author: McFadden, Judge. ANDREWS, Judge,

text:
    A11A1366.
    BROOKS v. THE STATE.
    (717 SE2d 490)
   McFadden, Judge.

After a jury trial, Stanley Brooks was convicted of rape, aggravated sodomy, aggravated assault, kidnapping and four counts of possession of a firearm during the commission of a felony. He appeals, asserting that the trial court erred in refusing to sever his trial from that of his co-defendant, William Johnson. We agree and reverse. The record shows that Brooks was prejudiced by the denial of his motion to sever; the jury found him guilty of crimes for which only Johnson had been indicted.

Brooks and Johnson were jointly indicted for rape, aggravated sodomy, aggravated assault, kidnapping and four counts of possession of a firearm during the commission of a felony. In the same indictment, Johnson was also charged with numerous other offenses. Some of those additional charges related to an alleged carjacking that occurred two days before the incident that gave rise to the joint charges against Brooks and Johnson, while the rest of the charges against only Johnson related to an armed robbery that allegedly occurred after the joint incident. The trial court granted Johnson’s motion to sever the counts of the indictment based on the earlier carjacking incident. However, the trial court denied Brooks’ motion to sever his trial from Johnson’s trial, rejecting his claim that the jury would be misled and would likely punish him for Johnson’s criminal activity.

At trial, the jury heard evidence on the eight jointly-indicted counts, as well as on the charges brought against only Johnson for armed robbery, aggravated assault, two counts of possession of a firearm during the commission of a felony, and fleeing and attempting to elude police. During her closing argument, the prosecutor asserted that the evidence showed similarities between the incident involving both Brooks and Johnson and the subsequent armed robbery involving only Johnson, and she further stated to the jury that “after [the armed robbery victim] encountered these defendants there was the chase.” (Emphasis supplied.) Thereafter, counsel for Brooks noted that the state had improperly attempted in its closing argument to tie Brooks to the armed robbery, and the trial court responded: “They can’t find him guilty of something he’s not charged with.” However, the jurors did just that, returning a verdict in which they not only found Brooks guilty of the eight offenses for which he and Johnson were jointly indicted, but also found him guilty of the armed robbery, aggravated assault and two firearm counts for which only Johnson had been indicted. After announcing its verdict, the jury was polled and each juror reaffirmed that this was indeed their verdict. The trial court sentenced Brooks on the offenses for which he had been indicted, but did not sentence him on those for which he had not been indicted. Brooks’ motion for new trial was denied, and this appeal followed.

1. As an initial matter, we note that the issue of severance was not waived for purposes of appeal. A pre-trial hearing was held at which the parties thoroughly argued the merits of Brooks’ motion to sever, and the trial court then denied the motion. Accordingly, the trial court’s severance ruling was preserved for review. See Hill v. State, 274 Ga. 591, 593 (2) (555 SE2d 696) (2001). The case cited by the special concurrence, Hill v. State, 239 Ga. 278 (236 SE2d 626) (1977), is inapposite. The holding in that case is simply that a trial court has no duty to order severance sua sponte, and thus “the trial court did not err in not granting severance on its own motion.” Id. at 281 (3). That is not the issue in this case, which involves, not a claim that the trial court should have granted a severance on its own motion, but that the trial court erred in refusing to grant Brooks’ motion to sever.

“A trial judge has discretion to grant severance based on the particular facts of the case and should do so whenever it appears necessary to guarantee the defendant a fair trial.” (Citation omitted.) Ham v. State, 303 Ga. App. 232, 241 (5) (692 SE2d 828) (2010).

Factors to be considered by the trial court are: whether a joint trial will create confusion of evidence and law; whether there is a danger that evidence implicating one defendant will be considered against a co-defendant despite limiting instructions; and whether the defendants are asserting antagonistic defenses.

Rhodes v. State, 279 Ga. 587, 589 (3) (619 SE2d 659) (2005). “In considering whether a trial court abused its discretion in denying a severance, a defendant must do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.” (Citation and punctuation omitted.) Owen v. State, 266 Ga. 312, 314 (2) (467 SE2d 325) (1996).

Brooks has made such a clear showing of prejudice based on the fact that the jury found him guilty of crimes for which he was not even on trial. Indeed, it is hard to imagine a clearer showing of prejudice and consequent denial of due process than jurors unanimously finding a defendant guilty of offenses for which only his co-defendant had been indicted. The joint trial obviously created confusion of evidence and law for the jury, and evidence implicating Johnson was clearly considered against Brooks since he was found guilty of Johnson’s crimes. Compare Daniel v. State, 285 Ga. 406, 409 (3) (d) (677 SE2d 120) (2009) (that joint trial did not confuse jury regarding the evidence against each defendant shown by the fact that the jury found one defendant guilty while acquitting the other); Simmons v. State, 282 Ga. 183, 185-186 (4) (646 SE2d 55) (2007) (no evidence that jury was misled or confused where verdict itself included appellant’s acquittal for some of the charges, showing that jury fully understood law and evidence).

“[I]t is incumbent upon this court to determine whether the trial court’s decision to join the trial of the co-defendants in the instant case[ ] hindered a fair determination of the guilt or innocence of [Brooks], and thus constituted a manifest abuse of discretion.” Magouirk v. State, 158 Ga. App. 517, 518 (2) (281 SE2d 283) (1981). Because it is apparent that the joint trial hindered a fair determination of the guilt or innocence of Brooks, “and since appellant has demonstrated that he was prejudiced by joinder, we hold that the trial court abused its discretion in overruling [Brooks’] motion to sever.” Price v. State, 155 Ga. App. 206, 207 (1) (270 SE2d 203) (1980), reversed on other grounds, 247 Ga. 58 (273 SE2d 854) (1981). See also Burden v. State, 131 Ga. App. 522, 523 (206 SE2d 533) (1974) (trial court erred in denying motion to sever where count of indictment against co-defendant alone involved different crime and victim).

2. An additional error in this case arises from a defective verdict form. At the time it published its verdict, the jury confirmed that it had found Brooks guilty on counts with which he was not charged. At this point, and even though Brooks did not object, the trial court had a responsibility to intervene.

“[I]t is the duty of the trial court not only to tell the jury what the law is, but to insist that they apply it and either render a verdict on some issue submitted or else make a mistrial.” (Punctuation omitted.) State v. Freeman, 264 Ga. 276, 277 (444 SE2d 80) (1994), citing Register v. State, 10 Ga. App. 623 (74 SE 429) (1911) (Powell, J., dissenting). “[A] trial court has a duty to insist on a legal verdict, that is, a verdict responsive to the issues as framed by the indictment or accusation and the evidence, and specified in the trial court’s charge to the jury.” Id. at 277. When a jury returns an illegal verdict, “the trial court should return the jury for further deliberation with direction to return a verdict within the range of the instructions originally given to it.” Id. at 278. Because the trial court in this case did not so intervene before the dismissal of the jury, a new trial is authorized. Compare Prater v. State, 273 Ga. 477, 481-482 (545 SE2d 864) (2001) (reversal of conviction for felony murder based on armed robbery barred retrial on the lesser included offense of attempt to commit armed robbery).

Judgment reversed.

Phipps, P. J., concurs. Andrews, J., concurs specially.

ANDREWS, Judge,

concurring specially.

I believe that the trial court did not abuse its discretion at the time it was presented with the motion to sever, and Brooks failed to renew the motion, or to make any objection whatsoever, when the State’s closing argument linked him to crimes charged only against Johnson. I agree, however, that the trial court had a responsibility to intervene when the jury returned an illegal verdict. I therefore concur only as to Division 2 and the judgment.

This record shows that the trial court granted Brooks’s pre-trial motion to sever four counts against Johnson connected to the armed robbery and carjacking of one victim on November 11, 2004. The trial court denied the motion as to the counts against Johnson for armed robbery, aggravated assault and other charges as to a second victim on November 13, 2004, because the facts underlying these counts, including the co-defendants’ use of a four-door sedan, were part of the res gestae concerning their rape, aggravated sodomy, and aggravated assault of a third victim on the same day. Brooks’s only defense to the charges of rape and aggravated sodomy concerning the third victim was that she was a prostitute who had consented to sex with both men and that she was not a credible witness. Johnson did not take the stand in his own defense, but likewise argued that the sex was consensual and that the victim was not credible.

The record also shows that the jury was presented with a conventional verdict form as to Johnson, but that the form as to Brooks consisted of a redacted and renumbered version of the original indictments, including counts against Johnson alone, behind a cover page with Johnson’s name crossed out. When the jury presented its verdict against Brooks, including the counts against Johnson alone, Brooks raised no objection. The jury was then dismissed.

Decided October 4, 2011.

As the majority holds, we review a denial of severance only for an abuse of discretion. Owen v. State, 266 Ga. 312, 314 (2) (467 SE2d 325) (1996). Factors to be considered include “whether a joint trial will create confusion of evidence and law[,] whether there is a danger that evidence implicating one defendant will be considered against a co-defendant despite limiting instructions^] and whether the defendants are asserting antagonistic defenses.” Rhodes v. State, 279 Ga. 587, 589 (3) (619 SE2d 659) (2005).

At the time the trial court denied the motion to sever, it could not have known that the State would make an improper closing argument linking Brooks to Johnson’s crimes, and Brooks has not argued, let alone shown, that the trial court erred when it reasoned that the subject matter of the common counts was part of the res gestae as to crimes committed by both men. This case involved only two defendants, and Brooks has not argued or shown that evidence concerning the events of November 13 would have been admissible as to one of the men and inadmissible as to the other or that their defenses were antagonistic. I cannot agree, then, that the trial court abused its discretion at the time it denied the motion to sever. See Carson v. State, 208 Ga. App. 534, 535 (1) (431 SE2d 156) (1993) (affirming denial of motion to sever in case involving only two defendants when there was no danger of confusion of evidence and when their defenses were not antagonistic).

Brooks also raised no objection when the State’s closing argument linked him to offenses committed only by Johnson. “[A] defendant who, during trial, finds reasons for severance or supporting a motion for severance previously made and overruled, is under a duty to make or renew his motion for severance. He cannot sit silent and expect the trial judge to suggest severance to him.” (Emphasis supplied.) Hill v. State, 239 Ga. 278, 281 (3) (236 SE2d 626) (1977). Only at the end of a conversation after the jury had been excused, and in the midst of considering whether a police report should go out with them, did Brooks suggest in passing that the State’s argument had been improper.

For these reasons, I cannot join Division 1 of the majority opinion, but concur in Division 2 and in the judgment.

Dell Jackson, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Miller, Presiding Judge.

license: Public Domain

text:
    A11A1371.
    AILARA v. THE STATE.
    (717 SE2d 498)
   Miller, Presiding Judge.

Rasheed Ailara pled guilty to the offense of child molestation and was sentenced under the First Offender Act, OCGA § 42-8-60 et seq., to serve 11 years on probation. Upon conclusion of Ailara’s probationary period, Ailara filed a petition for discharge without court adjudication of guilt. Finding that Ailara had twice violated the terms of his probation, the trial court denied Ailara’s petition. On appeal, Ailara contends that the trial court erred by refusing to discharge him. As neither party disputes that Ailara was automatically discharged under the First Offender Act, we reverse the trial court’s order.

Ailara was indicted on three counts of child molestation (OCGA § 16-6-4 (a)) based upon a sexual encounter that occurred in December 1997, when Ailara was seventeen years old and the minor female victim was ten years old. At a hearing on January 11, 2000, Ailara entered a guilty plea to one count of child molestation, which was based upon Ailara exposing his penis to a minor child. The trial court sentenced Ailara under the First Offender Act to 11 years to be served on probation. The conditions of Ailara’s probation included his participation in specialized sex offender probation, completion of probation boot camp, and no contact with the minor female victim.

On August 16, 2005, the State filed a petition for adjudication of guilt and imposition of sentence, asserting that Ailara had violated the terms and conditions of his probation by “failfingj to not possess or subscribe to any sexually oriented or sexual[ ] material to include computer internet access nor patronize any place where such material or entertainment is available.” At a hearing on the State’s petition, the trial court reinstated Ailara’s probation, but imposed the additional condition of probation that Ailara “stay away from any kind of chat room, any kind of website that may even have children under the age of 18 communicating on it.”

Two years later, on August 16, 2007, the State filed another petition for adjudication of guilt and imposition of sentence, asserting that Ailara violated the terms and conditions of his probation by failing to not possess any pornographic material. At the subsequent hearing, Ailara stipulated to the violations contained in the State’s petition and agreed that his probation would be revoked for a period of 18 months, after which his probation would be reinstated under the First Offender Act. The parties also stipulated, and the trial court agreed, that Ailara’s 18-month probation revocation was not an adjudication of guilt.

When Ailara’s probation period came to an end, Ailara filed a petition for discharge under the First Offender Act. The trial court, however, denied Ailara’s petition on the ground that Ailara’s criminal record reflected “two probation violations, with one violation resulting in confinement for a period of 18 months.”

The First Offender Act provides:

Upon a . . . plea of guilty . . . , but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant:
(1) Defer further proceeding and place the defendant on probation as provided by law; or
(2) Sentence the defendant to a term of confinement as provided by law.

OCGA § 42-8-60 (a).

Upon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement, the defendant shall be discharged without court adjudication of guilt. . . and the defendant shall not be considered to have a criminal conviction.

OCGA § 42-8-62 (a).

During the term of Ailara’s first offender probation, he was accused of violating the terms of his probation on two separate occasions, with one such occasion resulting in the revocation of his probation for a period pf eighteen months. “Upon violation by the defendant of the terms of probation,... the court may enter an adjudication of guilt and proceed as otherwise provided by law.” OCGA § 42-8-60 (b). Nevertheless, “ [d epending on the severity of the crime committed and all the facts and circumstances of the case,” OCGA § 42-8-60 (b) gives the trial court “discretion to determine if it is appropriate to revoke first offender status, enter an adjudication of guilt, and resentence on the underlying offense.” Bliss v. State, 244 Ga. App. 160 (535 SE2d 251) (2000). Here, despite Ailara’s two violations of the conditions of probation, the trial court utilized its discretion to continue Ailara’s first offender probation and never revoked his first offender status, entered an adjudication of guilt, or resentenced Ailara for his underlying crime of child molestation.

Accordingly, upon fulfillment of Ailara’s probationary period, he was entitled to discharge under the First Offender Act. “[A] first-offender probationer is automatically discharged upon the successful completion of the terms of the sentence without the necessity of any subsequent certification of that successful completion in the records of the trial court.” Humphreys v. State, 287 Ga. 63, 70-71 (4) (694 SE2d 316) (2010) (citing State v. Mills, 268 Ga. 873, 875 (495 SE2d 1) (1998); OCGA § 42-8-62 (a)). Significantly, the State does not dispute that Ailara completed his probationary period and in fact concedes that “Ailara was automatically discharged under OCGA [§] 42-8-62 when no adjudication of guilt was entered during the term of his first offender probationary sentence.” The State instead contends that Ailara’s appeal should be dismissed because “the trial court’s unnecessary and ‘merely ministerial’ order was not subject to appeal.” To the extent the State is claiming that the trial court’s order is moot, however, “it does not appear that [Ailara] would fail to derive any benefit from a favorable ruling in this appeal.” (Citation omitted.) O’Neal v. Oxendine, 237 Ga. App. 171, 174, n. 2 (514 SE2d 908) (1999); see Trotman v. Velociteach Project Mgmt., 311 Ga. App. 208, 210 (1), n. 6 (715 SE2d 449) (2011) (“[T]he primary criterion in making the mootness determination is whether the appellant would derive any benefit from the appeal of the moot issue.”) (citation and punctuation omitted). Notwithstanding the automatic nature of Ailara’s discharge, the trial court’s order speaks for itself. And as long as the clerk of the trial court has not entered “ ‘on the criminal docket and all other records of the court pertaining thereto’ a specified notice of the defendant’s discharge and the legal effect thereof,” Mills, supra, 268 Ga. at 875 (citing OCGA § 42-8-62 (a)), Ailara would benefit from reversal of the trial court’s erroneous order. Therefore, we reverse and remand this case with direction to the trial court to vacate its order denying Ailara’s discharge from first offender probation.

Decided October 4, 2011.

Gerard B. Kleinrock, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

Judgment reversed and case remanded with direction.

Ellington, C. J., and Doyle, J., concur.

       OCGA § 16-6-4 (a) provides in relevant part: “A person commits the offense of child molestation when such person: (1) Does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the persont.]”

       Ailara entered an Alford plea. See McKiernan v. State, 288 Ga. 140, 142 (2) (702 SE2d 170) (2010) (“Under North Carolina v. Alford, [400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970),] the trial court may accept a guilty plea from a defendant who claims innocence if the defendant has intelligently concluded that it is in his best interest to plead guilty and the court has inquired into the factual basis for the plea and sought to resolve the conflict between the plea and the claim of innocence.”) (citation omitted).

       We note that individuals convicted of sexual offenses as defined in OCGA § 17-10-6.2 are not eligible for first offender consideration under the current version of the Act. OCGA § 42-8-60 (d) (2); see also OCGA § 17-10-6.2 (a) (5) (“sexual offense” includes child molestation as defined in OCGA § 16-6-4 (a)). However, OCGA § 42-8-60 (d) (2) did not become effective until July 1, 2006, Ga. L. 2006, p. 379, §§ 26, 30, and was therefore not applicable to Ailara’s 1997 child molestation offense.


author: MILLER, Presiding Judge.

text:
    A11A1428.
    CAMPBELL v. THE STATE.
    (717 SE2d 494)
   MILLER, Presiding Judge.

Following a jury trial, Alton Sinclair Campbell was convicted of criminal attempt to commit murder (OCGA §§ 16-4-1; 16-5-1), aggravated assault with intent to rob (OCGA § 16-5-21 (a) (1)), possession of a firearm during commission of a felony (OCGA § 16-11-106), and possession of a firearm by a convicted felon (OCGA § 16-11-131). On appeal, Campbell claims that the evidence was insufficient to prove that he intended to commit murder. We conclude that any rational trier of fact could have found the elements of criminal attempt to commit murder beyond a reasonable doubt, and affirm.

On appeal, we construe the evidence favorably to the jury’s verdict. Graves v. State, 280 Ga. App. 420 (634 SE2d 186) (2006). “We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the jury was authorized to find [Campbell] guilty beyond a reasonable doubt.” Hughes v. State, 290 Ga. App. 475 (1) (659 SE2d 844) (2008). So viewed, the evidence shows that Campbell walked into a convenience store and pointed his handgun at the clerk’s face. The clerk’s initial response was to laugh. Campbell said “it is real,” and fired the gun twice. One shot hit the clerk in the upper chest.

An eyewitness described the following:

Q. ... So [Campbell] puts the gun in the man’s face. And you said that the man kind of moved the gun away?
A. And said it was fake.
Q. So in response to that, what did [Campbell] do?
A. [He] [s]aid, yes, it is real, he was going to shoot him.
Q. Okay. And you said he fired, or you heard it click how many times?
A. Two.
Q. It clicked twice without the big loud boom from a gunshot?
A. Yes.
Q. How many gunshots did you hear?
A. I heard two after I left the store.

Criminal attempt results “when, with intent to commit a specific crime, [a person] performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. “A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.” OCGA § 16-5-1. Malice is express where a “deliberate intention unlawfully to take the life of another human being ... is manifested by external circumstances capable of proof.” OCGA § 16-5-1 (b). Malice is implied “where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.” Id.

Campbell argues that the evidence merely showed that he entered the store to commit a robbery and that the shooting occurred as a result of the actions of the victim in reaching for Campbell’s weapon. It follows, Campbell maintains, that the evidence was insufficient to show that he acted with intent to cause the victim’s death. We disagree.

As recounted above, a witness’s testimony indicated that Campbell did not shoot the victim contemporaneously with the victim’s motion toward the weapon, but that Campbell kept “click[ing]” the weapon until it finally discharged a bullet into the victim’s body. That Campbell had only an intent to rob is inconsistent with evidence of Campbell’s response to the victim’s belief that the weapon was fake — that is, Campbell responded that “it is real” and proved the point by gunning the victim down. Further, Campbell shot at the clerk — twice — at close range, inflicting a grievous wound. See OCGA § 16-2-6 (trier of fact may find criminal intent “upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted”); Thomas v. State, 226 Ga. App. 441, 445 (8) (487 SE2d 75) (1997) (crime of attempted murder supported by evidence that defendant and accomplices fired multiple shots in direction of police officer); Kelley v. State, 201 Ga. App. 343, 344 (1) (411 SE2d 276) (1991) (defendant convicted of attempted murder upon evidence that, while intruding in victim’s home, defendant blocked the exit, threw the victim against the wall, held a knife to her throat, told her not to scream, and then began stabbing the victim when she screamed). Any rational trier of fact could have found beyond a reasonable doubt that Campbell was guilty of criminal attempt to commit murder. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).

Decided October 4, 2011.

Anthony S. Carter, for appellant.

Layla H. Zon, District Attorney, Anne M. Kurtz, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       Campbell was also found guilty of aggravated battery (OCGA § 16-5-24), aggravated assault with a deadly weapon (OCGA § 16-5-21 (a) (2)), and an additional count of possession of a firearm during commission of a felony. For purposes of sentencing, the trial court merged the aggravated battery and aggravated assault with a deadly weapon into the offense of criminal attempt to commit murder; and it merged the second count of possession of a firearm during commission of a felony into the first count of possession of a firearm during commission of a felony.

       Campbell also claims that with respect to the aggravated battery offense, the State failed to prove the essential element of serious disfigurement. As previously noted in footnote 1, the trial court merged this count into the offense of criminal attempt to commit murder. “We need not consider an enumeration of error which addresses the sufficiency of the evidence to convict on a count on which the trial court failed to enter judgment.” (Citation and punctuation omitted.) Nelson v. State, 277 Ga. App. 92, 96 (1) (b) (625 SE2d 465) (2005).


author: BARNES, Presiding Judge.

text:
    A11A0961.
    BOARD OF COMMISSIONERS OF GLYNN COUNTY v. JOHNSON et al.
    (717 SE2d 272)
   BARNES, Presiding Judge.

The instant case arises out of Glynn County’s use of a helicopter for mosquito control. Rodger M. Johnson filed this personal injury and nuisance suit against the Board of Commissioners of Glynn County, alleging that he sustained personal injuries after breathing chemicals that were sprayed by the helicopter. His wife, Pamela Johnson, asserted a claim for loss of consortium arising from her husband’s alleged injuries. The Board of Commissioners moved to dismiss the plaintiffs’ complaint on the ground that the claims were barred by sovereign immunity, and the trial court entered a summary order denying the motion. This appeal followed. For the reasons discussed below, we conclude that the County did not waive its sovereign immunity and that members of the Board of Commissioners were not sued in their individual capacities. Accordingly, we reverse the trial court’s order and remand with the instruction that the plaintiffs’ complaint be dismissed.

“In ruling on a motion to dismiss, the trial court must accept as true all well-pled material allegations in the complaint and must resolve any doubts in favor of the plaintiff.” (Citations, punctuation and footnote omitted.) Roberson v. Northrup, 302 Ga. App. 405 (691 SE2d 547) (2010). Our review of the trial court’s ruling is de novo. Id.

So viewed, the complaint shows that Glynn County operates helicopters that spray for insects and mosquitoes within the boundaries of the county. In the early morning hours of May 27, 2005, a county-operated helicopter was spraying chemicals in a neighborhood on the north end of St. Simons Island. Mr. Johnson was employed by a construction company and was working outside in the neighborhood at the time. According to Mr. Johnson, he attempted to warn the helicopter of his presence as it flew overhead, but it nevertheless made several low passes over the area where he was working, where it sprayed “noxious and dangerous chemicals” down on him and others.

Mr. Johnson claims that as a result of his exposure to the chemicals, he suffered “severe and permanent injuries to his lungs.” Consequently, he commenced this personal injury and nuisance action against the members of the Board of Commissioners of Glynn County in their official capacities, and his wife asserted a claim for loss of consortium. The plaintiffs alleged that the helicopter was being operated by an employee or agent of Glynn County and that they were entitled to damages for their injuries.

1. The Board of Commissioners contends that the trial court erred in failing to dismiss the complaint because the plaintiffs’ personal injury and nuisance claims were barred by sovereign immunity. We agree.

A suit against members of a county board of commissioners in their official capacities is tantamount to a suit against the county itself. See Gilbert v. Richardson, 264 Ga. 744, 746 (2), n. 4 (452 SE2d 476) (1994). As such, the Board of Commissioners in this case may invoke the protection of sovereign immunity. See id. See also Lincoln County v. Edmond, 231 Ga. App. 871, 874 (1) (501 SE2d 38) (1998) (claims against board of commissioners barred by sovereign immunity).

As provided in Georgia’s [Constitution, sovereign immunity extends to the counties, and a county’s sovereign immunity “can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e). See also OCGA § 36-1-4 (“A county is not liable to suit for any cause of action unless made so by statute.”). Under Georgia law, sovereign immunity is an immunity from suit, rather than a mere defense to liability, and, therefore, whether a governmental defendant has waived its sovereign immunity is a threshold issue. A waiver of sovereign immunity must he established by the party seeking to benefit from that waiver.

(Citations, punctuation and footnotes omitted.) McCobb v. Clayton County, 309 Ga. App. 217, 217-218 (1) (a) (710 SE2d 207) (2011). Mindful of these principles, we turn to the contentions in the present case.

(a) In the trial court, the plaintiffs contended that Glynn County waived its sovereign immunity under OCGA § 33-24-51 by purchasing a liability insurance policy covering the mosquito control helicopter. We disagree.

It is true that OCGA § 33-24-51 meets the criteria for a statutory waiver of sovereign immunity. See Hewell v. Walton County, 292 Ga. App. 510, 512 (1) (664 SE2d 875) (2008). Subsection (a) of that statute provides:

A municipal corporation, a county, or any other political subdivision of this state is authorized in its discretion to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury to any person or for damage to property of any person, or for both arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation, county, or any other political subdivision of this state under its management, control, or supervision, whether in a governmental undertaking or not, and to pay premiums for the insurance coverage.

(Emphasis supplied.) In its current form, subsection (b) of OCGA § 33-24-51 then provides that sovereign immunity is waived where a local government purchases insurance on “any motor vehicle” as authorized in subsection (a) of the statute, if the insurance covers “the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his or her official duties in an amount greater than the amount of immunity waived as in Code Section 36-92-2.”

Here, however, Glynn County’s purchase of liability insurance did not waive its sovereign immunity under OCGA § 33-24-51 because a helicopter is not a “motor vehicle” as that term is understood in the statute. As we recently held, “any motor vehicle” as used in the current version of OCGA § 33-24-51 refers to a vehicle that (1) is capable of being driven on the public roads and (2) is covered by a liability insurance policy purchased by the local government entity. Glass v. Gates, 311 Ga. App. 563, 567 (1) (716 SE2d 611) (2011). Because a helicopter is not capable of being driven on the public roads, there could be no waiver of Glynn County’s sovereign immunity pursuant to OCGA § 33-24-51. See Pate v. Turner County, 162 Ga. App. 463, 463-464 (291 SE2d 400) (1982) (landfill compactor with metal wheels that could only be driven on soil or dirt rather than a hard surface such as a road did not constitute a “motor vehicle”).

(b) The plaintiffs further contended that sovereign immunity did not bar their claims because operation of the mosquito control helicopter was an abnormally dangerous activity for which strict liability applied; Glynn County acted in reckless disregard for the safety of others in authorizing the helicopter to spray the neighborhood area; and Glynn County’s decision to authorize the operation of the helicopter was ultra vires. But none of these contentions provide a basis for waiving the sovereign immunity of a local government; rather, as previously noted, under the Georgia Constitution, immunity “can only be waived pursuant to a legislative act which specifically provides that sovereign immunity is waived and [describes] the extent of such waiver.” (Citation and punctuation omitted.) Woodard v. Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581) (1995). See Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e).

(c) Lastly, the plaintiffs contended in the trial court that sovereign immunity did not bar their nuisance claim. “A county may be liable to an owner in damages to property, either real or personal, through inverse condemnation by a nuisance, created, maintained, or worsened by such county”; in that context, sovereign immunity is not applicable because “inverse condemnation is a form of eminent domain.” (Citations omitted.) Howard v. Gourmet Concepts Intl., 242 Ga. App. 521, 524 (3) (529 SE2d 406) (2000). See Ga. Const, of 1983, Art. I, Sec. Ill, Par. I. “However, a personal injury for purposes of inverse condemnation does not constitute personal property that can be taken. Sovereign immunity bars any action for personal injury or wrongful death against a county arising from nuisance or inverse condemnation.” (Citation and punctuation omitted.) Rutherford v. DeKalb County, 287 Ga. App. 366, 369 (2) (651 SE2d 771) (2007). Because the plaintiffs’ claims were for personal injuries sustained as a result of the operation of the helicopter, sovereign immunity barred the nuisance claim. Id.

For the reasons explained in Division 1 (a)-(c), the plaintiffs did not carry their burden of showing that Glynn County waived its sovereign immunity with regard to its operation of the mosquito control helicopter. It follows that the trial court erred in failing to dismiss the plaintiffs’ claims against the members of the Board of Commissioners in their official capacities on sovereign immunity grounds.

2. In their appellate brief, the plaintiffs proceed with their argument as if Tony Thaw, a former Glynn County Commissioner, is a party to this litigation in his individual capacity. According to the plaintiffs, Mr. Thaw acted in an ultra vires manner and for personal profit by ordering the use of the helicopter for mosquito control on the day in question. As such, the plaintiffs allege that he is not entitled to official immunity and that they should be permitted to proceed with their damages claims against him individually, even if their claims against members of the Board of Commissioners in their official capacities should have been dismissed. The plaintiffs’ assertions are without merit because the record shows that they never sued Mr. Thaw in his individual capacity.

We have stressed that there is a “big difference” between an official capacity suit and an individual capacity suit. See City of Atlanta v. Harbor Grove Apts., 308 Ga. App. 57, 58 (1) (706 SE2d 722) (2011); Ward v. Dodson, 256 Ga. App. 660, 662 (569 SE2d 554) (2002). See also Colvin v. McDougall, 62 F3d 1316, 1318 (11th Cir.1995). As pointed out above, suits against county employees in their official capacities are in reality suits against the county itself. See Gilbert, 264 Ga. at 746 (2), n. 4. Because any recovery of damages would be paid out of the public purse, county employees sued in their official capacities are entitled to invoke the protection afforded by sovereign immunity. See id. In contrast, county employees sued in their individual capacities face potential personal liability for any damages recovered, and they are afforded the protection of official immunity for discretionary actions taken within the scope of their official authority, done without malice or an intent to injure. See Grammens v. Dollar, 287 Ga. 618, 619 (697 SE2d 775) (2010). “The rationale for this immunity is to preserve the [county] employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.” Cameron v. Lang, 274 Ga. 122, 123 (1) (549 SE2d 341) (2001).

In determining whether a defendant has been sued in his official or individual capacity, courts must look to the complaint and the course of proceedings, mindful that “in general, plaintiffs have a duty to make plain who they are suing and to do so well before trial.” (Citation and punctuation omitted.) Ward, 256 Ga. App. at 662. Here, the plaintiffs’ complaint, as amended, does not state whether the claims are being brought as official capacity or individual capacity claims. However, the amended complaint refers to the defendants only as “members of the Board of Commissioners of Glynn County, State of Georgia,” does not mention any board member by name or refer to any actions by any specific board member, and makes no reference to discretionary or ministerial acts or to the doctrine of official immunity. And, after filing their complaint, the plaintiffs did not refer to Mr. Thaw as a defendant or mention the issue of official immunity until approximately two years later, and not until their fifth brief in response to the Board of Commissioners’s motion to dismiss their complaint on sovereign immunity grounds. In light of the complaint and the course of proceedings, it is clear that the members of the Board of Commissioners were sued only in their official capacities, notwithstanding the plaintiffs’ belated attempt to re-frame their claims after two years of litigation.

In reaching this conclusion, we note that the plaintiffs’ reference to Mr. Thaw as an individual defendant in their fifth brief in response to the Board of Commissioners’s motion to dismiss did not serve to constructively amend their complaint to add him as a party to this litigation.

Decided September 14, 2011

Reconsideration denied October 5, 2011.

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Terry L. Readdick, Garret W. Meader, for appellant.

Edward E. Boshears, for appellees.

In order for an additional party to be added to an existing suit by amendment pursuant to OCGA § 9-11-15, leave of court must first be sought and obtained pursuant to OCGA § 9-11-21. The record in this case makes it clear that leave of court to add a party to the existing case by amendment was never sought nor obtained.

(Punctuation and footnote omitted; emphasis in original.) Valdosta Hotel Properties v. White, 278 Ga. App. 206, 209 (1) (628 SE2d 642) (2006). See Dollar Concrete Constr. Co. v. Watson, 207 Ga. App. 452, 453 (428 SE2d 379) (1993). Because the plaintiffs never sought leave of court to add Mr. Thaw as a party in his individual capacity, any unilateral attempt by the plaintiffs to amend their complaint in this regard was ineffective. Id. Hence, there are simply no claims against Mr. Thaw in his individual capacity in this case.

Judgment reversed and case remanded with instruction.

Adams and Blackwell, JJ., concur.

       Although interlocutory, the dismissal order is directly appealable under the collateral order doctrine. See Bd. of Regents &c. v. Canas, 295 Ga. App. 505, 507 (1) (672 SE2d 471) (2009).

       OCGA § 33-24-51 was amended in 2002, and the amendments became effective on January 1, 2005. See Ga. L. 2002, p. 579, §§ 1, 5. Thus, the current version of the statute applies in the present case.

       OCGA § 36-92-2 sets certain monetary limits for the mandatory waiver of sovereign immunity by local government entities for their operation of a “covered motor vehicle” as that term is defined in OCGA § 36-92-1.

         The decision relied upon by the plaintiffs for the proposition that a county’s sovereign immunity is waived for ultra vires acts, Tolbert v. Crisp County Power Comm., 176 Ga. App. 856 (338 SE2d 295) (1985), was handed down before the 1991 amendment to the Georgia Constitution that added the above-quoted language regarding when immunity “can only be waived.” See Ga. L. 1990, p. 2435, § 1. Thus, to the extent that Tolbert could be construed as standing for the proposition that an action for damages can be brought against a county for ultra vires acts, it has long been superseded by constitutional amendment.

       We note that failing to name a defendant in his or her individual capacity is not a mere misnomer that can be corrected without leave of court under OCGA § 9-11-10 (a). “Correction of a misnomer . . . does not add a new and distinct party.” (Punctuation and footnote omitted.) Valdosta Hotel Properties, 278 Ga. App. at 211 (1). Because suing the members of the Board of Commissioners in their official capacities is in reality a suit against Glynn County, adding Mr. Thaw as a defendant in his individual capacity would be tantamount to adding a new party to the lawsuit. See Ward, 256 Ga. App. at 662. See also Soley v. Dodson, 256 Ga. App. 770, 772 (569 SE2d 870) (2002) (noting substantial difference between suit brought against a government employee in his official capacity and one brought against him in his individual capacity).


author: PHIPPS, Presiding Judge.

text:
    A11A1301.
    BUTLER v. THE STATE.
    (717 SE2d 649)
   PHIPPS, Presiding Judge.

Stephen Lee Butler filed this interlocutory appeal from the trial court’s grant of the state’s motion to admit similar transaction evidence, contending that: (1) the independent offenses are not sufficiently similar to the crimes charged; and (2) the probative value of evidence of the independent offenses is outweighed by the prejudicial effect. Finding no error, we affirm.

Before issuing an order admitting the independent offenses, the trial court held a hearing pursuant to Uniform Superior Court Rule 31.3 (B). At the hearing, the state bore the burden of making three affirmative showings as to the independent offenses it sought to introduce.

The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility. The second affirmative showing is that there is sufficient evidence to establish that the accused committed the independent offense or act. The third is that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

1. Butler does not take issue with the trial court’s finding that the state made the first of these showings, that is, the purpose for which the separate offenses would be admitted. Nor does he contest that he committed the separate offenses, to which he pled guilty. Rather, Butler takes issue with the trial court’s finding as to the third of the required showings, that the independent offenses and the crimes charged are sufficiently similar so that proof of the former tends to prove the latter.

Butler has been indicted for aggravated sexual battery, aggravated child molestation, and child molestation, for acts committed against his four-year-old daughter in 2008. Specifically, Count 1 of the indictment charges Butler with aggravated sexual battery in that he did “intentionally penetrate with a foreign object, to wit: a shiny object that makes a sound and moves, the sexual organ of [the child] without her consent.” Count 2 of the indictment charges Butler with aggravated child molestation in that he did

perform an immoral and indecent act to ... a child under the age of sixteen (16) years, by placing a shiny object that makes a sound and moves inside her vaginal area, which did result in physical harm to said child, with intent to arouse and satisfy the sexual desires of said child and said accused.

Count 3 of the indictment charges Butler with child molestation for bathing with the child with the door locked, with the intent to arouse and satisfy the sexual desires of said child and said accused.

The evidence of the independent offenses showed that in January 2005, approximately four years before the crimes charged, Butler communicated in an internet chat room with a police officer posing as a fourteen-year-old girl. When the officer sent a message to Butler that the child was “looking for sex,” the two arranged to meet. Butler mentioned that he liked girls or women who dressed in a particular manner and asked that the child dress that way for the meeting. Butler stated that he would bring condoms to the meeting, and he promised the child “a good time.”

Two days after the initial communication, Butler arrived at a park, as arranged, to meet the fourteen-year-old child. An undercover police officer posed as the child. Butler did not touch the undercover officer. As Butler and the officer began to walk away, officers apprehended Butler. A search of Butler and his vehicle revealed no condoms or other sexual items. Butler was indicted for and pled guilty to two counts of violation of the Computer or Electronic Pornography and Child Exploitation Prevention Act.

After the similar transaction hearing, the trial court concluded that there was sufficient connection or similarity between the 2005 offenses and the crimes charged such that proof of the former tended to prove the latter. Accordingly, the court granted the state’s motion to admit the evidence at trial to show motive, intent, identity, and bent of mind. The court thereafter certified the case for immediate review.

We must abide by the following principles when reviewing a trial court’s order concerning the admission of similar transaction evidence:

On the question of similarity, the trial court’s findings will not be disturbed unless clearly erroneous. In reviewing whether there were sufficient similarities to create a connection between the previous crime and the instant crimes such that the former tends to prove the latter, we focus on the similarities rather than the dissimilarities. Similar transactions need not be identical to the offense being tried but must show sufficient similarity or connection between the independent incidents and the offense at issue.
[I]n crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.

“In order to introduce evidence of a defendant’s lustful disposition, the State must link those practices to the specific crime charged.” And this court has held that “[sjexual molestation of young children, as well as teenagers, regardless of sex or type of act, is sufficient similarity to make the evidence admissible.” “To show sufficient similarity, there need only be a logical connection between the independent act and the crime charged.” Indeed,

because of the liberal admission of similar transaction evidence in cases involving sexual offenses, especially those against children or teenagers, a certified copy of a prior conviction for a sex crime against a child may, with no other evidence, sufficiently prove that the prior crime is similar to the current crime.

Butler relies heavily on Payne v. State to support his argument that because the independent offenses are not similar to the crimes charged, the trial court erroneously ruled that evidence of the offenses could be admitted at trial. But Payne does not support his argument. In that case, the Court held that evidence of the defendant’s prior rape of an adult woman was sufficiently similar to the child molestation charges to be admissible; the dissimilarity in the victims’ ages did not bar admissibility of the similar transaction evidence.

This Court also has affirmed the admission of similar transaction evidence where the prior incident did not allege criminal activity, but was relevant because it “tend[ed] to show. . . lustful disposition.” In Sears v. State, convictions for incest, enticing a child for indecent purposes, child molestation, and rape were upheld on appeal where the defendant claimed it was error to admit similar transaction evidence of “two other witnesses relating inappropriate or questionable behavior by appellant toward them as young girls.” Acknowledging that the testimony of the two witnesses “did not allege criminal activity,” the court held the evidence was nevertheless properly admitted and “relevant as tending to show appellant’s lustful disposition.”

In Hostetler v. State, we upheld convictions for three counts of child molestation, based on the defendant’s having touched the breasts and vagina of the victim and having exposed his penis to the victim, where there was no touching involved in the similar transactions. In the similar transactions, the defendant was seen either masturbating or exposing his penis in public. We reiterated our prior holdings that “[t]here is no requirement that the prior crime or transaction be absolutely identical in every respect,” and that “the sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, is of sufficient similarity to make the evidence admissible.”

Butler was conyicted of violating the Computer or Electronic Pornography and Child Exploitation Prevention Act (OCGA § 16-12-100.2 (d) (1)), by using an online computer messaging service to entice another person believed to be a child to commit child molestation. Butler was also convicted of violating the Act (OCGA § 16-12-100.2 (e) (1)) for having contact with someone he believed to be a child, via an online computer messaging service, which contact involved explicit descriptions of sexual conduct intended to arouse the sexual desire of the accused. Contrary to Butler’s assertions that these independent offenses are not similar because they did not involve a “real” child, there is criminal liability even where there is no child, if the required mens rea exists.

Conceding that the independent offenses and the crimes charged “both . . . allege crimes that are sexual in nature with minors,” Butler nevertheless contends that the elements of the two offenses are not sufficiently similar such that proof of the former tends to prove the latter. But the computer pornography and child exploitation offenses and the crimes charged (child molestation, aggravated child molestation, and aggravated sexual battery) do have a logical connection to each other; the independent offenses involve a “lascivious motivation or bent of mind,” to determine Butler’s motivation or bent of mind to commit the crimes charged. The independent and the charged incidents both involve sexual contact with females under the age of consent. The absence of touching in the independent offenses does not bar admission of the similar transaction evidence to show Butler’s lustful disposition toward female children. In considering the similarities rather than the differences between the independent offenses and the crimes charged, we cannot conclude the trial court erred in ruling that the independent offenses were admissible.

2. Butler also contends that the trial court erroneously admitted evidence of the independent offenses because the probative value of the evidence is outweighed by the prejudicial effect. However, having been admitted,

Decided October 6, 2011.

Lyle K. