author: Doyle, Presiding Judge. MCFADDEN, Judge,

text:
    A13A1333.
    BICKEL v. THE STATE.
    (749 SE2d 1)
   Doyle, Presiding Judge.

Harry Croft Bickel, Jr., appeals from the trial court order revoking his probation and ordering him to serve a five-year term of incarceration. After the trial court denied his motion for new trial, Bickel filed an application for discretionary appeal, which this Court granted. Bickel now argues that the trial court erred by ordering a five-year term of incarceration upon revocation because his mental illness prevents him from complying with the probation conditions; and that the trial court erred by denying his motion for new trial before a different judge because Bickel previously had consulted the revocation judge, who therefore had extra-judicial knowledge of relevant facts. For the reasons that follow, we affirm.

The record shows that Bickel pleaded guilty to child molestation in 2002 and was sentenced to 20 years of probation. On March 14, 2012, Bickel was arrested on a probation warrant, and thereafter, on March 20, the State filed a petition for modification or revocation of probation. The petition alleged that Bickel violated the terms of probation by (1) possessing less than one ounce of marijuana; (2) failing to avoid vicious and injurious habits, including marijuana and alcoholic intoxication; (3) consuming alcoholic beverages in violation of sex offender condition 19; (4) using mind-altering drugs in violation of sex offender condition 22; and (5) violating special conditions of probation imposed during a previous probation revocation based on the above-stated violations.

At the revocation hearing, Bickel admitted all of the allegations except that he claimed not to have been intoxicated on alcohol but instead merely consumed alcoholic beverages. The State presented evidence that on February 6, 2012, probation officers made a visit to Bickel’s home and discovered a six-pack of beer bottles and two partially consumed 40-ounce beers in the refrigerator. The officers also discovered a quarter-ounce of marijuana in a kitchen drawer and a small container of marijuana beside the couch upon which Bickel had been sitting when the officers arrived. Bickel admitted to the officers that he had consumed at least part of the alcohol, and he appeared to be intoxicated.

After a hearing, the trial court found that Bickel had violated numerous terms of his probation in the manners alleged in the State’s petition, revoked his probation on that basis, and sentenced him to five years of incarceration.

Bickel filed a motion for new trial, arguing that the trial judge should grant a new hearing on the revocation petition because the judge had confidential information regarding Bickel’s marijuana use that he had obtained when Bickel consulted him regarding potential representation. The trial court denied this motion without explanation.

1. Bickel argues that the trial court erred by sentencing him to five years of incarceration after revoking his probation because he has a mental disorder that affects his ability to comply with the provisions of probation. We disagree.

A trial court may revoke a probated sentence if the evidence produced at the revocation hearing establishes by a preponderance of the evidence that the defendant violated a condition of his probation. Accordingly, if the record includes some competent evidence to show that the defendant violated the terms of his probation, this court will affirm the judgment of revocation.
If the violation of probation or suspension alleged and proven by a preponderance of the evidence or the defendant’s admission is the violation of a special condition of probation or suspension of the sentence, the court may revoke the probation or suspension of the sentence and require the defendant to serve the balance or portion of the balance of the original sentence in confinement.

At the revocation hearing, Bickel presented testimony, including from his treating doctor, that he uses marijuana in order to treat his depression and that his condition has been difficult to treat. Nevertheless, the trial court did not err by sentencing Bickel to five years imprisonment on the basis of the admitted violations. There was evidence that Bickel used and possessed marijuana and that he used alcohol. The trial court was authorized to accept as true the testimony of officers that Bickel was intoxicated when they visited his home. The fact that Bickel may choose to self-medicate his depression with marijuana rather than with other forms of treatment, medicinal or otherwise, does not establish error on the part of the trial court in sentencing him to five years incarceration on the basis of the violations.

2. Bickel contends that the trial court erred by denying his motion for new trial filed on the ground that he should receive a new revocation hearing before a different judge. We disagree.

Pursuant to Canon 3 (E) (1) (a) of the Georgia Code of Judicial Conduct, “[jjudges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, including” cases in which “the judge has . . . personal knowledge of disputed evidentiary facts concerning the proceeding.” According to the preamble of the Code, “knowledge . . . denotes actual knowledge of the fact in question[, and a] person’s knowledge may be inferred from circumstances.”

Bickel contends that Judge House, who presided over his revocation hearing, should have granted his motion for new trial on the basis that the judge had extra-judicial knowledge of Bickel’s marijuana use, which the judge had garnered from a consultation Bickel sought from him during Bickel’s earlier divorce proceedings. After the revocation hearing, Bickel told a third party about Judge House’s representation, who later relayed that information to Bickel’s revocation attorney.

Rule 25.1 of the Uniform Rules for the Superior Courts provides in part:

All motions to recuse or disqualify a judge presiding in a particular case or proceeding shall be timely filed [within five days after the affiant first learns of the alleged grounds for disqualification, and not later than ten days prior to the hearing at issue] in writing and all evidence thereon shall be presented by accompanying affidavit(s) which shall fully assert the facts upon which the motion is founded.

Here, although Bickel’s revocation hearing occurred on April 25, 2012, his motion for new trial alleging that Judge House had extrajudicial knowledge of relevant facts was not filed until May 23, 2013, which date, even assuming that Bickel did not realize Judge House would preside over the hearing, was well outside of five days from the time Bickel would have realized the conflict at the hearing. And the motion lacked any supporting affidavit on the matter. Bickel admitted at the motion for new trial hearing that he knew at the beginning of the revocation hearing that he had previously consulted with Judge House, but he did not tell his attorney at that time, and therefore, the motion failed on the grounds that it was neither timely nor legally sufficient.

Moreover, even if Bickel had timely filed such a motion, it does not appear that Bickel provided Judge House with any information different from that which Bickel himself presented at the revocation hearing — Bickel’s history of marijuana use to treat his ongoing issues with depression.

Judgment affirmed.

Boggs, J., concurs. McFadden, J., concurs fully and specially.

MCFADDEN, Judge,

concurring fully and specially.

I concur fully in the majority’s opinion. I write separately to acknowledge that judges are required to recuse themselves sua sponte under certain circumstances. But a judge is under no obligation to recuse sua sponte “absent a violation of a specific standard of OCGA § 15-1-8 or Canon 3 (E) (1) (a) through (c) of the Code of Judicial Conduct, which is not waived by a party after disclosure.” Hargrove v. State, 299 Ga. App. 27, 31 (2) (681 SE2d 707) (2009) (citation and punctuation omitted). In support of his argument, Bickel points to Canon 3 (E) (1) (a), which pertinently provides that judges shall disqualify themselves in any proceeding where their impartiality might reasonably be questioned, including when the judge has personal knowledge of disputed evidentiary facts concerning the proceeding. In construing Canon 3, however, we have held that “[a] trial judge’s failure to sua sponte recuse [himself] will warrant reversal only where the conduct or remark of the judge . . . support [s] the inescapable conclusion that a reasonable person would consider the judge to harbor a bias that affects his ability to be impartial.” Lemming v. State, 292 Ga. App. 138, 141 (1) (663 SE2d 375) (2008) (citations and punctuation omitted). Under this standard, the trial judge’s prior consultation with Bickel, during which Bickel discussed his marijuana use, does not require reversal given that Bickel admitted the allegations pertaining to marijuana at his probation revocation hearing.

Decided September 24, 2013.

Charles G. Wright, Jr., for appellant.

Herbert E. Franklin, Jr., District Attorney, Elizabeth O. Evans, Assistant District Attorney, for appellee.

       Bickel explains that he does not challenge his guilt as to the violation of the probation term; rather he contends that the disposition was an abuse of discretion based on the evidence presented at the hearing.

       The allegation does not state whether the vicious or injurious habit was using or possessing marijuana.

       (Citations and punctuation omitted.) Killian v. State, 315 Ga. App. 731, n. 1 (728 SE2d 258) (2012). See also OCGA § 42-8-34.1 (b).

       (Punctuation omitted.) Chester v. State, 287 Ga. App. 70, 72 (651 SE2d 360) (2007), quoting OCGA § 42-8-34.1 (e).

       See, e.g., Killian, 315 Ga. App. at 731-732.

       Bickel explained at the motion for new trial hearing that he was not represented by Judge House, who was elected to the bench “prior to his case.”

       See also Birt v. State, 256 Ga. 483, 485-486 (4) (350 SE2d 241) (1986).

       See Brice v. State, 242 Ga. App. 163, 167 (7) (529 SE2d 178) (2000). Bickel presents no supporting authority to his contention that USCB. 25.1 does not apply.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A13A1557.
    LABMD, INC. v. ADMIRAL INSURANCE COMPANY.
    (749 SE2d 11)
   BARNES, Presiding Judge.

This case involves a dispute over whether appellee Admiral Insurance Company owed a duty to defend Dr. Adnan Tabrez Savera in an underlying lawsuit that appellant LabMD, Inc. filed against Dr. Savera. Admiral filed the instant declaratory judgment action, seeking a declaration that it owed a duty to defend Dr. Savera under an insurance policy that Admiral had issued to LabMD as the named insured. The trial court granted summary judgment to Admiral on both its declaratory judgment claim and LabMD’s counterclaims. On appeal, LabMD contends that the trial court erred in granting summary judgment to Admiral and in denying its motion to compel certain depositions. Admiral, however, has filed a motion to dismiss the appeal in which it argues that the questions raised by LabMD have become moot, depriving this Court of jurisdiction. For the reasons discussed below, we agree with Admiral that the questions raised by LabMD are moot. Accordingly, Admiral’s motion is granted, and the appeal is dismissed.

The record reflects that Dr. Savera was employed by LabMD as its medical director and chief genitourinary pathologist. An employment dispute ensued, and LabMD sued Dr. Savera for breach of fiduciary duty and other claims (the “underlying lawsuit”).

Dr. Savera tendered the underlying lawsuit to Admiral based on an insurance policy that Admiral had issued to LabMD. He contended that he was an “insured” under the terms of the policy with respect to the claims asserted against him by LabMD in the underlying lawsuit, and that, as a result, Admiral had a duty to defend him in that litigation.

