), n. 3; see OCGA § 17-7-110 (“All pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court.”). Once a defendant has timely filed a special demurrer, he or she is entitled to an indictment perfect in form and substance. State v. Corhen, 306 Ga. App. 495, 498 (700 SE2d 912) (2010) . However, “[t]he failure to file a timely special demurrer seeking additional information constitutes a waiver of the right to be tried on a perfect indictment.” (Citations omitted.) McDaniel v. State, 298 Ga. App. at 560. See Stinson v. State, 279 Ga. at 180 (2) (accord).

(a) With these principles in mind, we turn to the record in the instant case, which shows that, after the jury was impaneled and sworn, Wilson’s counsel made an oral motion to quash Counts 1 through 3 of the indictment, asserting that each count failed to allege at least one essential element of the crime charged therein. However, “[a]n allegation that an indictment was deficient because it did not contain all the essential elements of the crime is, in essence, a special demurrer seeking greater specificity.” (Citation omitted; emphasis supplied.) McDaniel v. State, 298 Ga. App. at 560. See Stinson v. State, 279 Ga. at 180 (2) (accord). Therefore, because Wilson failed to raise this challenge to the indictment in a timely written special demurrer, it was waived. As a consequence, the trial court erred in setting aside Counts 1 through 3 of the indictment on the basis that they failed to allege every essential element of the crimes charged.

(b) Further, a challenge to an indictment that is based upon an alleged variance between the offense named in the indictment and the facts alleged in the indictment goes only to the form of the indictment, so that such challenge must be brought by special demurrer. Jones v. State, 240 Ga. App. at 486 (2) (It is axiomatic that it is not the name given to a crime in the indictment, but the indictment’s description of the facts that constituted the crime, that establishes the offense charged.); see Morris v. State, 310 Ga. App. at 131 (3) (“It is immaterial what the offense is called in the indictment as long as the averments of the presentment are such as to describe an offense against the laws of the State.”) (citations and punctuation omitted); Hill v. State, 257 Ga. App. 82, 84 (1) (570 SE2d 395) (2002) (“It is the description of the crime, rather than the description and number of the section under which it appears in the Code[,] which furnishes the criterion for determining whether the indictment is good.”) (citation and punctuation omitted).

Thus, to the extent that Wilson contended that the indictment was void because there was some variance between the facts alleged in each count and the offense actually named in that count, he waived such a challenge by failing to timely file a written special demurrer. Jones v. State, 240 Ga. App. at 486 (2).

(c) Having concluded that the trial court was not authorized to quash the indictment based solely upon problems with the form of the indictment, we now must address whether the substance of the indictment was legally sufficient to withstand Wilson’s oral general demurrer. Because, as noted above, an indictment charges the defendant with any crime that is established by the facts as alleged, including lesser included crimes, it follows that the trial court was authorized to grant Wilson’s general demurrer only if the allegations of the indictment were insufficient to charge him with any crime, thereby making the indictment fatally deficient and void. See Stinson v. State, 279 Ga. at 178-180 (2), n. 3; State v. Meeks, 309 Ga. App. at 856; McDaniel v. State, 298 Ga. App. at 559-560.

(i) Count 1 of the indictment alleged that Wilson “unlawfully [made] an assault upon the person of Dep. Richard Slate Simons, a peace officer engaged in the performance of his official duties, with a motor vehicle, an object, which, when used offensively against a person, is likely to or actually does result in serious bodily injuryf.]” (Emphasis supplied.)

Under OCGA § 16-5-21 (a) (2), “[a] person commits the offense of aggravated assault when he or she assaults[] . . . with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury [.]” The only difference between this crime and the offense of aggravated assault on a peace officer, under OCGA § 16-5-21 (c), is “that knowledge of the fact that the victim was a police officer is an essential element of the [latter] crime.” (Citation omitted.) Garrett v. State, 306 Ga. App. 420, 421-422 (a) (703 SE2d 666) (2010). Thus, in this case, aggravated assault is a lesser included offense of aggravated assault on a peace officer as a matter of fact and law. See id. (finding that, because the aggravated assault conviction was “established by proof of the same or less than all the facts” that were required to establish the aggravated assault on a peace officer conviction, the crimes had to be merged for sentencing).

Consequently, pretermitting whether this count sufficiently charged Wilson with assaulting someone he knows is a peace officer, pursuant to OCGA § 16-5-21 (c), he still cannot admit to these allegations without being guilty of committing the lesser included offense of aggravated assault under OCGA § 16-5-21 (a) (2). Therefore, we conclude that this count was legally sufficient to withstand a general demurrer.

(ii) In Count 2, the indictment alleged that Wilson, “without lawful authority, did entice [S. J.], a child, from [N. J.], who has lawful custody of said child, contrary to the laws of said State [.]” Although the indictment did not allege that Wilson “knowingly or recklessly... entice[d]” the child, pursuant to OCGA § 16-5-45 (b) (1) (A), “[t]he failure to allege intent is not fatal where the indictment employs language that necessarily raises an inference that the requisite criminal intent existed.” (Citations and punctuation omitted.) Morris v. State, 310 Ga. App. at 130 (2) (holding that the allegation that the defendant’s “offensive use of [his] fists . . . resulted in bodily injury” was sufficient to charge him with simple battery under OCGA § 16-5-23 (a), which requires that the defendant act “intentionally”). In this case, Count 2 uses the verb “entice,” which means “to solicit, persuade, or procure” and, thus, describes an intentional act. It follows that Wilson simply cannot admit to acting “without lawful authority^’ when he enticed the child away from his or her legal custodian, yet still not be guilty of committing a crime. Therefore, we conclude that this count was legally sufficient to withstand a general demurrer.

(iii) Finally, in Count 3, the indictment charged Wilson with “fleeing or attempting to elude,” alleging that Wilson “unlawfully and willfully fail[ed] to bring his vehicle to a stop after a pursuing police officer, Deputy Richard Slate Simons, gave a visual and audible signal, to wit: identifying himself as a police officer, holding up his hand and ordering the defendant to stop his vehicle [.]” Pretermitting whether the allegation that Deputy Simons “identified] himself as a police officer” was sufficient to allege that he was in uniform, wearing an official badge, and using a marked police vehicle, as required by OCGA § 40-6-395 (a), we conclude that the count was still legally sufficient to withstand a general demurrer.

Under OCGA § 16-10-24 (a), “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” We find, therefore, that the facts alleged in Count 3 were sufficient to charge Wilson with the lesser included offense of obstruction of a police officer. Gibson v. State, 265 Ga. App. 325, 328 (593 SE2d 861) (2004) (finding that an indictment that charged the defendant with fleeing or attempting to elude an officer under OCGA § 40-6-395 (a) alleged facts that were sufficient to also charge the defendant with the lesser included offense of obstruction of an officer under OCGA § 16-10-24 (a)). In addition, Wilson is unable to admit to the allegations in this count without being guilty of committing a crime.

In sum, because we conclude that each of the counts was sufficient to charge Wilson with a crime and, as a result, was legally sufficient to survive a general demurrer, it follows that the trial court erred in quashing those counts of the indictment.

2. Because we conclude that the trial court erred in quashing the indictment, the State’s remaining alleged errors are moot.

3. Finally, although it was neither illegal nor unethical for defense counsel to intentionally wait until the jury was impaneled and sworn before moving to quash the indictment, an act that was done with the express hope that jeopardy would attach and that the State would he unable to re-indict his client, we find that it is disrespectful to the trial court, the State, the jurors, and the witnesses and is wasteful of the time and extremely limited resources of the State’s justice system. See Armstrong v. State, 281 Ga. App. 297, 298, n. 1 (635 SE2d 880) (2006) (Defense counsel intentionally waited until the jury had been sworn before moving to dismiss the charges on the grounds that his client had not waived his right to indictment by a grand jury in writing, acknowledging that he waited because he hoped to prevent the State from indicting his client. This Court noted that it agreed with the trial court “that this attempted legal maneuver was wasteful of the time and resources of court, counsel, and jurors, and should be deplored.”). Not only was counsel’s tactic doomed as futile, because the grant of a general demurrer due to a finding that the indictment was void ab initio or that the court lacked jurisdiction does not automatically bar the reindictment of the defendant, but, by gambling on the success of a general demurrer in this case by intentionally waiting until the issue had been joined before challenging the indictment, counsel waived his client’s right to challenge the indictment via a special demurrer.

On the other hand, it is well within the power of the State and its prosecutors to avoid obvious oversights in indictments, such as those that are at issue in this case. Although most indictments are drafted so that they are clearly sufficient to withstand either a general or special demurrer, mistakes such as those presented here occur with inexplicable frequency and result in a tremendous waste of judicial and law enforcement resources that could and should be directed elsewhere. Although the minimal legal requirements for the form of indictments are provided, in very general terms, in OCGA § 17-7-54 (a), we strongly encourage the State to make every reasonable effort to avoid the problems at issue here by ensuring that each count of every indictment meets some or, preferably, all of the following criteria: includes all of the essential elements of the crime sought to be charged, especially the applicable mens rea; cites to a specific criminal statute and, when appropriate, the relevant subsection; tracks the language of a specific criminal statute; avoids surplus language; and accurately provides names, dates, and other facts, especially when they are material to the charged crime.

Decided September 25, 2012

Reconsideration denied October 19, 2012.

George H. Hartwig III, District Attorney, Erikka B. Williams, Assistant District Attorney, for appellant.

Nicholas E. White, Angela M. Coggins, for appellee.

Judgment reversed.

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

       Before the court issued its written ruling on the motion to quash, it granted the State’s request to enter a nolle prosequi as to Count 4 of the indictment. See OCGA § 17-8-3.

       See OCGA § 5-7-1 (a) (1) (the State may appeal from an order setting aside or dismissing an indictment).

       In so moving, one of Wilson’s attorneys apologized to the Court for “the timing” of the motion, admitting that, if he had made the motion to quash before the jury was sworn, “it would have given the State the opportunity to [nolle] pros and reindict [Wilson] to make their indictment stronger[.]” According to Wilson’s attorneys, they waited to make the motion because of their duty to Wilson “to bring... to a permanent end, the prosecution of [the State’s] case by any legal or ethical means.” See Hayward-El v. State, 284 Ga. App. 125, 127 (2) (643 SE2d 242) (2007) (“[A] defendant is not placed in jeopardy until, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled, and a jury has been impaneled and sworn.”) (citation and punctuation omitted).

       Under OCGA § 16-5-21 (c), “[a] person who knowingly commits the offense of aggravated assault upon a peace officer while the peace officer is engaged in, or on account of the performance of, his or her official duties shall, upon conviction thereof, be punished by imprisonment for not less than five nor more than 20 years.” (Emphasis supplied.) This statute has been construed to require that, at the time of the assault, the defendant “must have knowledge that he was assaulting a police officer engaged in the performance of his official duties.” (Citations omitted.) Johnson v. State, 156 Ga. App. 411, 412 (1) (274 SE2d 778) (1980).

       Under OCGA § 16-5-45 (b) (1) (A), “[a] person commits the offense of interference with custody when without lawful authority to do so, the person ... [kjnowingly or recklessly takes or entices any child or committed person away from the individual who has lawful custody of such child or committed person[.]” (Emphasis supplied.)

       Under OCGA § 40-6-395 (a),
      [i]t shall be 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 signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his or her badge of office, and his or her vehicle shall be appropriately marked showing it to be an official police vehicle.

      (Emphasis supplied.)

       This Court applies a de novo standard of review to a trial court’s determination of whether the allegations in an indictment were legally sufficient. Doe v. State, 306 Ga. App. 348, 349 (1) (702 SE2d 669) (2010).

       See Gibson v. State, 265 Ga. App. 325, 327 (593 SE2d 861) (2004) (“Under OCGA § 16-1-6 (2), a crime is included as a matter of law if it ‘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 or a lesser kind of culpability suffices to establish its commission.’ If a crime ‘is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged,’ it is included as a matter of fact. OCGA § 16-1-6 (1).”) (citation omitted).

       In Morris, the indictment alleged that the defendant “ ‘cause [d] the death of [the victim] ... by striking [the victim] with his fist... contrary to the laws of said State, the good order, peace and dignity thereof.’ ” Morris v. State, 310 Ga. App. at 130 (2). This Court concluded that this language alleged “ ‘an offensive use of the fists [that] resulted in bodily injury,’ ” and, as a result, sufficiently alleged the element of “ ‘[i]ntentionally causing] physical harm to another’ ” that was necessary to prove simple battery under OCGA § 16-5-23 (a) (2). Id. at 129-130 (2).

       Because a person cannot be lawfully convicted on an invalid indictment, a general demurrer may be raised orally or in writing at any time before judgment is entered on his or her conviction. Stinson v. State, 279 Ga. at 180 (2), n. 3.
      Further, “[i]n line with the fact that a general demurrer attacks the legality of an indictment, it is permissible to raise this ground after verdict by a motion in arrest of judgment^] even if there was no earlier objection.” (Citation and punctuation omitted.) McDaniel v. State, 298 Ga. App. 558, 560 (680 SE2d 593) (2009). However, a motion to arrest judgment due to a defective indictment should be granted only “when an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law[.]” (Citation and punctuation omitted.) Jones v. State, 240 Ga. App. 484, 485 (2) (523 SE2d 73) (1999). See Beals v. State, 288 Ga. App. 815, 816 (1) (655 SE2d 687) (2007) (accord).

       See Stinson v. State, 279 Ga. at 179 (2) (The one-count indictment charged the defendant with committing felony murder hy causing the death of the victim while committing the felony of aggravated assault. Therefore, the indictment was sufficient to withstand a general demurrer, because the defendant could not admit that he caused the death of the victim while in the commission of an aggravated assault and still not be guilty of the crime.).

       In Stinson, the Supreme Court of Georgia concluded that the defendant’s claim that the felony murder indictment was deficient because it did not contain all of the essential elements of the underlying crime of aggravated assault was, in essence, a special demurrer seeking greater specificity with regard to the predicate felony. Stinson v. State, 279 Ga. at 180 (2).

         We note that, in each of the cases relied upon by the trial court and Wilson wherein the indictment was found to be void (and, therefore, subject to a general demurrer), a complete reading of each case shows that the reason the indictment was found to be void was not because it simply failed to charge an essential element of the crime; instead, it was because, as a result of that omission, the indictment failed to charge any crime at all. In other words, because of the absence of an essential element of the crime, the defendant could admit to all of the other allegations of the indictment and still not be guilty of committing any crime. See, e.g., Henderson v. Hames, 287 Ga. 534, 537-540 (3) (697 SE2d 798) (2010) (The indictment attempted to charge the defendant with misuse of a firearm while hunting under OCGA § 16-11-108 (a), hut it failed to assert that the defendant misused the firearm “by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm to or endanger the safety of another person.” Consequently, the indictment charged no crime and was void.); Ross v. State, 235 Ga. App. 7, 8-9 (508 SE2d 424) (1998) (The accusation purported to charge the defendant with reckless driving under OCGA § 40-6-390 (a), but it failed to include the required element that he “drove with reckless disregard for the safety of persons or property.” Consequently, the indictment charged no crime and was void.); cf. Borders v. State, 270 Ga. 804, 806-808 (1) (514 SE2d 14) (1999) (The indictment charged the defendants with committing felony murder and malice murder by causing the death of the victim “ “by heating [him] about the body causing him to fall and strike his head and by beating and kicking him about the head and body.’ ” The Supreme Court ruled that the indictment was not void, even though it failed to charge the essential elements of the underlying offense, aggravated assault, because it contained sufficient facts to put the defendants on notice that they were accused of the death of the victim as a result of an aggravated assault.).
      Further, to the extent Wilson relies on State v. Eubanks, 239 Ga. 483 (238 SE2d 38) (1977), we note that it was a case in which the defendant had challenged the form of the indictment by filing a timely special demurrer; he did not file a general demurrer challenging the validity of the indictment. Thus, any language in the opinion that refers to the validity of the indictment constitutes mere dicta.

       See, e.g., Doe v. State, 306 Ga. App. at 350 (1) (The indictment informed the defendant that he was accused of attempting “to influence the winning of Georgia Lottery prizes by tampering with lottery materials],]” and, thus, was sufficient to charge him under subsection (6) of OCGA § 50-27-27, even though the indictment referred to the offense of “falsely uttering” a lottery ticket, which is a crime under subsection (o) of OCGA § 50-27-27.).

       See OCGA § 16-5-20 (a) (“Aperson commits the offense of simple assault when he or she either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.”).

       See also Lambert v. State, 157 Ga. App. 275, 276 (277 SE2d 66) (1981) (“[P]roof that the peace officer was in the performance of official duties has no bearing on the crime [of aggravated assault] other than to lengthen the punishment].]”).

       As explained in subsections (a) and (b), supra, if Wilson was uncertain about whether he could be convicted under Count 1 for the lesser included crime of aggravated assault with an offensive object, he should have filed a written special demurrer seeking more information or greater specificity. Lowe v. State, 276 Ga. 538, 539 (2) (579 SE2d 728) (2003) (“If [the defendant] wanted greater specificity with regard to the felony that she allegedly committed, her appropriate remedy was a pretrial special demurrer.”) (citations omitted).

       See also Lowe v. State, 276 Ga. at 540 (2) (The indictment alleged that the defendant caused the death of the victim “ ‘by pouring a flammable liquid over [him] and igniting same....’ Implicit in the allegation that she intentionally set fire to the victim is a charge that ‘she maliciously caused bodily harm to another by depriving him... of a member of his... body, by rendering a member of his... body useless, or by seriously disfiguring his... body or a member thereof[,]’ under OCGA § 16-5-24 (a).”) (citation omitted).

       Black’s Law Dictionary, www.thelawdictionary.org (2nd ed.).

       We note that Wilson has admitted in his appellate brief that Count 3 provided sufficient notice of the charge against him.

       Even though the indictment in Gibson did not specifically allege that the defendant acted “knowingly,” pursuant to the obstruction statute, we found “no material distinction between ‘willfully’ disobeying [a police officer’s] order and disobeying it ‘knowingly and willfully,’ ” at least under the facts of the case. (Emphasis in original.) Gibson v. State, 265 Ga. App. at 328. This Court also noted that “flight from police apprehension is sufficient opposition to support an obstruction charge.” (Citations omitted.) Id. at 328-329.

       We emphasize that, because Wilson failed to challenge the form or specificity of the indictment by special demurrer, he is not entitled to an indictment that is perfect in form. Thus, the State is authorized to prosecute Wilson for the crimes that are named in the indictment, as well as the lesser included offenses of those crimes.

        See Armstrong v. State, 281 Ga. App. at 298 (“A defendant is not placed injeopardy until, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled, and a jury has been impaneled and sworn.”) (citation and punctuation omitted; emphasis supplied); see also OCGA § 16-1-8 (d) (“A prosecution is not barred within the meaning of this Code section if: (1) The former prosecution was before a court which lacked jurisdiction over the accused or the crime[.]”).

       See OCGA § 17-7-54 (a) (“Every indictment of the grand jury which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood hy the jury shall he deemed sufficiently technical and correct. The form of every indictment shall he substantially as follows: Georgia,_County. The grand jurors selected, chosen, and sworn for the County of_, to wit:_, in the name and behalf of the citizens of Georgia, charge and accuse (name of the accused) of the county and state aforesaid with the offense of_; for that the said (name of the accused) (state with sufficient certainty the offense and the time and place of committing the same), contrary to the laws of said state, the good order, peace, and dignity thereof.”).

       To he clear, we are not suggesting that an indictment that does not meet any of these criteria is per se void or voidable. We simply make these suggestions with the intention of assisting the defendant hy providing more specific notice of the crimes charged, while assisting the State in proactively preventing otherwise meritless challenges to indictments.

       See, e.g., Henderson v. Hames, 287 Ga. at 538-539 (3) (the indictment failed to charge any crime because it omitted one of the two essential components of mens rea that were necessary to constitute a crime).

       See State v. Shabazz, 291 Ga. App. 751, 752 (3) (662 SE2d 828) (2008) (“[Wjhere an accusation charges the accused with having committed certain acts ‘in violation of’ a specified penal statute[,j the accusation incorporates the terms of the referenced Code section. Because an accused cannot admit an allegation that [his or] her acts were ‘in violation of’ a specified Code section and yet not be guilty of the offense set out in that Code section, such an accusation is not fatally defective” and will withstand a general demurrer, despite the omission of an essential element of the charged offense.) (citations omitted); see also Dixson v. State, 313 Ga. App. 379, 383 (2) (721 SE2d 555) (2011) (accord).

       See OCGA § 17-7-54 (a); Falagian v. State, 300 Ga. App. 187, 192 (3) (684 SE2d 340) (2009) (“An indictment which charges the offense in the language of the defining statute and describes the acts constituting the offense sufficiently to put the defendant on notice of the offense with which he is charged survives a general demurrer.”) (citations and punctuation omitted).

       See Corhen v. State, 306 Ga. App. at 498-499 (2) (“An allegation in an indictment that is wholly unnecessary to constitute the offenses charged is mere surplusage. Mere surplusage will not vitiate an indictment, and need not be established in proof. The material facts which constitute the offense charged must be stated and they must be proved in evidence. But allegations not essential to such purpose, which might be entirely omitted without affecting the charge and without detriment to the indictment, are considered as mere surplusage, and may he disregarded in evidence.”) (citations and punctuation omitted).

       See, e.g., id. at 501 (4) (noting that each count of the indictment “sufficiently apprises each of the named defendants of what he or she must be prepared to defend against by identifying the specific statute and subsection under which he or she was charged, giving the date(s) on which each crime was committed, describing the manner in which the crime was committed, providing the address of each residential property at issue, identifying the victim(s) of each crime, and, when applicable, providing the exact monetary figure(s) for the fraudulent misrepresentations or omissions or the value of the stolen property”) (citations omitted).


source: Caselaw Access Project

author: Miller, Presiding Judge.

license: Public Domain

text:
    A12A0821.
    KOVACS v. CORNERSTONE NATIONAL INSURANCE COMPANY.
    (736 SE2d 105)
   Miller, Presiding Judge.

Joseph Kovacs sued Joshua Lockhart to recover damages that Kovacs sustained when he was struck by a vehicle driven by Lock-hart. Cornerstone National Insurance Company (“Cornerstone”) had issued an automobile insurance policy covering Lockhart’s mother and the vehicle involved in the accident. Cornerstone filed a declaratory judgment action with the trial court seeking a determination that it was not required to provide coverage for the accident since Lockhart was excluded from coverage under the policy. Cornerstone filed a motion for summary judgment on the issue, which the trial court granted. Kovacs appeals the trial court’s ruling. We agree with Kovacs that the trial court erred in finding that the nonpermissive user exclusion barred coverage. We nevertheless affirm the trial court’s grant of summary judgment to Cornerstone because the evidence shows that the unlisted household resident exclusion applied in this case.

Summary judgment is appropriate if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party. A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.

(Footnote omitted.) Alston & Bird LLP v. Mellon Ventures II, L.P., 307 Ga. App. 640 (706 SE2d 652) (2011).

So viewed, the evidence shows that Lockhart entered into an agreement with his uncle to purchase a vehicle and paid a deposit pursuant to that agreement. Before Lockhart paid the entire amount of the negotiated price, his uncle delivered the vehicle to Lockhart’s mother. Thereafter, Lockhart’s mother added the vehicle to her existing insurance policy with Cornerstone. At the time, Lockhart was 17 years old and living at his mother’s residence. Although Lockhart’s mother was required to list all household residents of age 15 years and older, and certified that she included all individuals meeting that criteria, the mother failed to include Lockhart on the Cornerstone insurance application. Lockhart’s mother acknowledged that failing to disclose to Cornerstone any household resident of age 15 years or older would jeopardize her insurance coverage.

When the insurance policy was issued to cover the vehicle, Lockhart had a learner’s permit and not a driver’s license. Lockhart’s mother expressly told Lockhart that he was not to drive the vehicle at all until he received his driver’s license. Despite not having a valid driver’s license and knowing that he did not have his mother’s permission to drive the vehicle, Lockhart drove the vehicle with a licensed driver in July 2009, striking Kovacs as he was walking across the street.

Kovacs subsequently filed suit against Lockhart, seeking damages for his injuries. Cornerstone sought a declaratory judgment that its policy excluded liability coverage for Lockhart’s use of the vehicle. Cornerstone filed a motion for summary judgment, asserting that the policy excluded coverage for Kovacs’s injuries because Lockhart was not a permissive user of the insured vehicle according to the language of the policy, and because Lockhart was not listed on the policy as a household resident over the age of 15 years. The trial court granted Cornerstone’s motion for summary judgment on the basis of the nonpermissive user exclusion since Lockhart did not have his mother’s permission to use the vehicle.

1. Kovacs contends that the trial court erred in granting summary judgment to Cornerstone, because the nonpermissive user exclusion did not apply. We agree.

[I]n Georgia, insurance is a matter of contract, and the parties to an insurance policy are bound by its plain and unambiguous terms. Thus, when faced with a conflict over coverage, a trial court must first determine, as a matter of law, whether the relevant policy language is ambiguous. A policy which is susceptible to two reasonable meanings is not ambiguous if the trial court can resolve the conflicting interpretations by applying the rules of contract construction. Where a term of a policy of insurance is susceptible to two or more reasonable constructions, and the resulting ambiguity cannot be resolved, the term will be strictly construed against the insurer as the drafter and in favor of the insured. If a policy exclusion is unambiguous, however, it must be given effect even if beneficial to the insurer and detrimental to the insured. We will not strain to extend coverage where none was contracted or intended.

(Citations and punctuation omitted.) Hays v. Ga. Farm Bureau Mut. Ins. Co., 314 Ga. App. 110, 111-112 (1) (722 SE2d 923) (2012).

The Cornerstone policy provided that it would pay damages for bodily injury for which an insured person becomes legally responsible. Under the policy, an “insured person” was defined, in pertinent part, as the named insured “or a relative with respect to an accident arising out of the ... use of a covered vehicle [.]” A “relative” included any “person residing in the same household as [the insured] and related to [the insured] by blood[.]” However, the policy contained a nonpermissive user exclusion stating that coverage did not apply to “[b]odily injury... arising outof.. .the operation, maintenance or use of a covered vehicle that is without the express or implied permission of the owner.” (Emphasis supplied.)

Although Lockhart was living with his mother at the time of the accident and, thus, was a relative under the policy, the trial court concluded that the nonpermissive user exclusion applied to bar coverage since Lockhart did not have his mother’s permission to use the vehicle. Pretermitting Lockhart’s argument that he had permission to use the vehicle based on his claimed ownership of the vehicle, the evidence shows that the nonpermissive user exclusion did not apply because his mother was not the “owner” of the vehicle.

By its plain terms, the nonpermissive user exclusion applied only when the vehicle was used without the “owner’s” permission. Notably, the policy defined an “owner” as any person who (a) held legal title to the vehicle; (b) had legal possession of the vehicle that was subject to a written security agreement with an original term of six months or more; or (c) had legal possession of the vehicle that was leased to that person under a written security agreement for a continuous period of six months or more. Lockhart’s mother testified that she did not own the vehicle, and that, at the time of the accident, a family friend still retained legal title to the vehicle. Nor does the evidence show that Lockhart or his mother possessed the vehicle subject to a written security agreement or lease. Consequently, neither Lockhart nor his mother met the definition of an “owner” under the policy, and there is no evidence as to whether the family friend gave Lockhart permission to use the insured vehicle. Had Cornerstone, as the drafter of the policy, wished to exclude coverage for use of a vehicle without the insured’s permission, it should have done so. See Rutledge v. Auto-Owners Ins. Co., 249 Ga.App. 361, 363 (1) (548 SE2d 86) (2001). Consequently, the trial court erred when it granted summary judgment to Cornerstone on the ground that the nonpermissive user exclusion applied to bar coverage.

2. Cornerstone contends that the trial court’s judgment is nevertheless due to be affirmed because a separate policy exclusion barred coverage for unlisted household residents. We agree.

Although the trial court’s reason for granting Cornerstone’s motion for summary judgment was erroneous, we may still affirm the trial court’s judgment if it is right for any reason. See Nat. Tax Funding v. Harpagon Co., 277 Ga. 41, 45 (4) (586 SE2d 235) (2003) (a judgment of a lower court may be affirmed so long as it is right for any reason); City of Gainesville v. Dodd, 275 Ga. 834, 835, 838-839 (573 SE2d 369) (2002) (appellate courts may exercise discretion as to when to follow the “right for any reason” rule and consider grounds not addressed by the trial court). Since the factual record is set, we are able to apply the facts to the law in the same manner as the trial court in the furtherance of judicial economy. See City of Gainesville, supra, 275 Ga. at 838 (“The de novo review standard advances judicial economy by recognizing that, in summary judgment cases, the factual record is set and the appellate courts can, as well as the trial courts, apply those facts to the law.”).

“An insurer may reject coverage for a person expressly excluded from its policy. Provided that the exclusion agreement is supported by consideration between the parties, the exclusion is enforceable.” (Citations omitted.) Middlebrooks v. Atlanta Cas. Co., 222 Ga. App. 785, 786 (476 SE2d 82) (1996).

Here, the Cornerstone policy contained an exclusion for residents of the named insured’s household that were not listed on the insured’s application for insurance. The exclusion specifically provided:

In your application for insurance you were asked to list “all persons age 15 and older, LICENSED OR NOT, who reside with the applicant, and any other drivers of the vehicle(s) on this application.” We will not provide coverage for any claim arising from an accident or loss involving a motorized vehicle being operated by a person age 15 and older, LICENSED OR NOT, who resided with the applicant at the time of the application. We will not provide coverage for any claim arising from an accident or loss involving a motorized vehicle being operated by a household resident who, at the time of the application, was not listed on the application but who operated a vehicle listed on the application. THIS EXCLUSION APPLIES TO ANY CLAIM FOR DAMAGES MADE AGAINST YOU, A RELATIVE, OR ANY OTHER PERSON OR ORGANIZATION THAT IS VICARIOUSLY LIABLE FOR SUCH ACCIDENT.

(Emphasis in original.)

It is undisputed that Lockhart was over the age of 15 years and lived with his mother both on the date she completed the application, as well as on the date of the accident. It is also undisputed that Lockhart’s mother failed to list Lockhart as a household resident on the insurance application even though she was required to do so. Lockhart’s mother’s acceptance of the policy, which contained the specific contract language, “[i]n consideration of the premium charged,” and her payment of premiums was sufficient to establish consideration. See Middlebrooks, supra, 222 Ga. App. at 786. As a result, the clear and unambiguous exclusion related to unlisted household residents barred coverage for Lockhart’s accident. Cf. id. (driver exclusion that was clear, unambiguous and supported by consideration was enforceable); Southeastern Security Ins. Co. v. Empire Banking Co., 230 Ga. App. 755, 757 (3) (498 SE2d 282) (1998) (holding that coverage was excluded where insured failed to notify insurance company of all operators and household members as required).

3. Kovacs contends that Cornerstone’s attempt to exclude coverage was against public policy. His claim is without merit.

Exclusions are enforceable in insurance policies generally, except when public policy mandates otherwise. Competent parties are free to choose, insert, and agree to whatever provisions they desire in a contract, including insurance contracts, unless prohibited by statute or public policy.

(Punctuation omitted.) Hix v. Hertz Corp., 307 Ga. App. 369, 371 (705 SE2d 219) (2010). Automobile insurance policy exclusions are not per se void as against public policy. See Dairyland Ins. Co. v. Blay lock, 193 Ga. App. 175, 176 (2) (387 SE2d 405) (1989).

Public policy may justify enlarging an insurer’s risk where acts of the undisputed insured driver are concerned, but not necessarily so where an unauthorized driver who is not an insured under the policy is involved. This [Cjourt has previously affirmed declaratory judgment for the insurer where such an unauthorized and thus uncovered use of the vehicle occurred.

(Citation and punctuation omitted.) Rogers v. Travelers Indem. Co. &c., 202 Ga. App. 77, 79 (2) (413 SE2d 254) (1991); see also Ison v. State Farm Fire & Cas. Co., 230 Ga. App. 554, 555 (496 SE2d 478) (1998) (holding that driver exclusions, which are clear, unambiguous and supported by consideration, are enforceable and do not violate public policy or compulsory insurance laws).

Citing Woody v. Ga. Farm Bureau Mut. Ins. Co., 250 Ga.App. 454, 455 (551 SE2d 837) (2001), Kovacs argues that the exclusion provisions in this case violated public policy because he had no health insurance to cover his medical bills and, therefore, was an unprotected innocent victim. In Woody, the insured driver was driving without a valid license when he struck an uninsured motorist. Id. at 454-455. This Court held that an unlicensed driver exclusion violated public policy because the victim would be left without any recourse to recover for his damages if the exclusion applied. Id. at 455-456. In this case, however, as the trial court found, there was no evidence in the record showing that Kovacs lacked access to other insurance funds. In any event, Woody is inapplicable to this case because Kovacs was not struck by the insured driver, Lockhart’s mother. Rather, Kovacs was hit by Lockhart, whose use of the insured vehicle was unauthorized and uncovered under the unlisted driver’s exclusion. Under these circumstances, public policy does not justify enlarging insurance coverage for Kovacs’s injuries, and therefore, the unlisted driver’s exclusion was enforceable. See Rogers, 202 Ga. App. at 79 (2); Ison, supra, 230 Ga. App. at 555.

Decided October 19, 2012.

Richard A. Sanders, Jr., for appellant.

Crim & Bassler, Jason D. Darneille, for appellee.

Accordingly, although the trial court’s grant of summary judgment was erroneously based on the nonpermissive user exclusion, as discussed in Division 1 above, the trial court’s ruling was nonetheless correct and is hereby affirmed under the “right for any reason” rule.

Judgment affirmed.

Ray and Branch, JJ., concur in judgment only.

       After the trial court granted summary judgment to Cornerstone, Kovacs filed a motion for reconsideration and attached an affidavit stating that he did not have health insurance at the time of the accident. The trial court denied Kovacs’s motion for reconsideration, and Kovacs did not enumerate that ruling as error. Since Kovacs’s affidavit was filed after the order granting summary judgment was entered, it was not considered by the trial court in reviewing Cornerstone’s motion for summary judgment, and issues raised therein will not now be considered by this Court. See Glenn v. Maddux, 149 Ga.App. 158, 159(2) (253 SE2d 835) (1979); see also Strickland v.DeKalb Hosp.Auth., 197 Ga.App. 63, 64(1) (397 SE2d 576) (1990) (holding that an affidavit in opposition to a motion for summary judgment that is not served at least one day before the hearing “is barred by the Civil Practice Act from consideration as evidence unless the record discloses the trial court, in the exercise of its discretion, has allowed the affidavit to be served and considered”) (citations and punctuation omitted); Mazdak Auto Towing &c. v. Midcontinental Group, 231 Ga. App. 859, 860 (2) (501 SE2d 44) (1998) (“Untimely filed affidavits are barred unless the trial court permits them to be considered.”) (citation omitted).


author: McFadden, Judge.

text:
    A12A1085.
    JONES v. THE STATE.
    (733 SE2d 407)
   McFadden, Judge.

Antonio Jones appeals from his convictions for firearm offenses, challenging the consistency of the verdicts, the trial court’s failure to use a special verdict form, the introduction of his prior conviction, and the trial court’s refusal to give a jury charge on grave suspicion. Because the inconsistent verdicts rule has been abolished in Georgia, and because the trial court did not abuse its discretion in using a general verdict form, in allowing introduction of the prior conviction and in refusing the requested jury charge, those challenges are without merit. However, Jones is correct in his further assertion that the trial court erred in failing to merge the firearm offenses for purposes of sentencing since each of the offenses does not require proof of an additional fact that the other does not. Therefore, we vacate the sentences imposed and remand the case for resentencing.

The record shows that on May 22,2006, Jones used a gun to shoot and kill David Simmons. Jones was charged by indictment with malice murder, two counts of felony murder, aggravated assault, possession of a firearm during the commission of a crime, possession of a firearm by a convicted felon, and use of a firearm by a convicted felon during the commission of another felony. At trial, Jones admitted the shooting, but claimed he acted in self-defense. The jury returned verdicts of not guilty on all of the murder counts and the aggravated assault count, and verdicts of guilty on the three firearm offenses. The trial court entered judgments of conviction as to the firearm offenses, sentencing Jones to serve five years for possession of a firearm during the commission of a crime, five years for possession of a firearm by a convicted felon, and fifteen years suspended for use of a firearm by a convicted felon during the commission of another felony. Jones appeals.

1. Inconsistent verdicts.

Jones argues that the trial court erred in accepting inconsistent verdicts of guilty as to the three firearm offenses and not guilty as to the aggravated assault and murder charges. However, regardless of whether or not the verdicts were inconsistent, there is no prohibition against inconsistent verdicts in Georgia.

In Milam v. State, [255 Ga. 560 (341 SE2d 216) (1986),] the Supreme Court of Georgia abolished the rule against inconsistent verdicts in criminal cases. Appellate courts cannot know and should not speculate why a jury acquitted on one offense and convicted on another offense. The reason could be an error by the jury in its consideration or it could be mistake, compromise, or lenity. Stated another way, it is imprudent and unworkable to allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury’s deliberations that the courts generally will not undertake.

(Citations and punctuation omitted.) Morrell v. State, 313 Ga. App. 443, 445 (1) (721 SE2d 643) (2011).

The case of Turner v. State, 283 Ga. 17 (655 SE2d 589) (2008), cited by Jones, is inapposite. In that case, the abolition of the inconsistent verdicts rule did not apply because the jury’s verdict form made the basis for its verdict clear, and thus the court did not need to speculate about whether the verdict was the product of lenity or legal error. Id. at 20-21 (2). But there is no such verdict form in this case, and this court “will not engage in speculation or unauthorized inquiry regarding [the jury’s] deliberations. [Cit.]” Guajardo v. State, 290 Ga. 172, 175 (2) (718 SE2d 292) (2011).

2. Verdict form.

Jones contends that the trial court should have used a special verdict form like that used in Turner. However, “ [t] he form of a verdict and the submission of a special verdict are within the discretion of the trial court, and, absent an abuse of that discretion, the court’s choice will not be overturned.” (Citation and punctuation omitted.) Hewitt Assocs. v. Rollins, Inc., 308 Ga. App. 848, 852 (2) (708 SE2d 697) (2011). Here, Jones has made no showing that the trial court’s decision to use a general, rather than a special, verdict form was an abuse of discretion. And given that the trial court fully and accurately instructed the jury on the presumption of innocence, the definitions of the crimes charged, the state’s burden of proof, the defense of justification and the form of the verdict, we find no error. See Rogers v. State, 282 Ga. 659, 661 (2) (b) (653 SE2d 31) (2007) (no abuse of discretion in failing to use special verdict form regarding issue of mental retardation where trial court properly instructed jury on statutory definition of mental retardation and the applicable burden of proof).

3. Prior convictions.

Jones claims that the trial court erred in allowing the state to impeach him during his trial testimony by introducing evidence of his prior aggravated assault conviction. However, for purposes of attacking the credibility of a defendant who testifies,

[e]videnee that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more ... if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant.

(Emphasis supplied.) OCGA § 24-9-84.1 (a) (2). Here, after hearing extensive argument from the parties, the trial court expressly found that the probative value of evidence of the prior aggravated assault, a crime punishable by imprisonment of more than a year, substantially outweighed any prejudice to Jones. Jones’ credibility was obviously open to attack by the state since he claimed that he was justified in the shooting death of Simmons. And his claim that he was unfairly prejudiced because his prior conviction was too similar to the murder and aggravated assault charges for which he was tried is unpersuasive since he was acquitted of those charges. But even if he had not been so acquitted, “[t]he decision to admit or exclude evidence lies within the discretion of the trial judge, and this court will not interfere with such discretion unless it has been abused.” (Citation omitted.) Hopkins v. State, 309 Ga. App. 298, 299 (1) (709 SE2d 873) (2011). Despite any similarity between his prior conviction and the underlying charges in this case, Jones has failed to show that admission of the impeachment evidence was an abuse of the trial court’s discretion. See Newsome v. State, 289 Ga. App. 590, 594 (2) (657 SE2d 540) (2008) (no abuse of discretion in admitting prior aggravated assault and possession of a firearm during the commission of a felony convictions for impeachment purposes in a case involving similar charges of aggravated assault and possession of firearm during commission of a felony).

4. Rejected offer to stipulate.

Jones further claims that the trial court erred in not forcing the state to accept his offer to stipulate to the fact that he is a convicted felon, and instead allowing the state to introduce evidence of his prior aggravated assault conviction to prove the “prior felony conviction” element of the counts charging him with possession and use of a firearm by a convicted felon. The claim is without merit.

Generally, a defendant cannot stipulate to facts and thereby obviate the need for proof over the state’s objection to such a stipulation. State v. Dixon, 286 Ga. 706, 708 (2) (691 SE2d 207) (2010). However, the Supreme Court of Georgia has set forth a limited exception to that general rule.

[W]hen (1) a defendant’s prior conviction is of the nature likely to inflame the passions of the jury and raise the risk of a conviction based on improper considerations, and (2) the purpose of the evidence is solely to prove the defendant’s status as a convicted felon, then it is an abuse of discretion for the trial court to spurn the defendant’s offer to stipulate to his prior conviction and admit the evidence to the jury.

(Footnote omitted.) Ross v. State, 279 Ga. 365, 368 (2) (614 SE2d 31) (2005). Here, pretermitting the issue of whether Jones’ prior aggravated assault conviction is of the nature likely to inflame the passions of the jury, is the fact that the purpose of the evidence of the prior conviction was not solely to prove Jones’ status as a convicted felon. Rather, as explained above in Division 3, that evidence was also used for the proper purpose of impeaching Jones’ credibility as a witness. Accordingly, the exception to the general rule does not apply, and the trial court did not err in refusing to force the state to accept Jones’ offer of a factual stipulation.

Moreover, even if the trial court had erred, such an evidentiary error would have been harmless in light of the overwhelming evidence of guilt of the firearm offenses, including Jones’ own testimony admitting that he is a convicted felon and possessed a firearm and shot and killed Simmons. See Ross, supra at 368 (3); Martin v. State, 268 Ga. 682, 684 (3) (492 SE2d 225) (1997).

5. Refusal to charge on bare suspicion.

Jones contends that the trial court erred in refusing his request to give the “bare suspicion” pattern jury instruction, which provides that “[f] acts and circumstances that merely place upon the defendant a grave suspicion of the crime charged or that merely raise a speculation or conjecture of the defendant’s guilt are not sufficient to authorize a conviction of the defendant.” Sherman v. State, 302 Ga. App. 312, 314 (3), n. 1 (690 SE2d 915) (2010). Although the trial court refused such a charge, it did fully and accurately charge the jury on Jones’ presumption of innocence and the state’s burden of proving guilt beyond a reasonable doubt.

[Bjecause the trial court gave complete instructions on reasonable doubt and the presumption of innocence, the charge as a whole covered the principles of law embodied in the “bare suspicion” charge. The trial court[, therefore,] did not abuse its discretion in denying [Jones’] request for the charge.

(Citation and punctuation omitted.) Id. at 314 (3). See also Dulcio v. State, 297 Ga. App. 600, 602 (2) (677 SE2d 758) (2009).

6. Merger.

Jones asserts that the trial court erred in failing to merge, for purposes of sentencing, his convictions both for possession of a firearm during the commission of a felony (OCGA § 16-11-106) and possession of a firearm by a convicted felon (OCGA § 16-11-131) with his conviction for use of a firearm by a convicted felon during the commission of another felony (OCGA § 16-11-133). We agree.

When the same conduct establishes the commission of more than one crime, the accused may be prosecuted for each crime, but he may not be convicted of more than one crime if one crime is included in the other. OCGA § 16-1-7 (a). To determine if one crime is included in another, we apply the “required evidence” test adopted in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006). As explained in Drinkard,

the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

(Citation and punctuation omitted.) Id. at 215. “If so, then there are two offenses, and neither is included in the other.” (Citation and punctuation omitted.) Gaston v. State, 317 Ga. App. 645, 650 (3) (731 SE2d 79) (2012).

Decided October 19, 2012.

Steven L. Sparger, for appellant.

In this case, the same act by Jones, his use of a gun to shoot Simmons, was used to establish violations of OCGA §§ 16-11-106 (b), 16-11-131 (b) and 16-11-133 (b). The count of the indictment charging Jones with use of a firearm in violation of OCGA § 16-11-133 (b) required proof that he had previously been convicted of aggravated assault and that he subsequently used a firearm during the commission of various crimes against Simmons. Thus, that count required proof of the fact that Jones had a prior felony conviction — a fact that was not required by the count charging that Jones had possessed a firearm during the commission of a felony in violation of OCGA § 16-11-106 (b). But this latter count charging a violation of OCGA § 16-11-106 (b) does not require proof ofafact not required by the count alleging a violation of OCGA § 16-11-133 (b). Because each crime does not require proof of a fact not required by the other, Jones may not be convicted and sentenced for each violation. See Drinkard, supra. Indeed, this court has previously held that it was error for a trial court to fail to merge such offenses for sentencing “because the violation of OCGA § 16-11-106 was established by proof of less than all the facts necessary to establish the violation of OCGA § 16-11-133.” (Citations omitted.) Davis v. State, 253 Ga. App. 803, 808 (14) (560 SE2d 711) (2002).

Likewise, the count alleging a violation of OCGA § 16-11-133 (b) required proof of a fact—that J ones had used a firearm during the commission of crimes against Simmons — not required by the count charging that he was a convicted felon who possessed a firearm in violation of OCGA § 16-11-131 (b). But the alleged violation of OCGA § 16-11-131 (b) did not require proof of a fact not required by the alleged violation of OCGA § 16-11-133 (b). Therefore, the violation of OCGA § 16-11-131 (b) also should have been merged with the violation of OCGA § 16-11-133 (b). Accordingly, the sentences for all three offenses are hereby vacated and the case is remanded to the trial court for resentencing consistent with this opinion.

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

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

Larry Chisolm, District Attorney, JulayaunM. Waters, Assistant District Attorney, for appellee.


author: Ray, Judge.

text:
    A12A1115.
    GALBREATH v. BRALEY.
    (733 SE2d 412)
   Ray, Judge.

In this custody modification proceeding, James Galbreath appeals from the trial court’s order granting a motion to quash and issuing a protective order prohibiting him from deposing K. W., a 13-year-old female child that he was accused of molesting. Finding that the trial court should consider other alternatives before prohibiting entirely the deposition from going forward, we vacate the protective order and remand this case for further consideration by the trial court.

The record shows that following a divorce in March 2011, Gal-breath and Amy Braley were granted joint legal custody of their son, with the mother having primary physical custody. In October 2011, the mother filed a petition for modification of the custody agreement and for an emergency suspension of Galbreath’s visitation rights, alleging that “while [his son] was present for visitation with [Gal-breath] , [Galbreath] kissed, fondled and touched a female minor child [K. W.j who was staying at a sleepover at [his] home.” Galbreath sought to take a videotaped deposition of K. W. in connection with these allegations, but K. W.’s parents, as nonparties, filed a motion to quash and for a protective order.

In support of their motion, K. W.’s parents filed the affidavit of Krista L. Barker, a licensed clinical social worker who had treated K. W. during several trauma-focused therapy sessions. In the affidavit, Barker states that K. W. had a history of mistreatment during her early childhood, that she was frail, and that she exhibited symptoms of post-traumatic stress disorder, depression, and age regression dissociative behavior. Because of these symptoms, Barker opined that K. W. “is at extreme risk for her psychological and emotional safety if exposed to any significant stressor” and that K. W. had “specifically identified James Galbreath as a trigger for psychological distress and physiological reactivity.”

In its order granting the motions to quash and for a protective order, the trial court correctly found that there is no Georgia case law addressing whether a minor child must, in a civil case in which she is not a party, submit to a deposition despite expert testimony indicating that the child could be harmed by the taking of the deposition. The trial court then turned to case law from other jurisdictions, finding that when considering whether a protective order should be granted in similar situations, other jurisdictions have “balanced the relevance and importance of the child’s testimony with the potential that the child will be harmed.” The foreign jurisdictions declined to grant the requested protective order, instead imposing restrictions on the deposition in order to limit harm to the child.

The trial court in the instant case, however, while performing a balancing test, decided to grant the requested protective order instead of imposing restrictions on the deposition. The trial court specifically found that although K. W.’s testimony was both “relevant and highly important” to Galbreath in his efforts to defend against the allegations of his ex-wife in the custody case, the potential harm that K. W. might suffer by submitting to a deposition scheduled only two weeks after the alleged abuse, and the fact that neither K. W. nor her parents were parties to the instant litigation, outweighed Galbreath’s interest in her testimony.

In his sole enumeration of error, Galbreath contends that the trial court abused its discretion in granting the motion for a protective order, thereby prohibiting the deposition of K. W. under any circumstance. We agree.

Neither the trial court’s order nor the appellee has pointed to, and we have not been able to locate, a case where a litigant was prohibited entirely from conducting a deposition aimed at seeking information necessary to a party’s case. It is well settled that parties to a lawsuit “may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Further, “the courts of this State have long recognized the overriding policy of liberally construing the application of the discovery law. To hold otherwise would be to give every litigant an effective veto of his adversaries’ attempts at discovery.”

Regarding protective orders, OCGA § 9-11-26 (c) authorizes the trial court “[u]pon motion by a party or by the person from whom discovery is sought and for good cause shown,... [to] make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” The statute then provides for several remedies available to the movant, including, inter alia, that the discovery be limited in certain ways or that the discovery may not be had. Although “[t]he issuance of a protective order is a recognition of the fact that in some circumstances the interest in gathering information must yield to the interest in protecting a party,” protective orders should not be awarded “when the effect is to frustrate and prevent legitimate discovery.” Further, this Court has held that “protective orders are intended to be protective — not prohibitive — and, until such time as the court is satisfied by substantial evidence that bad faith or harassment motivates the discoveror’s action, the court should not intervene to limit or prohibit the scope of pretrial discovery.”

In the present case, the trial court found, as do we, that K. W.’s testimony is clearly relevant to Galbreath’s efforts to defend against his ex-wife’s allegations and to protect his substantial interest in maintaining his rights of visitation. Georgia “has a strong policy in favor of allowing a divorced parent continuing contact with his or her child so long as the parent has demonstrated the ability to act in the child’s best interest.” Accordingly, Georgia courts “will not deny a parent all visitation rights absent exceptional circumstances in which there is reasonable probative evidence that the parent is morally unfit.”* We can assume that allegations of sexual abuse would strongly weigh in favor of a potential finding that Galbreath is morally unfit to continue to have visitation rights with his child. Therefore, we find premature the trial court’s award of a protective order preventing, now and forever, the deposition of K. W. in any form from going forward, such that it prevents and frustrates Galbreath’s legitimate discovery requests.

Accordingly, we vacate the protective order and remand the case to the trial court so that it might reconsider whether and to what extent the deposition of K. W. may go forward without exacerbating any psychological harm that might have occurred due to the alleged molestation. Specifically, the trial court should consider allowing the deposition while imposing reasonable restrictions upon the method by which she might be deposed. In addition to the protective measures outlined in OCGA § 9-11-26 (c) (2)-(6), the trial court should consider the following factors when imposing restrictions on how the deposition might proceed: (1) where the deposition is held; (2) the length of the deposition; (3) who shall be present at the deposition (e.g., K. W.’s mother or counselor); (4) the possibility of breaks as necessary to accommodate K. W.’s reasonable needs; (5) the option to suspend the deposition in the event of an emergency; (6) previewing the questions to be asked at the deposition; and (7) the taking of K. W.’s deposition remotely via audio visual means.

Further, as to the trial court’s conclusion that a material distinction exists between this case and others insofar as neither K. W. nor her parents are parties to the instant action, we disagree. This Court has expressly declined to recognize any distinction in the scope of discovery between parties and nonparties, so long as the discovery sought is specifically related to the cause of action.

Decided October 19, 2012

Donald E. Kennedy, for appellant.

James E. Cornwell, Jr., Richard W. Highsmith, for appellee.

Judgment vacated and case remanded with direction.

Miller, P. J., and Branch, J., concur.

       See Bd. of Regents &c. of Ga. v. Ambati, 299 Ga. App. 804, 810 (4) (685 SE2d 719) (2009) (the grant or denial of a motion for protective order generally lies within the sound discretion of the trial court, and this Court will not interfere with the trial court’s exercise of its discretion absent clear abuse).

        Graham v. City of New York, 2010 WL 3034618, *5 (B) (2) (E.D. N.Y. 2010) (reversing trial court’s grant of protective order prohibiting deposition of six-year-old child who witnessed police forcibly remove his father from car and allowing deposition to go forward if questioning proceeded “cautiously and sensitively”); In re: Transit Mgmt. of Southeast Louisiana, 761 S2d 1270 (La. 2000) (allowing deposition despite seven-year-old child’s doctor and psychologist testifying that deposition would cause mental stress); Kuyper v. Bd. of County Commrs. &c., 2010 WL 4038831 (D. Colo. 2010) (allowing defendants to depose seven-year-old child about sexual abuse she sustained while in foster care, despite expert testimony that such questioning could harm the child, so long as reasonable restrictions were imposed on the manner in which she was deposed); Gray v. Howlett Lumber Co., 2007 WL 2705748 (4) (Mass. Super. 2007) (allowing deposition of ten-year-old despite testimony from child’s counselor that such questioning could harm the child, so long as reasonable restrictions were imposed upon the deposition).

       All of the cases cited by the trial court’s order held that minor children could be deposed, even in the light of expert testimony indicating that submitting to a deposition could potentially harm the minor child, provided that adequate restrictions were imposed upon the deposition process. See footnote 2, supra.

       OCGA § 9-11-26 (b) (1).

       (Citations and punctuation omitted.) McKesson HBOC v. Adler, 254 Ga. App. 500, 505 (3) (562 SE2d 809) (2002).

       OCGA § 9-11-26 (c) (l)-(8).

       (Punctuation and footnote omitted.) Bd. of Regents &c. of Ga., supra at 811 (4) (a).

       (Citation and punctuation omitted.) Intl. Svc. Ins. Co. v. Bowen, 130 Ga. App. 140, 144 (202 SE2d 540) (1973).

       (Citation and emphasis omitted.) McKesson HBOC, supra at 505 (3).

       (Citation and footnote omitted.) Mitchum v. Manning, 304 Ga. App. 842, 843 (698 SE2d 360) (2010).

       (Citation and punctuation omitted.) Id.

       See OCGA § 9-11-26 (c) (2)-(6). See Gray, supra at (4) for factors courts could consider when setting appropriate restrictions on deposing a minor.

       OCGA § 9-11-26 (c) provides that the trial court
      may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:... (2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place; ... (4) That certain matters not be inquired into or that the scope of the discovery may be limited to certain matters; (5) That discovery be conducted with no one present except persons designated by the court; [and] (6) That a deposition, after being sealed, be opened only by order of the court.

       See Sechler Family Partnership a Prime Group, 255 Ga.App. 854, 856 (2) (567 SE2d 24) (2002).


text:
    A12A1230.
    TAYLOR v. THE STATE.
    (733 SE2d 415)
   McFadden, Judge.

After a jury trial, Henry Taylor was convicted of armed robbery and three counts of false imprisonment. He appeals, challenging the sufficiency of the evidence and the effectiveness of his trial counsel. Because there is sufficient evidence to support the jury’s verdict and because he has failed to show either deficient performance by trial counsel or prejudice to the defense, we affirm.

1. Sufficiency of the evidence.

When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

Viewed in favor of the prosecution, the evidence shows that on July 29, 2010, Taylor and Corey Thompson entered a Metro PCS store. As Thompson went to the counter where an employee was working, Taylor approached two women and a child who were in the store, told them he and his partner were about to rob the place, pulled out a gun and cocked it, and forced the women and the child to move to the back of the store and lie on the floor. He and Thompson then went behind the counter, forced the employee to give them $1,367 from the cash register and then made her lie on the floor next to the customers. Taylor and Thompson left the store and were driven away from the scene by Kristy Richardson.

Taylor challenges the sufficiency of the evidence identifying him as one of the perpetrators, noting that there was no fingerprint evidence and that the store employee did not identify him. However, the two women customers unequivocally identified Taylor as the perpetrator who brandished the gun in the store, and co-defendant Richardson also identified him as one of the armed robbers. As noted above, resolving conflicts in the testimony and weighing the evidence were matters for the jury, not this court. Jackson, supra; Miller, supra. Having reviewed all the evidence, we conclude that there is sufficient evidence to support the jury’s finding that Taylor is guilty beyond a reasonable doubt of the crimes charged.

2. Claim of ineffective assistance of counsel.

Taylor claims that his trial counsel was ineffective in failing to call Taylor’s accomplice, Thompson, as a witness; in failing to investigate a witness’ statement that another person was involved in the crimes; and in failing to file a motion to exclude in-court identifications of Taylor. The claims are without merit.

To obtain reversal of a conviction based on a claim of ineffective assistance of counsel, a defendant has the burden of proving that counsel’s performance was deficient, and that, but for the deficiency, there was a reasonable probability the outcome of the trial would have been different. To establish deficient performance, a defendant must show that counsel’s performance fell below an objective standard of reasonableness under the circumstances confronting counsel at the time without resorting to hindsight. In considering adequacy of performance, trial counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

(Citations and punctuation omitted.) Brown v. State, 310 Ga. App. 285, 287-288 (6) (712 SE2d 521) (2011).

(a) Decision not to call Corey Thompson.

At the motion for new trial hearing, trial counsel testified that he made the strategic decision not to call as a witness Thompson, who pled guilty to the charges prior to Taylor’s trial, because he had given a statement to the police that incriminated Taylor. “Decisions based on counsel’s reasonable trial strategy do not constitute deficient performance, and reviewing courts do not evaluate trial counsel’s tactics and strategic decisions in hindsight.” (Citation and punctuation omitted.) Davis v. State, 293 Ga. App. 799, 802 (3) (668 SE2d 290) (2008). Thus, Taylor has failed to show that the tactical decision not to call Thompson constituted deficient performance. See Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008) (strategic decisions regarding which witnesses to call within exclusive province of the attorney).

Moreover, Thompson did not testify at the motion for new trial hearing, and Taylor has not shown what his testimony would have been had he been called as a witness at trial. “Without a proffer of evidence that would have been admissible and favorable to his case, [Taylor] has failed to demonstrate a reasonable probability that the testimony of these witnesses would have affected the outcome at trial.” Thomas v. State, 282 Ga. 894, 896 (2) (a) (655 SE2d 599) (2008).

(b) Decision not to question witness about alleged third party perpetrator.

At trial, the defense called DeShea Jones as a witness to support Taylor’s alibi defense that he was in Alabama at the time of the crimes. Taylor contends that his trial attorney should have bolstered this defense by also investigating and questioning Jones about her out-of-court statement that another person was possibly involved in the crimes. However, at the motion for new trial hearing, counsel explained that when he talked to Jones prior to trial, he tried to get information from her about this person, but she gave only general information and could not provide a name, address or any other specific information that would actually lead to the purported third party. Moreover, Jones did not testify at the new trial hearing, and Taylor did not present any other evidence showing that this alleged third party, rather than Taylor, was a perpetrator. Taylor was required to offer more than mere speculation that further investigation and testimony would have bolstered his defense at trial. Mangrum v. State, 291 Ga. 529 (731 SE2d 761) (2012).

In the absence of any affirmative showing supporting [his] defense and that a negligent oversight by counsel prevented any alleged [defense] from being presented to the jury, [Taylor] cannot show a reasonable probability that the results of his trial would have been different. [Cit.]

Faniel v. State, 291 Ga. 559, 564 (3) (b) (731 SE2d 750) (2012).

Decided October 19, 2012.

Kearston M. Gill, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

(c) Decision not to move to suppress in-court identification.

Taylor has not shown any basis for trial counsel to have filed a motion to suppress in-court identification of him by the victims. The identifications were appropriate because the victims “had ample opportunity to see appellant at the scene of the crime and there were no impermissibly suggestive pre-trial identification procedures involved in the case.” (Citations and punctuation omitted.) Williams v. State, 174 Ga. App. 56, 57 (1) (329 SE2d 226) (1985). And any claim that the identifications were tainted because the defendant was the only black male sitting at the defense table has previously been rejected by this court and the Supreme Court of Georgia. See Ralston v. State, 251 Ga. 682, 684 (2) (309 SE2d 135) (1983); Tilley v. State, 201 Ga. App. 360, 361 (1) (411 SE2d 100) (1991); Manning v. State, 162 Ga. App. 494 (1) (292 SE2d 95) (1982). Accordingly, “any motion to suppress [in-court identification] would have been without merit, and as a matter of law, an accused is not deprived of the effective assistance of counsel when his lawyer fails to file a motion that has no merit. [Cits.]” White v. State, 310 Ga. App. 386, 388 (1) (714 SE2d 31) (2011).

Judgment affirmed.

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


text:
    A12A1502.
    THE STATE v. MOORE.
    (733 SE2d 418)
   McFadden, Judge.

A jury convicted Lawrence Benjamin Moore, Jr., of the rape of J. S. But the trial court granted a new trial, finding that Moore had been denied the effective assistance of counsel. The state had improperly commented on Moore’s pre-arrest silence, but defense counsel had failed to object. The state appeals. The state contends, notwithstanding that Moore later voluntarily turned himself in, that its improper comments referred to flight, not pre-arrest silence and that trial counsel was therefore not ineffective for failing to object. And notwithstanding that the physical evidence was equally consistent with rape and with consensual sex and that the testimonial evidence was in conflict, the state further contends that the evidence of guilt is overwhelming and that any deficiencies in trial counsel’s performance were therefore harmless. We are not persuaded. We agree with the trial court that counsel’s performance was deficient and that there is reasonable probability that, but for counsel’s error, the outcome of the trial would have been different. We therefore affirm the grant of Moore’s motion for new trial.

To prevail on his claim of ineffective assistance of counsel, Moore was required to show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985).

When determining deficient performance, we address not what is prudent or appropriate, but only what is constitutionally compelled. The appropriate test for whether [Moore’s] counsel was deficient is whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. Perfection is not required; an ineffectiveness analysis is simply intended to ensure that the adversarial process at trial worked adequately.

(Citations and punctuation omitted.) Head v. Carr, 273 Ga. 613, 625 (4) (C) (3) (544 SE2d 409) (2001). As to the prejudice component, “[t]he defendant must show that there is 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.” Strickland, 466 U. S. at 694 (III) (B). In other words, the defendant must show that “there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695 (III) (B). “A claim of ineffective assistance of counsel is a mixed question of law and fact. The proper standard of review requires that we accept the [trial] court’s factual findings unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citations omitted.) Head, 273 Ga. at 616 (4). We set out the evidence with these principles in mind.

1. Facts and proceedings below.

Moore was a neighbor and friend of T. R.’s and would spend time with her at her house. J. S., whomMoore was convicted of raping, was temporarily living at T. R.’s house. On the evening in question, Moore and J. S. were at the house while T. R. had gone to pick up her boyfriend. Once T. R. returned to the house with her boyfriend, she, her boyfriend, J. S. and Moore went outside to socialize. Eventually J. S. went inside to go to sleep on the couch in the den.

Some time later, T. R., her boyfriend and Moore returned inside. T. R. and her boyfriend went upstairs while Moore stayed in the den, the same room in which J. S. was lying on the couch. At some point, Moore began having intercourse with J. S. J. S. told Moore she had to use the bathroom and then ran to T. R.’s bedroom, where T. R. and her boyfriend were getting ready for bed, and told them that Moore had raped her. J. S. was hysterical: she was crying and shaking, and she vomited. T. R. or her boyfriend called the police and then confronted Moore, who left the house.

J. S. testified that she was sleeping and awoke to find Moore having intercourse with her without her consent. Moore testified that he and J. S. had had a consensual sexual relationship, and they had consensual sex on the night in question.

The nurse who conducted a rape examination of J. S. testified that J. S. was visibly upset. The nurse found no visible signs of trauma. This was, of course, equally consistent with J. S. having been asleep at the time of the intercourse or with the intercourse having been consensual.

The testimony at issue was primarily that of Detective Ben Ervin, who testified that on the morning of the incident, he telephoned Moore and informed him

that I was a detective with the Gwinnett County Police and that I was investigating a rape and that he was named as the suspect and I needed to speak with him about it. And he said that he could not speak with me at this time. He said that he was on his way to Augusta, South Carolina.
I told him that: You understand that you’re a suspect in a rape, a felony, and you’re telling me now that, instead of talking to me, you’re going to go to South Carolina? He said: I can’t talk to you right now. I would love to talk to you later, but I can’t do it right now. He said that he would be back later — in town later that week.
I didn’t call him back. I told him that if he didn’t come — if he didn’t come speak with me, I only had one option, which was to take a warrant out for his arrest. He said that if I took a warrant for his arrest, he wasn’t going to talk to me anyway.

Moore testified, and defense counsel asked him about the detective’s testimony. Moore explained that he did not go to the police department to speak with the detective because he was planning to go to Augusta, Georgia, to confront his son, who said he was dropping out of college. On cross-examination, the prosecutor asked Moore to concede that at the time of trial, he knew what the state’s evidence was, but when he spoke with the detective, he did not. The prosecutor asked Moore, “Not one time in that phone conversation with . . . Detective Ervin did you tell him you had consensual sex with her, did you?” Moore responded, “No, sir; and not one time did he ever ask me.”

In closing argument, the prosecutor told the jury:

But he had the opportunity to speak to a detective, to give his side. You met with Detective Ervin. He told you that after he met with [J. S.] at the [medical facility], he took her testimony, interviewed her, took custody of the rape kit, sent everything off. And then what did he do? He called the defendant. He said: I’m investigating a lead on a rape. I want to meet with you. Let’s talk. Tell me your story. I’m listening.
What does he say? What does the defendant say? I’m on my way to Augusta. He’s on his way to Augusta. He’s confronted with the fact the he is being a suspect in a rape case, and he’s on his way to Augusta.
Do you want to know why he didn’t talk to officers that day? It’s because he didn’t know what to tell officers. He didn’t know the [s]tate’s evidence. He didn’t know what we had against him. He couldn’t give them a story. But instead, he waits until this week, after he’s read all of the reports, watched all the witnesses walk in through this courtroom and sit there in that seat and tell them what you know, and then what he’s done is he’s fabricated this story to fit.
He couldn’t talk to Detective Ervin. He didn’t know what to say. You’re faced with rape charges, you’re a suspect in a rape, and you leave, not only the county, but the state.

At the motion for new trial hearing, defense counsel testified that he did not know that under Georgia law (as detailed below), the state may not comment on a defendant’s pre-arrest silence. Counsel testified that allowing the jury to hear that Moore refused to talk with Ervin was not part of his trial strategy and hurt Moore’s credibility. He explained that he questioned Moore on the issue only to minimize the effect of Ervin’s testimony; if the state had not asked Ervin the questions, then defense counsel never would have gone into Moore’s pre-arrest silence.

2. Failure to object to improper comment on pre-arrest silence.

The trial court found that the state intentionally elicited improper testimony and improperly commented on Moore’s pre-arrest silence in violation of Mallory v. State, 261 Ga. 625 (409 SE2d 839) (1991), recognized as overruled on other grounds in Clark v. State, 271 Ga. 6 (5) (515 SE2d 155) (1999), and that trial counsel’s failure to object was deficient. We agree.

Our Supreme Court has drawn a bright-line rule prohibiting comments upon a defendant’s pre-arrest silence or failure to come forward. While recognizing that the Supreme Court of the United States had reached a different conclusion as to the applicable federal Constitutional law, our Supreme Court nevertheless held, as a matter of Georgia law, that

in criminal cases, a comment upon a defendant’s silence or failure to come forward is far more prejudicial than probative. Accordingly, . . . such a comment will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.

Mallory, 261 Ga. at 630 (5). Our Supreme Court recently reaffirmed its ad herence to Mallory and overturned a line of cases that had “attempt [ed] to distinguish and limit Mallory on its facts,” holding that the “factual differences [on which those cases had turned] fail to provide support for the eroding of this Court’s determination of the potential for prejudice stemming from the State’s comment on a defendant’s pre-arrest silence.” Reynolds v. State, 285 Ga. 70, 71-72 (673 SE2d 854) (2009).

Defense counsel’s failure to object to such comments amounts to deficient performance. See, e.g., Thomas v. State, 284 Ga. 647, 649 (3) (a) (670 SE2d 421) (2008); Lampley v. State, 284 Ga. 37, 38-39 (2) (b) (663 SE2d 184) (2008); Scott v. State, 305 Ga. App. 710, 716 (2) (a) (700 SE2d 694) (2010); Reynolds v. State, 300 Ga. App. 353-354 (2) (685 SE2d 346) (2009).

[T]rial counsel’s testimony established that his failure to object to these improper arguments [and testimony] arose not from strategy, but from his mistaken belief that they were not objectionable. We must conclude, therefore, that counsel’s performance was deficient, leaving us to consider whether the deficiency prejudiced [Moore’s] defense.

(Citations and punctuation omitted.) Scott, 305 Ga. App. at 716 (2) (a).

The state argues that the testimony and closing argument at issue were not comments on Moore’s pre-arrest silence but instead were permissible comments on Moore’s flight. Ervin testified that he told Moore that he “needed to speak with him about it. And he said that he could not speak with me at this time.” On cross-examination, the prosecutor asked Moore to acknowledge that he never told Ervin the intercourse was consensual. In the closing argument, the prosecutor told the jury that Moore “didn’t talk to officers that day . . . because he didn’t know what to tell officers” and that Moore “couldn’t talk to Detective Ervin. He didn’t know what to say.” Even if there is some merit to the argument that Moore — who later turned himself in voluntarily — was fleeing from justice, these are impermissible comments. See Pearson v. State, 277 Ga. 813, 817 (5) (c) (596 SE2d 582) (2004) (holding that although portions of prosecutor’s closing argument were permissible comments on defendant’s flight, other portions were impermissible comments on his pre-arrest silence and failure to come forward).

3. Probability that the outcome of the trial could have been different.

The state argues that the evidence of Moore’s guilt is overwhelming and that consequently there is no reasonable probability that the outcome of the trial would have been different even if trial counsel was ineffective. We do not agree.

The outcome of the trial depended on whether or not the jury found the intercourse to be consensual. There were no eyewitnesses and no physical evidence indicating the use of force. Although the state reinforced J. S.’s testimony that she had not consented to intercourse with testimony from outcry witnesses, the jury’s determination of the credibility of Moore and J. S. was critical to its verdict. The trial court concluded that the state’s comments on Moore’s pre-arrest silence impacted his credibility, making it reasonably probable that the outcome of the trial would have been different had defense counsel objected.

We consider a number of factors when considering whether the state’s unchallenged comments or questions about a defendant’s right to remain silent have prejudiced that defendant, including

whether the error was an isolated incident, or instead consisted of several questions or comments, and whether the error was inadvertent, rather than a deliberate attempt by the [s]tate to use the defendant’s silence against him. We also examine the “trial context” of the error, and take a particularly dim view of the [s]tate’s conduct in arguing during closing that evidence of the defendant’s silence should be viewed as evidence of his guilt. Finally, we analyze whether, in light of the evidence presented, there was a possibility that the [s]tate’s improper comments contributed to the guilty verdict. In other words, we examine whether the evidence of the defendant’s guilt was overwhelming or whether the evidence was conflicting.

Decided October 19, 2012.

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

Sharon L. Hopkins, for appellee.

(Citations omitted.) Scott, 305 Ga. App. at 717 (2) (a).

Applying these factors, we conclude that the error was not isolated. The error occurred in the direct examination of Ervin — which led defense counsel to elicit testimony from Moore in an effort to minimize the effect of Ervin’s testimony — and in the state’s cross-examination of Moore. The error also occurred in the state’s closing argument, where the state implied that Moore refused to speak with Ervin because he needed time to fabricate a story to cover his guilt. Further, we agree with the trial court that the evidence of Moore’s guilt was not overwhelming. For these reasons, we conclude that the trial court correctly determined there is a reasonable probability that trial counsel’s deficient performance affected the outcome of the trial.

Judgment affirmed.

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