Admiral agreed to defend Dr. Savera in the underlying lawsuit pursuant to a reservation of rights. LabMD then accused Admiral of having a conflict of interest and breaching its fiduciary duties owed to LabMD as the named insured under the policy. In response, Admiral filed this action, seeking a declaratory judgment that the insurance policy required it to defend Dr. Savera in the underlying lawsuit. LabMD answered and denied that Dr. Savera was owed a defense under the policy. LabMD later filed an amended answer in which it asserted several counterclaims, including that Admiral had breached its fiduciary duties owed to LabMD and had breached the insurance contract by agreeing to defend Dr. Savera.

Duringthe course of the declaratory judgment action, a discovery dispute arose between Admiral and LabMD over the deposition of certain witnesses. Ultimately, LabMD filed a motion to compel the depositions of several Admiral employees and its OCGA § 9-11-30 (b) (6) representative. The trial court denied the motion to compel.

Admiral filed a motion for summary judgment on its declaratory judgment claim, arguing that it owed a duty to defend Dr. Savera in the underlying lawsuit as a matter of law. Additionally, Admiral argued that LabMD’s counterclaims were procedurally improper because LabMD failed to seek leave of court to file them after filing its initial answer. Admiral further argued that the counterclaims failed on the merits as a matter of law. The trial court agreed with Admiral and granted summary judgment in its favor, leading to this appeal by LabMD.

After LabMD filed its notice of appeal, the underlying lawsuit between LabMD and Dr. Savera was tried before a jury. At the end of the trial, the jury returned a verdict in favor of Dr. Savera. During the trial of the underlying lawsuit, Admiral provided a defense to Dr. Savera, and the applicable liability limit on the insurance policy was exhausted by the costs of the defense.

1. On appeal in the present case, LabMD contends that the trial court erred in granting summary judgment in favor of Admiral on its declaratory judgment claim. According to LabMD, Admiral did not owe a duty to defend Dr. Savera in the underlying lawsuit under the plain terms of the insurance policy. However, all issues relating to the grant of Admiral’s declaratory judgment claim are now moot.

“A case is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights [.]” (Citation and punctuation omitted; emphasis in original.) Scarbrough Group v. Worley, 290 Ga. 234, 236 (719 SE2d 430) (2011). Furthermore, in the context of a declaratory judgment action, a claim becomes moot “where the rights of the parties have already accrued and there is no risk to the petitioner of future undirected action.” McRae, Stegall, Peek, Harman, Smith & Manning v. Ga. Farm Bureau Mut. Ins. Co., 316 Ga. App. 526, 530 (729 SE2d 649) (2012). In other words, a declaratory judgment action cannot simply confirm actions already taken by an insurer, see Norfolk & Dedham Mut. Fire Ins. Co. v. Jones, 124 Ga. App. 761, 764 (2) (186 SE2d 119) (1971), and, consequently, a declaratory judgment action regarding an insurer’s duty to defend can be rendered moot where the underlying liability lawsuit has proceeded to judgment. See, e.g., Morgan v. Guaranty Nat. Co., 268 Ga. 343, 344-346 (489 SE2d 803) (1997). “Regardless of when an action reaches that posture, it is still an action which presents no justiciable controversy because the issue (whether to defend) has become dead or academic.” Empire Fire & Marine Ins. Co. v. Metro Courier Corp., 234 Ga. App. 670, 673 (1) (c) (507 SE2d 525) (1998). See Clarke v. City of Atlanta, 231 Ga. 84, 84-85 (200 SE2d 264) (1973) (dismissing appeal of declaratory judgment action that became moot during pendency of the appeal).

Here, as previously indicated, Admiral has submitted evidence that it provided a defense to Dr. Savera in the underlying lawsuit that has now proceeded to judgment, and that the applicable liability limit on the insurance policy has been exhausted by the costs of the defense. LabMD does not dispute these facts. Accordingly, the defense of Dr. Savera “is now an accomplished fact,” and there is no remaining “uncertainty or insecurity [for which Admiral] need[s] guidance before acting.” Clarke, 231 Ga. at 85. We therefore conclude that all issues relating to the grant of summary judgment on Admiral’s declaratory judgment claim have been rendered moot. See id.

2. Although somewhat unclear from its brief, LabMD also appears to challenge the trial court’s grant of summary judgment in favor of Admiral on its counterclaims for breach of fiduciary duty and breach of the insurance contract. Unlike the declaratory judgment claim, these counterclaims are not rendered moot by the underlying lawsuit having proceeded to judgment. See, e.g., Adams v. Atlanta Cas. Co., 225 Ga. App. 482, 485-486 (2) (484 SE2d 302) (1997) (counterclaims pertaining to insurance coverage issue were not rendered moot, even though declaratory judgment claim was moot because the underlying lawsuit had proceeded to judgment). We nevertheless conclude that the issues raised on appeal relating to the grant of summary judgment to Admiral on these counterclaims are moot, but for a different reason.

LabMD’s argument for why summary judgment was inappropriate focuses on whether Admiral had a duty to defend Dr. Savera in the underlying lawsuit under the terms of the insurance policy. But the trial court granted summary judgment to Admiral on LabMD’s counterclaims on the additional procedural ground that LabMD failed to seek leave of court to file them after the initial answer had been filed. See OCGA § 9-11-13 (f) (“When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment”) (emphasis supplied). LabMD provides no citations to the record or legal argument as to why the trial court erred in granting summary judgment to Admiral on this procedural ground, and thus any such argument has been abandoned for purposes of appeal. See Court of Appeals Rule 25 (c) (2). It follows that the portion of the trial court’s order concluding that LabMD’s counterclaims were procedurally defective will stand affirmed, irrespective of whether LabMD is correct that Admiral had no duty to defend Dr. Savera in the underlying lawsuit. See Ray v. Hartwell R. Co., 289 Ga. 452, 452-453 (711 SE2d 722) (2011).

Decided September 24, 2013.

Kathy R. Bess, for appellant.

Freeman, Mathis & Gary, Philip W. Savrin, Jonathan J. Kandel, for appellee.

A question is moot on appeal if resolution of the question by this Court “would be of no benefit to the complaining party.” (Citations and punctuation omitted.) Ray, 289 Ga. at 453. In this case, even if this Court determined that the trial court erred in concluding that Admiral had a duty to defend Dr. Savera, LabMD would not be entitled to a reversal of summary judgment on its counterclaims in view of the trial court’s unchallenged ruling that the counterclaims were procedurally defective. Accordingly, LabMD would not benefit from resolution of the issues it has raised on appeal regarding the grant of summary judgment to Admiral on its counterclaims, and those issues therefore are moot. See id.

3. LabMD also contends that the trial court erred in denying its motion to compel the depositions of an Admiral representative under OCGA § 9-11-30 (b) (6) and of several Admiral employees so that LabMD could obtain discovery to defend against the declaratory judgment claim and to support its own counterclaims. However, because all issues relating to the disposition of the declaratory judgment claim and the counterclaims are moot for the reasons discussed supra in Divisions 1 and 2, all discovery issues relating to those claims are likewise moot and will not be addressed on appeal.

Appeal dismissed.

Miller and Ray, JJ., concur.

       LabMD has separately appealed from the judgment entered in the underlying lawsuit. See LabMD, Inc. v. Savera, Case No. A13A1232, decided September 16, 2013 (unpublished).

       LabMD also asserted several declaratory judgment counterclaims, which are moot for the same reasons discussed supra in Division 1.


author: Miller, Judge.

text:
    A13A0635.
    KINSALA v. HAIR et al.
    (747 SE2d 887)
   Miller, Judge.

William Kinsala sued George and Patricia Hair raising claims of fraud and misrepresentation in relation to the sale of a vehicle. The magistrate court entered a judgment in favor of the Hairs, and on appeal to the state court, the state court affirmed. Following a subsequent hearing, the state court awarded attorney fees to the Hairs on the basis that Kinsala brought the action to the state court in bad faith, was stubbornly litigious, and caused the Hairs unnecessary trouble and expense. We granted Kinsala’s application for discretionary review, and this appeal ensued. Kinsala contends that the state court lacked jurisdiction to hear an award of fees under OCGA § 9-15-14, it abused its discretion in awarding fees, and the award was not supported by sufficient evidence. For the following reasons, we reverse and remand.

On appeal from the entry of judgment in a bench trial, we view the evidence in the light most favorable to the trial court’s verdict. Cox Interior, Inc. v. Bayland Properties, LLC, 293 Ga. App. 612, 613 (1) (667 SE2d 452) (2008). So viewed, a friend of George Hair bought a 1967 Ford Fairlane that he intended to restore. When George’s friend became sick, he asked George to sell the vehicle for him. George listed the vehicle on eBay, and Kinsala, who lived in Texas, responded to the advertisement. Kinsala contacted George and asked about the vehicle’s condition. Kinsala also contacted someone in Georgia to meet George personally, and this person also inspected the vehicle for about 45 minutes. George offered to have the vehicle undergo a more thorough inspection, but Kinsala declined the offer. Although it was discovered that the vehicle had some rust and some other issues, Kinsala contacted George and agreed to buy the vehicle.

Kinsala wired money to George Hair and arranged for the transport of the vehicle. After Kinsala received the vehicle, he inspected it more thoroughly. Kinsala believed that George made several misrepresentations about the vehicle and requested that George take the vehicle back and refund his money. When George refused, Kinsala filed suit against the Hairs in the magistrate court, claiming fraud and misrepresentation. In their answer, the Hairs denied liability, argued that Kinsala’s claims were groundless and, citing the language of OCGA § 13-6-11, sought damages and litigation expenses. Following a bench trial, the magistrate court ruled in favor of the Hairs.

Kinsala appealed the magistrate’s ruling to the state court, and the state court held a de novo bench trial. Following the presentation of evidence, Patricia Hair moved to dismiss any claims against her because there was no evidence that she was involved in the sale of the vehicle. Kinsala stated that he had no objections based on the evidence. The state court rebuked Kinsala for not dismissing Patricia Hair sooner since he was aware of all the admissible evidence based on the prior hearing before the magistrate court. The state court found that Kinsala lacked a good faith basis to sue Patricia Hair and there was no evidence of damages. Accordingly, the trial court entered a judgment in favor of the Hairs and ordered a hearing to determine “whether costs, expenses, and damages sought by the [Hairs] should be awarded.” Following a hearing, the state court awarded attorney fees and costs to the Hairs in the amount of $29,404.40. This appeal ensued.

We agree with Kinsala that the state court erred in awarding attorney fees in this case.

1. “Generally, an award of attorney fees is not available in Georgia unless authorized by statute or contract.” (Punctuation and footnote omitted.) In re Serpentfoot, 285 Ga. App. 325, 328 (4) (a) (646 SE2d 267) (2007). In this case, the state court did not specify the statutory basis for the award. The state court merely stated that “this action was brought against [the Hairs] without just cause and that, in so doing, [Kinsala] acted in bad faith, was stubbornly litigious and caused [the Hairs] unnecessary trouble and expense.” The state court’s findings tracked the language found in OCGA § 13-6-11, which provides that, while litigation expenses are generally not recoverable, such expenses, including attorney fees, may be recovered where the plaintiff has specially pled them and where the defendant has (1) acted in bad faith, (2) been stubbornly litigious, or (3) caused the plaintiff unnecessary trouble and expense.

Although it appears based on discussion at the hearing on attorney fees that such fees were assessed pursuant to OCGA § 9-15-14,

when a trial court exercises its discretion in assessing attorney fees and costs of litigation under OCGA § 9-15-14, it is incumbent upon the court to specify the conduct upon which the award is made. Indeed, a judgment devoid of such findings must be vacated and the case must be remanded for reconsideration. Furthermore, an order awarding attorney fees pursuant to this statute must specifically state whether the award is made under OCGA § 9-15-14 (a) or (b).

(Punctuation and footnotes omitted.) Woods v. Hall, 315 Ga. App. 93, 97 (2) (726 SE2d 596) (2012); see also Bailey v. McNealy, 277 Ga. App. 848, 849 (1) (627 SE2d 893) (2006) (a trial court is required to “make express findings of fact and conclusions of law as to the statutory basis” for an award of attorney fees under OCGA § 9-15-14) (citation omitted).

As noted above, the state court’s order awarding attorney fees failed to make express findings of fact or conclusions of law as to the statutory basis for its award of attorney fees to the Hairs. “More importantly, the court’s order fails to even specify whether the attorney fees were awarded under OCGA § 9-15-14 at all, much less which subsection of the statute supports the award.” Woods, supra, 315 Ga. App. at 97-98 (2). Accordingly, we must vacate the award and remand the case to the state court for “reconsideration of the grant of attorney fees and to make express findings of fact and conclusions of law as to the statutory basis for any such award and the conduct which would authorize it.” (Punctuation and footnote omitted.) Id. at 98 (2); see also In re Serpentfoot, supra, 285 Ga. App. at 328-329 (4) (a) (vacated award and remanding for further proceedings where trial court’s findings that appellant was stubbornly and unreasonably litigious andfrivolous didnot satisfy requirements of OCGA § 9-15-14).

Decided August 20, 2013

Reconsideration denied September 25, 2013.

Vincent R. Lauria, for appellant.

Kilpatrick Stockton, Matthew H. Patton, for appellees.

2. Given our holding, we need not address Kinsala’s remaining enumerations of error.

Judgment reversed and case remanded.

Barnes, P. J., and Ray, J., concur.

       Litigation expenses may be available to a defendant who prevails on an independent counterclaim against the plaintiff. Dennis-Smith v. Freeman, 277 Ga. App. 822, 824 (3) (627 SE2d 872) (2006). However, a defendant’s expenses of defending against a claim are not recoverable, and a defendant is barred from “transforming a plaintiff’s case into that defendant’s damage suit for having been sued.” (Citations and punctuation omitted.) Canton Plaza, Inc. v. Regions Bank, Inc., 315 Ga. App. 303, 310 (3) (732 SE2d 449) (2012). In this case, the Hairs did not assert an independent counterclaim, as their counterclaim was for litigation expenses for having been sued in bad faith. Since success on the Hairs’ counterclaim would amount to a recovery of damages for merely having been sued by Kinsala, the Hairs were precluded from recovering attorney fees under OCGA § 13-6-11. Id.


text:
    A13A0841.
    SANDERS v. THE STATE.
    (749 SE2d 14)
   Miller, Judge.

Convicted by a jury of armed robbery (OCGA § 16-8-41 (a)) and possession of a knife during the commission of a felony (OCGA § 16-11-106 (b) (1)), James Edward Sanders appeals from the denial of his motion for new trial, contending that the evidence was insufficient to sustain his convictions. For the reasons that follow, we affirm.

On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies. As an appellate court, we do not weigh the evidence, judge the credibility of witnesses, or resolve conflicts in trial testimony when the sufficiency of the evidence is challenged. Instead, we determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. As long as there is some evidence, even though contradicted, to support each necessary element of the State’s case, the jury’s verdict will be upheld.

(Citation and punctuation omitted.) Bryson v. State, 316 Ga.App. 512 (729 SE2d 631) (2012).

So viewed, the evidence shows that on February 24, 2010, the victim received a text message from Sanders that he had some Oxycontin pills to sell the victim. The victim called Sanders, and they made arrangements to meet at an apartment complex in Duluth where Sanders resided. The victim later went to the designated area and waited in his vehicle for Sanders to arrive. When Sanders appeared, he hopped into the passenger seat of the victim’s vehicle. Sanders and the victim briefly chatted before Sanders pulled out a knife with a blade three to five inches in length. Sanders demanded the victim’s money and ordered the victim to clear out his pockets. Sanders took $ 180 in cash, cell phones, and a GPS unit. Before getting out of the victim’s van, Sanders threatened to find and hurt the victim if he reported the incident to the police. Sanders fled and was seen running to an area where apartment number 2612 was located. The victim then called the police, stating that he had been robbed while pulling into the apartment complex to make a phone call.

Responding police officers talked to the victim and to residents of the apartment complex. Based on the information provided, the officers went to apartment number 2612 and found Sanders. The victim subsequently identified Sanders as the assailant. Upon further questioning, the victim admitted that he was actually at the apartment complex to buy narcotics from Sanders.

The police officers obtained a warrant to search Sanders’s apartment, and while executing the search warrant, officers found the GPS unit and cell phones that were taken from the victim. Officers also found a butterfly knife and approximately $1,832 in cash. Sanders was arrested, charged, and convicted of armed robbery and possession of a knife during the commission of a felony.

On appeal, Sanders contends that the evidence was insufficient to sustain his convictions because the victim was not credible, Sanders testified that the victim willingly gave him property in exchange for narcotics, and the knife recovered from his apartment did not match the victim’s description of the knife used in the offense. We disagree.

A person commits the offense of armed robbery when, with intent to commit theft, he ... takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.

OCGA § 16-8-41 (a). A person commits the offense of possession of a knife during the commission of a felony when he has on or within arm’s reach of his person a knife having a blade three inches or longer during an armed robbery. See OCGA § 16-11-106 (b) (1). Where a robbery is committed by the use of a knife, separate convictions for armed robbery and possession of a knife are specifically authorized. See OCGA § 16-11-106 (e); see also Howze v. State, 201 Ga. App. 96, 97 (410 SE2d 323) (1991) (noting that separate convictions for armed robbery and the possession of a firearm during the commission of a felony are separate convictions under OCGA § 16-11-106 (e)).

Decided September 25, 2013.

Lucas O. Harsh, for appellant.

It is the role of the jury, as the finders of fact, to determine the credibility of witnesses. Whitaker v. State, 291 Ga. 139, 140 (1) (728 SE2d 209) (2012). In this case, the jury found the victim and his description of the events to be credible when it found Sanders guilty of the charged offenses. In his trial testimony, the victim identified Sanders as the person who used a knife with a blade three to five inches long in order to take his money and other property. The victim’s testimony alone was sufficient to support a finding that Sanders committed armed robbery and used a knife during the commission of a felony. See OCGA § 24-4-8 (2012) (“The testimony of a single witness is generally sufficient to establish a fact.”); see also Harrelson v. State, 312 Ga. App. 710, 715-716 (1) (b), (d) (719 SE2d 569) (2011) (victim’s testimony was sufficient to sustain convictions for armed robbery and possession of a knife during the commission of a crime). Although Sanders offered testimony that conflicted with the State’s version of events,

[i]t is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient.

(Citation and punctuation omitted.) Whitaker, supra, 291 Ga. at 140 (1). Likewise, it was the function of the jury, and not this Court, to resolve conflicts in the evidence regarding the victim’s description of the knife and the type of knife recovered from Sanders’s apartment. Id. “So long as there is some competent evidence, even though contradicted, to support each element of the crime, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Jones v. State, 293 Ga. App. 218, 219 (666 SE2d 738) (2008). Since competent evidence showed that Sanders used a knife during the commission of an armed robbery, his convictions are affirmed.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

Daniel J. Porter, District Attorney, Richard A. Vandever, Assistant District Attorney, for appellee.

       This provision has been retained but renumbered as OCGA § 24-14-8 in Georgia’s new Evidence Code.


author: Ray, Judge.

text:
    A13A1186.
    CRAFT v. THE STATE.
    (749 SE2d 16)
   Ray, Judge.

A Turner County jury convicted Jerry Andrew Craft of three counts of child molestation (OCGA § 16-6-4) and one count of enticing a child for indecent purposes (OCGA § 16-6-5). Craft appeals from the denial of his motion for a new trial challenging the sufficiency of the evidence. Counts 1-3 of the indictment charged Craft with child molestation “by asking the child if she had pubic hair and attempting to touch her vaginal area with his hand,” “by asking the child if she wanted to touch his penis,” and “by attempting to kiss the child on the lips,” respectively. Count 4 charged Craft with enticing a child for indecent purposes by taking the child to “the residence located at 4643 Stanford Road, Ashburn, GAfor the purpose of committing acts of child molestation____” On appeal, Craft challenges the sufficiency of the evidence as to Counts 1-3, arguing that neither asking an inexplicit question of a child nor an unsuccessful attempted act of child molestation can constitute an act of child molestation. As to Count 4, Craft claims that the State’s evidence was insufficient for there was no evidence showing that he transported the child to his residence for anything other than a proper purpose. We disagree and affirm.

Viewed in the light most favorable to the jury’s verdict, the child, then under the age of 12, testified at trial that Craft, her grandfather, took her to his house to “try on some pants from [her] grandma’s closet” because she had spilled some chocolate milk on her pants as the two were en route to a carnival. The child further testified that while at the house, Craft asked her if she had any pubic hair while he tried to touch her vaginal area, asked if she wanted to look at his penis and touch it as he unzipped his pants and exposed it, and then tried to kiss her on her lips. The child’s testimony was consistent with what she reported to the other State’s witnesses, a social services case manager, a forensic interviewer with the child advocacy center, and her mother.

When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

(a) Child Molestation. OCGA § 16-6-4 (a) (1) provides that “[a] person commits the offense of child molestation when [he] . .. [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of... the person.” As to Count 1, the child testified that Craft asked her if she had pubic hair while also attempting to touch her vagina. As to Count 2, the child testified that Craft asked her if she wanted to touch his penis as he unzipped his pants and exposed himself. And as to Count 3, the child testified that Craft attempted to kiss her on the lips after he exposed himself and attempted to have her touch his penis.

Immoral or indecent acts constituting child molestation refer to acts generally viewed as morally indelicate or improper or offensive and acts which offend against the public’s sense of propriety.... [T]he Georgia law against child molestation affords protection to a child’s body in those cases where the act or acts are more suggestive of sexually oriented misconduct than simply assaultive in nature.

(Citations and punctuation omitted.) Wormley v. State, 255 Ga. App. 347, 348 (565 SE2d 530) (2002). “Sexual contact between a victim and perpetrator can be merely verbal.” (Citations omitted.) Carolina v. State, 276 Ga. App. 298, 302 (3) (623 SE2d 151) (2005).

The testimony in this case supports the conclusion beyond a reasonable doubt that Craft’s actions in the presence of the child in combination with his questions, were “immoral or indecent” within the meaning of OCGA § 16-6-4 (a) (1). The fact that he acted with the intent to arouse his sexual desires is equally supported by the evidence beyond a reasonable doubt. See, e.g., Arnold v. State, 249 Ga. App. 156, 158 (545 SE2d 312) (2001) (“Intent, which is a mental attitude, is commonly detectable only inferentially, and the law accommodates this”) (footnote omitted).

(b) Enticing a Child for Indecent Purposes. Craft contends that insufficient evidence supports his conviction for taking the child to his home for indecent purposes. He argues that the State presented no evidence at trial showing that he took the child to his home for any purpose other than a change of clothes.

“A person commits the offense of enticing a child for indecent purposes when he... takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” OCGA § 16-6-5 (a). Thus, the crime of enticing a child for indecent purposes in violation of OCGA § 16-6-5 requires a showing of the act of taking a child and the intention to commit acts of indecency or child molestation. That Craft took the child to his home is here not in issue. As noted above in Division (a) of this opinion, there was evidence showing beyond a reasonable doubt that Craft intended to commit acts of child molestation. “[WJhether [the defendant’s] intentions were innocent as he asserted ... or to arouse his own sexual desires as found by the jury, was peculiarly a question of fact for determination by the jury.” Arnold, supra. See also Dennis v. State, 158 Ga. App. 142, 142 (2) (279 SE2d 275) (1981) (evidence that defendant took child in his motor vehicle for purpose of indecent acts was sufficient to support conviction of enticing a child for indecent purposes, even where there was no evidence of enticing, inviting, or persuading victim to go with him).

Decided September 25, 2013.

Larry M. Johnson, for appellant.

Given the foregoing, the trial court did not err in denying Craft’s motion for a new trial for lack of sufficient evidence to support his convictions.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.


text:
    A13A1223.
    TALTON v. THE STATE.
    (749 SE2d 18)
   Ray, Judge.

Bryan Taitón was charged in a 13-count criminal indictment, and after a bench trial, he was convicted of two counts of statutory rape (OCGA § 16-6-3), four counts of child molestation (OCGA § 16-6-4 (a)), and three counts of aggravated child molestation (OCGA § 16-6-4 (c)). He appeals from his conviction and sentence, and from the denial of his motions for new trial, alleging that he did not knowingly, voluntarily, and intelligently waive his right to a jury trial, and that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that Taiton committed the above-named offenses against three girls. The evidence shows, inter alia, that Taiton touched A. B.’s private parts with his penis, fingers and mouth; penetrated her vagina such that she bled; and forced her to perform oral sex on him. These crimes occurred when A. B. was in kindergarten until she was in seventh grade, while he was living in her home and in a relationship with her mother. He threatened to hurt or kill her if she told anyone. The evidence also shows that when A. B.’s first cousin, J. W., was nine years old, Taitón, inter alia, touched J. W.’s private parts with his penis or hand. He threatened to hurt her if she told anyone. Additionally, the evidence shows, inter alia, that when A. B.’s half-sister, whose initials also are A. B., was 11 or 12 years old, Taitón put his mouth on her private parts and penetrated her vagina with his penis. Taitón does not challenge the sufficiency of the evidence.

Taitón went to trial on January 27, 2009. At that time, Talton’s attorney told the court that, against his advice, Taitón wanted a bench trial. Taitón told the court that he understood he had an absolute right to a jury trial, and knew that if he waived that right, the trial court would hear and rule on the evidence presented. After opening statements and before any witnesses were sworn, however, the State said that it would not consent to a bench trial and insisted on a jury trial. Taitón indicated, through his lawyer, that he still wanted a bench trial, but the trial court continued the case.

The bench trial resumed on March 9,2009, wherein Talton’s trial counsel again stated that he had advised his client to have a jury trial, but that Taitón insisted on a bench trial. Taitón confirmed this to the trial court. Taitón stated that he had discussed his decision with his trial counsel, that he understood that the trial judge would listen to witnesses and to his own testimony, and that the trial judge would decide his guilt or innocence, as well as his sentence. The State then told the court that it would not object to Taitón waiving his right to a jury trial because he had been fully informed of all his rights. The bench trial proceeded.

1. Now, after his conviction, Taitón argues that he did not knowingly, voluntarily, and intelligently waive his right to a jury trial. He argues that there is no evidence establishing that he knew the difference between a jury trial and a bench trial. He argues that he did not understand that there would be a process of jury selection, that the State did not present any extrinsic evidence at the motion for new trial hearing, and that the State has not otherwise met its burden of proving a knowing, voluntary, and intelligent waiver.

A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. When the purported waiver of this right is questioned, the State bears the burden of showing that the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.

(Citation omitted.) Whitaker v. State, 256 Ga. App. 436, 439 (2) (568 SE2d 594) (2002). Further, “[t]he question of whether a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted by this [C]ourt unless such determination is clearly erroneous.” (Citation and punctuation omitted.) Id. “In Georgia, it is well-settled that the ‘clearly erroneous’ standard for reviewing findings of fact is equivalent to the highly deferential ‘any evidence’ test.” (Citations omitted.) Reed v. State, 291 Ga. 10, 13 (3) (727 SE2d 112) (2012).

Here, despite Talton’s argument that the State presented no extrinsic evidence of the voluntariness of his plea, the record is by no means silent. Whitaker, supra. Prior to opening statements, Taitón, in response to questions from the trial court, stated that he understood he had an absolute right to a jury trial and that if he waived that right, the trial court would hear and rule on the evidence presented. He also testified that his waiver was voluntary, that he had not been pressured, and that his lawyer advised him against a bench trial. Then, at the later date on which the bench trial actually took place, Taitón stated in response to the court’s questions that he wanted to proceed without a jury, that he was not threatened or coerced into that decision, that he was not taking any medications and had not been prescribed medication that he failed to take, that he was not under a doctor’s or mental health professional’s care, and that he was not under the influence of alcohol. He stated that the private attorney he hired had advised him to proceed to a jury trial, but that he did not wish to, although he understood he had an absolute right to a jury trial. He explained his decision was due to his fear of “the reactions of a jury, the mind-set, the possibilities of them being put in that exact role and/or knowing someone in that role as well as, you know, in essence of the allegations themselves, I myself would personally prefer a bench trial.” When the trial court asked, regarding his decision to proceed with a bench trial, “This is the same choice that you made six weeks or two months ago when we started this? ... You haven’t wavered on this issue? You have not changed your mind?” Taitón responded, “No, Ma’am, your honor.” He also stated that he had talked about the bench trial versus jury trial with his trial counsel, and that he understood that the trial judge would listen to witnesses and to Talton’s own testimony, and would decide his guilt or innocence, and his sentence.

We have determined that “[a] defendant’s consent need not be in a particular, ritualistic form. Since form is unimportant, the only real issue is whether appellant intelligently agreed to a trial without [a] jury.” (Citation and punctuation omitted.) Brown v. State, 277 Ga. 573, 574 (2) (592 SE2d 666) (2004). In instances where the information given to, and elicited from, a defendant was similar to that in the instant case, i.e., the testimony showed that the defendant had discussed a bench trial with counsel, had not been threatened or coerced to waive his right to a jury trial, was not under the influence of drugs or alcohol, and was voluntarily choosing a bench trial, the defendant’s waiver of his rights was valid. Turnbull v. State, 317 Ga. App. 719, 726-727 (2) (c) (732 SE2d 786) (2012) (defendant’s waiver was knowing and voluntary, and counsel was not ineffective, where trial court received oral assurances from defendant that he wanted a bench trial, had discussed this with counsel, had not been threatened or coerced, was not under the influence of drugs, and was making a voluntary decision). Accord Watson v. State, 274 Ga. 689, 690-691 (2) (558 SE2d 704) (2002) (waiver of rights upheld where defendant told trial court on the record that he wished to waive jury trial and proceed with bench trial, and where defendant’s counsel stated that he had discussed with defendant whether to proceed with bench trial versus jury trial).

Taitón, citing Ealey v. State, 310 Ga. App. 893 (714 SE2d 424) (2011), also argues that his decision was not voluntary because the trial court “heavily advocated in favor of proceeding without a jury,” thus influencing his choice. At the initial trial date, when the State objected to proceeding with a bench trial after Taitón requested such, the trial court, after learning the victims’ ages, asked the prosecutor if he wanted to “spare them a jury trial” and also said, after pointing out that a number of jurors would be disqualified because of personal experiences with molestation, that “it may be more efficient to proceed without a jury if Mr. Taitón is waiving his right to a jury. And not requiring the girls to testify in front of a jury is, I think, really in their best interest.” (Emphasis supplied.)

Ealey is distinguishable from the instant case. In Ealey, the defendant first stated that he wanted a bench trial, but after listening to the lawyers and the court discuss evidentiary stipulations, he changed his mind, telling the court that he had not understood his attorney before and that he wanted a jury trial. Id. at 894-895. The trial court told the defendant that if he chose a stipulated bench trial instead, the court would give him a fine and the minimum sentences for his crimes and grant him a supersedeas bond to allow him to leave jail pending appeal. Id. at 895-896. The court also reminded him that if he went before a jury, it would take up the court’s time and that the court could assign him any sentence — up to and including the maximum — and “stated that it needed an answer ‘in 30 seconds.’ ” Id. at 896. The trial court then asked Ealey if he had been coerced or promised any benefit to waive his right to a jury trial, to which Ealey responded, “No.” Id. at 897. We found that “the court participated in the decision-making process, invoking the force and majesty of the judiciary” and, thus, that Ealey’s waiver of a jury trial was not voluntary. (Punctuation and footnote omitted.) Id. at 898.

Here, the record shows that the trial court made its aforementioned statements about a bench trial’s efficiency and benefits to the victims after Taitón chose a bench trial, thereby undercutting Talton’s argument about improper use of the “force and maj esty of the judiciary.” Ealey, supra at 898. The trial court made no promises of reduced sentencing or any other benefit to Taitón, nor did it urge Taitón to choose a bench trial or tell him he risked an increased sentence if he chose a jury trial. Compare Pride v. Kemp, 289 Ga. 353, 354-355 (711 SE2d 653) (2011) (in case involving voluntariness of a guilty plea, habeas court’s denial of defendant’s petition was reversed where trial court threatened him with a longer sentence if he went to trial). See, e.g., Skomer v. State, 183 Ga. App. 308, 309-310 (358 SE2d 886) (1987) (court improperly participated in plea negotiations when it stated that it would consider giving defendants probation if they pled guilty). Further, in the instant case, unlike in Ealey, the trial court was addressing its comments to the prosecutor, not to Taitón. Here, the court’s statements did not amount to participation that rendered Talton’s decision involuntary. Further, prior to the trial court’s comments at issue here, Taitón unequivocally stated that he wanted a bench trial. See In the Interest of S. F., 312 Ga. App. 671, 674 (1) (719 SE2d 558) (2011) (juvenile court made no threats of longer term of confinement if defendant chose not to go to trial). “Although the burden is on the State to prove [that Taitón] personally, intelligently, and voluntarily waived his right to trial by jury, the record supports the trial court’s finding that [Taitón] consulted with his attorney and made an intelligent [, voluntary,] and knowing decision to waive this right.” (Citations and punctuation omitted.) Wingfield v. State, 226 Ga. App. 448, 449 (3) (486 SE2d 676) (1997).

2. Taitón contends that he received ineffective assistance of counsel. To show ineffective assistance of counsel, a defendant is required to establish, pursuant to Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), that

counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Both the performance and prejudice prongs of the ineffectiveness inquiry are mixed questions of law and fact. In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this [C]ourt upholds the trial court’s factual findings unless they are clearly erroneous; we review the trial court’s legal conclusions de novo. If an appellant fails to meet his or her burden of proving either prong of the Strickland test, it is not incumbent upon the reviewing court to examine the other prong.

(Punctuation and footnotes omitted.) Turnbull, supra at 724 (2).

(a) Taitón argues that his attorney failed to give him an adequate explanation of the consequences of waiving his right to a jury trial. For the reasons discussed in Division 1, supra, this argument cannot succeed. Turnbull, supra at 726-727 (2) (c) (counsel found effective where he confirmed that he talked with defendant about a bench trial versus jury trial and that the defendant knew the final decision was defendant’s to make; defendant told trial court that he wanted a bench trial, had discussed this with counsel, had not been threatened or coerced, was not under the influence of drugs, and was making a voluntary decision).

(b) Taitón argues that he would not have waived his right to a jury trial had counsel not been operating under a conflict of interest. Taitón testified at the motion for new trial hearing that because his lawyer charged higher fees for a jury trial and his relatives were paying for his lawyer, he chose a bench trial for financial reasons. He alleges that this created a conflict of interest.

Decided September 25, 2013.

Leslie R. Lowry, for appellant.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellee.

Taitón did not raise the conflict of interest argument below. “[I]t is well settled that issues neither raised nor ruled on in the trial court cannot be raised for the first time on appeal.” (Punctuation and footnote omitted.) Robertson v. State, 287 Ga. App. 271, 273 (4) (651 SE2d 198) (2007).

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.

       Taiton was acquitted of two counts of rape and received a directed verdict of acquittal as to an additional rape count (OCGA § 16-6-1) and a count of aggravated sexual battery (OCGA § 16-6-22.2).

       Talton’s argument that the trial court should have inquired further into whether he understood that there would be a process of jury selection is unavailing, given the court’s on-the-record statements, in his presence, that it is “because so many of the jurors have had their own personal experiences of being molested or having a family member molested that we spend a lot of time picking a jury” and “50 percent of the jurors will have been either molested themselves or have friends or family members that have been molested. And we wind up having to disqualify a number of them for that reason before we can even start.” (Emphasis supplied.)


text:
    A13A1328.
    BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. BROOKS et al.
    (749 SE2d 23)
   Miller, Judge.

James Brooks and 68 other individuals (collectively “the Plaintiffs”) brought the instant lawsuit seeking to recover damages they sustained when their former employer failed to compensate the Plaintiffs for work performed under a contract with Georgia Southern University (“GSU”). The Plaintiffs alleged that the Board of Regents of the University System of Georgia (“Board of Regents”) was negligent in failing to confirm the validity of a payment bond that was presented to GSU. The Board of Regents moved to dismiss the complaint, contending, among other things, that the claims were barred by sovereign immunity and the applicable statute of limitation and the Plaintiffs failed to state a claim upon which relief could be granted. The trial court denied the Board of Regents’ motion, and the Board of Regents appeals from that ruling. Since we find that sovereign immunity bars the instant action against the Board of Regents, we reverse.

“On appeal, this Court reviews the denial of a motion to dismiss de novo. However, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiff’s favor.” (Citation and punctuation omitted.) Ga. Dept. of Community Health v. Data Inquiry, LLC, 313 Ga. App. 683 (722 SE2d 403) (2012). “The party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver [.]” (Citation and punctuation omitted.) Bonner v. Peterson, 301 Ga. App. 443 (687 SE2d 676) (2009).

So viewed, the allegations show that in November 2009, LRL and GSU entered into a maintenance and service contract, which included the cleaning of rooms and the refinishing of floors at GSU’s facilities (“GSU contract”). To obtain the GSU contract, LRL submitted to GSU a payment bond purported to have been issued by The Hartford Fire Insurance Company (“Hartford”). Soon after execution of the contract, the Plaintiffs, who were all hourly-wage employees of LRL, began working pursuant to the GSU contract. LRL, however, failed to pay wages owed to the Plaintiffs for work performed between November 2009 and June 2010. In July 2010, the Plaintiffs submitted a claim on the payment bond, but were informed by Hartford that the bond was a forgery. The Plaintiffs then filed the instant suit against the Board of Regents, alleging that the Board of Regents “owed a duty to Plaintiffs to obtain, confirm and [e]nsure the existence of a valid payment bond under OCGA §§ 13-10-62, 13-10-63” and that its failure to do so constituted negligence and negligence per se.

The Board of Regents denied liability and moved to dismiss the suit on the grounds the suit was barred by sovereign immunity and the applicable statute of limitation, the Plaintiffs failed to comply with ante litem notice requirements under OCGA § 50-21-26 (a) of the Georgia Tort Claims Act (“GTCA”), and OCGA §§ 13-10-62 and 13-10-63 did not provide the Plaintiffs relief. The trial court denied the motion to dismiss, and the Board of Regents now appeals from the trial court’s order.

1. The Board of Regents argues that the Plaintiffs could not recover from the Board because of sovereign immunity. We agree.

The Georgia Constitution provides that sovereign immunity extends to the State and all of its departments and agencies, and that the State’s sovereign immunity can only be waived by a constitutional provision or an Act of the General Assembly that specifically provides for such waiver and the extent thereof. Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e).

(Citations, punctuation and footnote omitted.) Data Inquiry, supra, 313 Ga. App. at 685 (1). “The Board of Regents is the state agency vested with the governance, control, and management of the University System of Georgia,” and, therefore, is entitled to sovereign immunity from suit unless the legislature has waived its immunity. Bd. of Regents of Univ. System of Ga. v. Ruff, 315 Ga. App. 452, 456 (2) (726 SE2d 451) (2012).

The [legislature enacted the GTCA, OCGA § 50-21-20 et seq., in order to balance strict application of the doctrine of sovereign immunity against the need for limited exposure of the State treasury to tort liability. While recognizing the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity, the legislature also realized that in acting for the public good and in responding to public need, state government must provide a broad range of services and perform a broad range of functions throughout the entire state, regardless of how much exposure to liability may be involved. OCGA § 50-21-21 (a). With this in mind, the legislature concluded that the exposure of the state treasury to tort liability must therefore be limited, and that state government should not have the duty to do everything that might be done. Accordingly, the legislature declared it to be the public policy of this state that the state shall only be liable in tort actions within the limitations of the [GTCA].

(Citations, punctuation and footnote omitted.) Lewis v. Dept. of Human Resources, 255 Ga. App. 805, 807-808 (567 SE2d 65) (2002). Moreover, “[t]he doctrine of sovereign immunity requires that the conditions and limitations of the statute that waives immunity be strictly followed.” (Footnote omitted.) Ruff, supra, 315 Ga. App. at 456 (2).

The GTCA provides a general waiver of sovereign immunity for the torts of state employees while acting within the scope of their official duties or employment. OCGA § 50-21-23 (a); Lewis, supra, 255 Ga. App. at 808. “This necessarily means that the state is immune from liability if the tort is that of state officers or employees acting outside the scope of their official duties or employment, or if the tort was committed by a third party.” (Emphasis supplied.) Lewis, supra, 255 Ga. App. at 808.

Here, the Plaintiffs alleged that the Board of Regents was required to obtain a payment bond under OCGA §§ 13-10-62 and 13-10-63, and its failure to confirm the validity of the submitted payment bond constituted negligence. As noted by the Board of Regents, the Plaintiffs have failed to demonstrate that these provisions apply, because these provisions concern payment bonds that are required for “public works construction contracts.” See OCGA § 13-10-60 (“[P]ayment bonds shall be required for all state public works construction contracts with an estimated contract amount greater than $100,000.00[.]”). While the term “public works construction contracts” is not defined in Chapter 10 of Title 13, the term is defined in the statutory scheme governing local government public works construction, which also requires the payment bonds for public works projects. See OCGA § 36-91-90. For local government public works projects, the term “public works construction” means

the building, altering, repairing, improving, or demolishing of any public structure or building .... Such term does not include the routine operation, repair, or maintenance of existing structures, buildings, or real property[.j

OCGA § 36-91-2 (12).

In this case, the Plaintiffs did not submit the entire GSU contract into the record, and the complaint and portions of the GSU contract that are included in the record show only that the contract was for maintenance and other services, such as cleaning services. The Plaintiffs have only shown that the GSU contract covers routine services and maintenance and have not established that it was for public works construction. See OCGA § 36-91-2 (12). Therefore, the Plaintiffs cannot show that the provisions for payment bonds set forth in OCGA §§ 13-10-60 — 13-10-65 applied.

More importantly, the Plaintiffs cannot establish the existence of a duty to confirm the validity of the payment bond under the circumstances of this case. Indeed, when the Board of Regents takes a bond that is in proper form, it is “not required to make any further inquiry or investigation into the propriety of the information presented on the face of the [payment] bond[.]” (Citation and punctuation omitted.) Hall County School Dist. v. C. Robert Beals & Assoc., Inc., 231 Ga. App. 492, 495-496 (1) (498 SE2d 72) (1998) (analyzing county school board’s liability under former OCGA § 13-10-1 when unpaid subcontractors sued school board for failing to verify payment bonds that, on their face, purported to be submitted by surety on behalf of general contractor).

Decided September 25, 2013.

To the extent GSU asked LRL to submit a payment bond as a condition precedent to securing a contract, it was LRL’s responsibility, not the Board of Regents’, to comply with this condition. The Plaintiffs’ injuries — their unpaid wages — resulted from LRL’s actions. The State action taken in this case — the requirement of the payment bond — itself produced no loss to the Plaintiffs. “Consideration of the requirement that the act must be that of the [Sjtate and not of a third party in order for the [Sjtate to be held liable leads naturally to the conclusion that the [Sjtate cannot be held liable in this case.” (Punctuation omitted.) Lewis, supra, 255 Ga. App. at 808 (State was immune from suit by plaintiff who was placed in scalding bath at private residential care facility); see also Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 71-72 (1) (456 SE2d 642) (1995) (State agency was immune from suit where the placement of the plaintiff in a private home, itself, caused no harm, and independent third party’s actions caused plaintiff’s injuries).

While we certainly empathize with the Plaintiffs’ unfortunate situation,

sovereign immunity is a harsh doctrine, not an equitable one. Indeed, it is just the opposite of equity____Nevertheless, it is a constitutionally recognized doctrine, and the constitution expressly provides that immunity for tort claims can be waived only by a legislative act specifically providing for such waiver and setting forth the extent thereof.

(Punctuation and footnote omitted.) Pak v. Ga. Dept. of Behavioral Health & Developmental Disabilities, 317 Ga. App. 486, 489 (731 SE2d 384) (2012). Since the Plaintiffs have shown no such waiver, the trial court erred in denying the Board of Regents’ motion to dismiss. We note, however, that the Plaintiffs are not without a remedy, because they still have pending claims against LRL, the entity responsible for their losses.

2. In light of our holding in Division 1 that the Board of Regents is immune from suit, we need not address its other arguments on appeal.

Judgment reversed.

Barnes, P. J., and Ray, J., concur.

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Claude M. Sitton, Assistant Attorney General, for appellant.

S. Wesley Woolf, for appellees.

       The Plaintiffs also sued their former employer, LaSonja R. Linder-Bently d/b/a LRL Ventures and Management (“LRL”), and the claims against LRL are not at issue on appeal.

       A motion to dismiss on sovereign immunity grounds is based upon the trial court’s lack of subject matter jurisdiction, and as a result, a trial court is entitled to make factual findings necessary to resolve the jurisdictional issue. See OCGA § 9-11-12 (b) (1); Dept. of Transp. v. Dupree, 256 Ga. App. 668, 676 (1) (c) (570 SE2d 1) (2002). When the trial court determines the jurisdictional issue based upon conflicting facts, the court’s determination is reviewed on appeal under the any evidence rule. Bonner v. Peterson, 301 Ga. App. 443 (687 SE2d 676) (2009). In this case, however, the trial court did not make any factual findings, and therefore we accept the Plaintiffs’ allegations as true for purposes of this appeal.


text:
    A13A1629.
    THOMPSON v. THE STATE.
    (749 SE2d 27)
   Miller, Judge.

Following a jury trial in which he appeared pro se, Jeremy Thompson was convicted of burglary (OCGA § 16-7-1 (a) (2010)). The trial court entered an order allowing an out-of-time appeal, and Thompson now appeals, arguing that there was a fatal variance between the indictment and proof at trial. We discern no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict.” (Footnote omitted.) Smarr v. State, 317 Ga. App. 584 (732 SE2d 110) (2012). So viewed, the evidence at trial showed that Thompson and the victim were previously in a relationship and had a son together. On July 1, 2010, Thompson’s girlfriend drove him to the victim’s Atlanta apartment. Thompson told his girlfriend that he was going to the apartment because a friend owed him money. Thompson knocked on the apartment door and yelled at the victim to open it. The victim refused to answer the door because she was scared and had told Thompson she did not want to see him anymore. Thompson proceeded to kick in the door and enter the apartment. Without saying anything, Thompson took the victim’s cell phone. The victim went out on her balcony and asked a lady standing by the pool below to call 911.

While the victim was on the balcony, Thompson went into the laundry room, grabbed a bottle of bleach, and poured it over the victim’s clothes, furniture and carpet. Thompson then unplugged the victim’s television from the wall and told her he was taking it because she refused to give him money. Thompson walked out of the apartment with the television and two cell phones belonging to the victim. The victim followed Thompson to the elevator and asked for her phone, and Thompson gave her one of the phones he had taken. The victim followed Thompson to the parking garage and watched him get into his girlfriend’s vehicle. The victim then called 911. Thompson told his girlfriend that he was keeping the television until his friend paid back the money. The victim testified that she never gave Thompson permission to take her television, and she denied that she owed him any money.

In his sole enumeration of error, Thompson contends that there was a fatal variance between the allegations in the burglary count of the indictment and the proof at trial because the indictment alleged that Thompson entered the victim’s apartment with intent to commit theft while the evidence at trial showed intent to commit criminal damage to the property in the second degree. We disagree.

As an initial matter, Thompson did not raise his fatal variance argument in the trial court and has therefore waived the issue for consideration on appeal. See Shindorf v. State, 303 Ga. App. 553, 555-556 (2) (694 SE2d 177) (2010); Jackson v. State, 252 Ga. App. 16, 16-17 (2) (555 SE2d 240) (2001).

In any event, Thompson’s argument is without merit. At the time of the offense, OCGA § 16-7-1 (a) (2010) provided, in relevant part: “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another[.]” The burglary count of the indictment alleged that Thompson “did unlawfully, without authority, enter into the dwelling house of [the victim] with the intent to commit a theft therein.” In support of that allegation, the State presented evidence that on the way to the victim’s apartment, Thompson told his girlfriend that he was going to the apartment because a friend owed him money. There was also evidence that Thompson, after kicking in the door to the victim’s apartment, took her television because she refused to give him money and left the premises with it. The victim testified that she did not give Thompson permission to take her television and did not owe Thompson any money.

Therefore, even if Thompson had preserved his enumeration of error, there was no variance, much less a fatal variance, between the allegations in the burglary count of the indictment and the proof at trial. See Oglesby v. State, 243 Ga. 690, 692 (3) (256 SE2d 371) (1979) (finding no variance between allegation that appellant entered victim’s dwelling house with intent to murder victim and State’s proof at trial because State introduced evidence sufficient to sustain a conviction of burglary as charged in indictment); Adcock v. State, 269 Ga. App. 9, 11 (1) (603 SE2d 340) (2004) (finding no variance between allegation that defendant entered premises unlawfully and proof at trial). Moreover, the State presented sufficient evidence that Thompson entered the victim’s apartment with the intent to commit a theft, and the jury was authorized to convict Thompson of the crime of burglary as charged in the indictment. See Meyers v. State, 281 Ga. App. 670, 670-671 (1) (637 SE2d 78) (2006) (jury authorized to find appellant guilty of burglary when there was evidence that appellant entered friend’s home and took television, VCR, cable box, and other items without permission although appellant claimed, among other things, that he took certain items in satisfaction of debt). Accordingly, we affirm.

Decided September 25, 2013.

Kenneth D. Kondritzer, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Joshua D. Morrison, Assistant District Attorneys, for appellee.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       Thompson was acquitted of charges of criminal damage to property in the second degree, simple battery, and cruelty to children in the third degree.

       While the State presented evidence at trial that Thompson poured bleach on the victim’s clothes, furniture, and carpet, it did so in an attempt to prove a separate count of the indictment charging Thompson with criminal damage to property in the second degree.


text:
    A11A0803.
    STRATACOS v. THE STATE.
    (749 SE2d 236)
    Decided September 26, 2013.

      Nathanael A. Horsley, for appellant.

      Kenneth W. Mauldin, District Attorney, James V. Chafin, Assistant District Attorney, for appellee.
   BARNES, Presiding Judge.

In Stratacos v. State, 293 Ga. 401 (748 SE2d 828) (2013), the Supreme Court of Georgia affirmed in part and reversed in part the judgment of this court in Stratacos v. State, 312 Ga. App. 783 (720 SE2d 256) (2011). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment affirmed in part and reversed in part.

Ray and McMillian, JJ., concur.


author: MCFADDEN, Judge.

text:
    A13A0861.
    SHERMAN v. DEVELOPMENT AUTHORITY OF FULTON COUNTY et al.
    (749 SE2d 29)
   MCFADDEN, Judge.

This appeal arises from a bond validation proceeding in which the State of Georgia petitioned the Fulton County Superior Court for a judgment approving the issuance of certain taxable revenue bonds by the Development Authority of Fulton County (“DAFC”) and validating the bonds and various bond security documents. See OCGA § 36-62-1 et seq. John S. Sherman appeals from the order of the trial court validating and confirming the bonds and bond security. Because Sherman lacks standing, we dismiss the appeal.

Thirteen days after the state filed the petition, Sherman filed a document entitled “Notice of Becoming Party to Bond Validation Petition Proceeding,” in which he gave notice that he thereby became a party to the proceedings for purposes of stating his objections to the bond validation. DAFC moved to strike Sherman’s notice on the ground that Sherman was required to follow the intervention procedures of OCGA § 9-11-24 (c) in order to become a party.

The trial court denied the motion to strike, finding that under the authority of Hay v. Dev. Auth. of Walton County, 239 Ga. App. 803 (521 SE2d 912) (1999), Sherman’s notice was sufficient to authorize him to participate as a party. Eventually, the trial court entered an order validating and confirming the bonds, and Sherman filed this appeal.

Before we can reach the merits of the appeal, we must consider whether Sherman has standing to appeal. See St. John’s Melkite Catholic Church v. Commr. of Revenue, 240 Ga. 733, 734 (242 SE2d 108) (1978) (standing considered sua sponte on appeal); In the Interest of W. L. H, 314 Ga. App. 185, 186 (723 SE2d 478) (2012) (same). “The constitutional and procedural concept of ‘standing’ falls under the broad rubric of ‘jurisdiction’ in the general sense, and ... a plaintiff with standing is a prerequisite for the existence of subject matter jurisdiction.” Blackmon v. Tenet Healthsystem Spalding, 284 Ga. 369, 371 (667 SE2d 348) (2008) (citations omitted). “[Sjtandingis in essence the question of whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues, and litigants must establish their standing to raise issues before they are entitled to have a court adjudicate those issues.” Sherman v. City of Atlanta, 293 Ga. 169, 172 (2) (744 SE2d 689) (2013) (citations, punctuation and emphasis omitted).

After this appeal was docketed, we decided Sherman v. Dev. Auth. of Fulton County, 321 Ga. App. 550 (739 SE2d 457) (2013) (whole court). Overruling the contrary holding in Hay, 239 Ga. App. at 804-805, we held that a person must follow the intervention procedures of OCGA § 9-11-24 in order to become a party to a bond validation proceeding. Sherman, 321 Ga. App. at 554-555 (1). Under OCGA § 9-11-24 (c),

[a] person desiring to intervene shall serve a motion to intervene upon the parties as provided in Code Section 9-11-5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute gives a right to intervene.

The question, then, is whether the holding in Sherman, 321 Ga. App. at 554-555 (1) applies retroactively to this case. We conclude that it does. The general rule is that judicial decisions apply retroactively, unless the decision itself expresses that it should be given prospective effect or the equities favor prospective application under the three-pronged test set forth in Chevron Oil v. Huson, 404 U. S. 97 (92 SCt 349, 30 LE2d 296) (1971). Findley v. Findley, 280 Ga. 454, 459-460 (1) (629 SE2d 222) (2006). Compare Atlanta Oculoplastic Surgery v. Nestlehutt, 286 Ga. 731, 744 (691 SE2d 218) (2010) (“When this [c]ourt applies a rule of state law to the parties before it... then that rule is the controlling interpretation of state law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.”) (Nahmias, J., concurring specially) (citation and punctuation omitted). The criteria of Chevron Oil require a court to:

(1) Consider whether the decision to be applied nonretroactively established a new principle of law, either by overruling past precedent on which litigants relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. (2) Balance . . . the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation would further or retard its operation. (3) Weigh the inequity imposed by retroactive application, for, if a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the injustice or hardship by a holding of nonretroactivity.

Findley, 280 Ga. at 457 (1), n. 1.

Applying these principles to the case at hand, we conclude that Sherman, 321 Ga. App. at 554-555 (1), should be given retroactive application because we did not state that our decision should be applied only prospectively and the equities favor retroactive application under the three prongs of Chevron Oil Co., 404 U. S. at 106-107 (II).

As for the first prong, while Sherman, 321 Ga. App. at 554-555 (1), did overrule precedent, that does not end the inquiry. Griffin v. Bankston, 302 Ga. App. 647, 650 (1) (a) (691 SE2d 229) (2009). “Indeed, the general rule is that a decision overruling prior precedent is applied retrospectively.” Id. Our decision was foreshadowed by the trial court’s ruling in that case — involving the same parties as are involved in this case — that because Sherman did not follow the intervention procedure set forth in OCGA § 9-11-24, he was not a proper party to the proceedings. Sherman, 321 Ga. App. at 554-555 (1). At a minimum, after the trial court made that ruling in December 2011, Sherman knew there was a question about the procedure required to become a party. “Therefore, the first prong of the test does not demand a prospective application of the new legal principle established in [Sherman, 321 Ga. App. at 554-555 (1)].” Griffin, 302 Ga. App. at 650 (1) (a).

As for the second and third prongs, we observe that our decision changed a procedural rule, not a substantive law, and changes to procedural rules generally operate retroactively. See Mason v. The Home Depot U.S.A., 283 Ga. 271, 278-279 (4) (658 SE2d 603) (2008); A. H. Friedman, Inc. v. Augusta Burglar Alarm Co., 186 Ga. App. 769, 771 (3) (368 SE2d 534) (1988). And, as noted, Sherman was on notice that there was conflict on this issue, and he could have avoided this result simply by filing a motion to intervene, which would have been granted as a matter of right. See OCGA § 36-82-77 (a). Retroactive application in this circumstance does not produce substantial inequitable results.

In sum, the first prong does not compel prospective application of the new [procedural] rule announced in [Sherman, 321 Ga.App. at 554-555 (1)], while the second and third prongs counsel in favor of retroactive application of the rule to all pending cases. Thus, the equities favor applying [our decision] retroactively to the present case under the three-pronged test of Chevron Oil Co., 404 U. S. at 106-107 (II).

Griffin, 302 Ga. App. at 651 (1) (a).

OCGA § 36-82-77 (a) gave Sherman the right to intervene so long as he was a citizen of the state and a resident of Fulton County. See Sherman, 293 Ga. at 173 (3). But he was required to follow the steps of OCGA § 9-11-24 (c). “Sherman could intervene in this bond validation proceeding — but he had to do so in the proper way, following the basic procedures . . . that are required to become a party.” Sherman, 293 Ga. at 175 (4) (citation omitted).

Decided September 26, 2013.

Hurt & Stolz, Irwin W. Stolz, Jr., Martenson, Hasbrouck & Simon, Robert D. Feagin, John F. Woodham, for appellant.

Paul L. Howard, Jr., District Attorney, Ichter Thomas, Cary Ichter, Schiff Hardin, Lewis C. Horne, Jr., Seyfarth Shaw, Charles W. Ingraham, for appellees.

“[B]ecause [Sherman] lacked standing to become [a party] in the trial court, [he] also lack[s] standing to appeal the trial court’s judgment.” Sherman, 293 Ga. at 169. For these reasons, Sherman’s appeal must be dismissed. Id. at 176 (5).

Appeal dismissed.

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


author: McFadden, Judge.

text:
    A13A0895.
    THOMAS v. THE STATE.
    (748 SE2d 509)
   McFadden, Judge.

Jerry Thomas appeals his child molestation conviction, arguing that the evidence is insufficient to support the conviction. We disagree and affirm.

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.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to 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 [s]tate’s case, the jury’s verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citations and punctuation omitted).

Viewed in this light, the evidence showed that Thomas is married to the victim’s grandmother. Thomas and the victim were never physically affectionate with each other. On the evening of April 28, 2010, when the victim was 11 years old, the victim’s mother dropped off her children at the grandmother’s house so the grandmother could watch them while the mother and father attended a counseling session at their church.

At one point, Thomas called the victim into a bedroom. He asked her for a hug. The victim put her arm around Thomas, gave him a hug and let go. Thomas hugged the victim tightly and did not let go. This was different from the one or two times he had hugged her before. He began kissing her. He first kissed her on the cheek and then moved toward her mouth, ultimately giving her a wet kiss on the lips. She felt his tongue. This upset the victim and made her uncomfortable. She pushed Thomas, ran from the room and started crying. Thomas followed her and told her not to tell her grandmother or mother because he would “get in a lot of trouble.”

The victim went outside and called her mother. While crying hysterically, the victim told her mother that Thomas had kissed her. The parents drove to the grandmother’s house. On the way, the mother called the police.

An officer who interviewed Thomas testified that Thomas admitted that he kissed the victim three times; that he may have kissed her on the corner of her lip but not on the mouth; that he told her that he “went too far”; and that he told her not to tell her grandmother or mother. A video recording of the interview was played for the jury. The officer also testified that he overheard Thomas praying, asking God to forgive him for his ‘lust problem” and for “taking advantage of that little girl.” Three months before the trial, Thomas wrote the court a letter, which was entered into evidence, admitting that he had kissed the victim on the lips but, tracking the language of the child molestation statute, denying doing so with the intent to arouse or satisfy his or the child’s sexual desires.

Under OCGA § 16-6-4 (a) (1), “[a] person commits the offense of child molestation when such person [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” (Punctuation omitted.) Thomas argues that his behavior did not constitute an indecent act.

Immoral or indecent acts constituting child molestation refer to acts which offend against the public’s sense of propriety as well as to acts more suggestive of sexually oriented misconduct to a child’s body than simply assaultive in nature. An act generally viewed as morally and sexually indelicate, improper and offensive can constitute child molestation.

Decided September 26, 2013.

Lawrence W. Daniel, for appellant.

David McDade, District Attorney, Emily K. Richardson, Jeffrey M. Gore, Assistant District Attorneys, for appellee.

Bowman v. State, 227 Ga. App. 598, 599 (1) (490 SE2d 163) (1997) (citations and punctuation omitted). Whether an act is immoral or indecent is a jury question. Cornelius v. State, 213 Ga. App. 766, 768 (1) (445 SE2d 800) (1994).

In Palmer v. State, 248 Ga. App. 515, 516-517 (2) (546 SE2d 886) (2001), we held that the trial court “appropriately instructed the jury that it could convict [the defendant] of child molestation if it found that he either inappropriately kissed or had sexual intercourse with the victim.” (Emphasis supplied.) In Cardenas v. State, 282 Ga. App. 473, 474-475 (1) (638 SE2d 866) (2006), we ruled that “[t]he evidence was sufficient to support the verdict of child molestation on [the victim] by [the defendant’s] placing his mouth on hers with the intent to satisfy his sexual desire” because under the facts of the case, the jury was authorized to conclude that “the kiss was an ‘immoral or indecent act.’ ”

Under this authority and given the evidence presented at trial, the jury “could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. at 319 (III) (B).

Judgment affirmed.

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


text:
    A13A1067.
    LEE v. THE STATE.
    (749 SE2d 32)
   MCFADDEN, Judge.

Seung Lee appeals from his conviction of driving under the influence of alcohol (DUI), challenging the trial court’s denial of his motion in limine to exclude the results of a state-administered breath test. Because Lee did not withdraw his implied consent to submit to such testing, the trial court did not err in denying the motion.

On June 17, 2011, a police sergeant saw Lee driving his motor vehicle on the wrong side of the road. The sergeant stopped the vehicle, approached Lee, smelled a strong odor of alcohol on his breath, and saw that his eyes were bloodshot and glazed. Another officer was called to the scene, and he too smelled the alcohol on Lee’s breath and noticed his bloodshot and glazed eyes. Lee told the officer that he had drunk one beer and agreed to perform field sobriety evaluations. After failing a horizontal gaze nystagmus evaluation, Lee refused to submit to a field alco-sensor evaluation and asked for a blood test. The officer arrested Lee for DUI, read to him the applicable implied consent notice and requested that he submit to a breath test. Lee, who speaks English as a second language, indicated that he did not understand the notice. The officer transported Lee to the jail, where he instructed Lee on how to provide a proper breath sample. Lee performed the breath test as instructed, the results of which showed a blood-alcohol concentration of 0.118 and 0.125 grams. The officer then asked Lee if he still wanted the blood test, and he replied that he did not want a blood test and would accept the results of the breath test.

Lee was charged by accusation with DUI and driving on the wrong side of the road. He filed a motion in limine to exclude the results of the breath test, which the trial court denied. Lee subsequently agreed to a stipulated bench trial, after which he was convicted of DUI to the extent he was a less safe driver and driving on the wrong side of the road. This appeal followed.

1. Implied consent.

The implied consent statute, OCGA § 40-5-55 (a), provides that any person who operates a motor vehicle in this state and is arrested for DUI is deemed to have given consent to chemical tests of his bodily substances to determine the presence of alcohol or drugs. That consent maybe withdrawn. OCGA § 40-5-67.1 (b) requires arresting officers to read the appropriate informed consent notice to the arrested person, informing him, among other things, that he has a right to independent tests after submitting to state testing and that his refusal to submit to state testing may be offered into evidence against him at trial. We have construed OCGA § 40-5-67.1 (b) to authorize arrested persons to withdraw their implied consent by refusing to submit to testing. State v. Stewart, 286 Ga. App. 542, 544 (1) (649 SE2d 525) (2007); Hernandez v. State, 238 Ga. App. 796, 798 (2) (520 SE2d 698) (1999).

Inability to consent, however, is not withdrawal of consent.

OCGA § 40-5-55 (b) provides that any person who is “dead, unconscious, or otherwise in a condition rendering such person incapable of refusal” to submit to testing shall be deemed not to have withdrawn his implied consent, thereby allowing the test or tests to be administered.

Hernandez, supra (emphasis supplied).

In this case, Lee contends that the trial court has misapplied OCGA § 40-5-55 (b). It is settled law that “a non-English-speaking driver is not ‘in a condition rendering such person incapable of refusal’ for the purposes of OCGA § 40-5-55 (b).” Furcal-Peguero v. State, 255 Ga. App. 729, 733, n. 7 (566 SE2d 320) (2002) (emphasis in original). Lee contends that the trial court disregarded that settled law and admitted the breath test results solely on the basis of an erroneous finding that, pursuant to OCGA § 40-5-55 (b), Lee’s inability to understand the implied consent notice due to a language barrier rendered him incapable of refusal to take the test. But there is nothing in the trial court’s order denying the motion in limine to indicate that the court based its ruling on such a misapplication of OCGA § 40-5-55 (b).

Rather, the order indicates that the court based its ruling on “applicable and controlling law.” While the order does not contain citations of legal authority, the trial court cited to the applicable and controlling law at the motions hearing. The trial court pointed out to the parties, and invited them to submit briefs on, a line of cases holding that the arresting officer is not required to ensure that the driver understands the implied consent notice. Those cases hold that

drivers are entitled only to be advised of their rights under the implied consent law, that is, to have the implied consent notice read to them. The law does not require the arresting officer to ensure that the driver understands the implied consent notice____Furcal-Peguero, supra... at 732-733. See also [State v.] Webb, [212 Ga. App. 872,] 873 [(443 SE2d 630) (1994)] (“In all cases the court is required to find only that the implied consent law was conveyed to the [suspect] driver. The State is under no duty to prove the [suspect] driver fully understood his rights under [that] law.”) . . . ; Rodriguez v. State, 275 Ga. 283, 285-286 (2) (565 SE2d 458) (2002) (no requirement that the implied consent notice be read in any language other than English, even where the driver speaks no English). The rationale underlying this rule is obvious: to hold otherwise, and allow an intoxicated driver’s professed inability to understand the implied consent warning to vitiate either the implied consent or the revocation of it, would so undermine OCGA § 40-5-55 (a) as to render it meaningless. Indeed, such a holding would actually benefit most those drivers who pose the greatest threat on the road — i.e., those who are so impaired that, even though conscious, are unable to comprehend their circumstances.

Stewart, supra at 545 (2) (punctuation and emphasis omitted). As the Supreme Court of Georgia has held, “[i]mplied consent warnings . .. are a matter of legislative grace, and due process does not require that the warnings be given in a language that the driver understands.” Rodriguez, supra at 287-288 (3) (citations omitted). Moreover, we note that in so holding, that line of cases has expressly affirmed that “a non-English speaking driver is not ‘in a condition rendering such person incapable of refusal’ for the purposes of OCGA § 40-5-55 (b).” Furcal-Peguero, supra at 733, n. 7.

Decided September 26, 2013.

McIlhinney & Sessions, Daniel B. Sessions, for appellant.

Rosanna M. Szabo, Solicitor-General, James M. Grant, Tad F. Keller, Assistant Solicitors-General, for appellee.

The trial court’s decision is sustainable under that controlling line of authority. Absent any showing to the contrary, we presume that the trial court based its ruling on the controlling authority and not on an erroneous legal theory. See generally Davis v. Bushnell, 245 Ga. App. 221, 223 (537 SE2d 477) (2000) (in the absence of a contrary showing, the trial court is presumed to have followed the law). Under that authority,

[t] he result [s] of the [s]tate-administeredtest[swere] admissible in this case because [Lee] consented to [the] tests by driving on Georgia’s roads, because the officer properly advised [him] of his implied consent rights, and because [Lee] did not withdraw his consent. [Cits.] The trial court [therefore] did not err in admitting the result [s] of the [s]tate-administered breath test.

Furcal-Peguero, supra at 733.

2. Equal protection claim.

Lee further argues that requiring a DUI suspect who speaks limited English to affirmatively withdraw his implied consent to the state-administered breath test violates his constitutional right to equal protection. “Because [Lee] failed to raise this or any other constitutional objection at trial, he has waived all such objections on appeal.” Breazeale v. State, 290 Ga. App. 632, 637 (10) (660 SE2d 376) (2008) (citation and punctuation omitted).

Judgment affirmed.

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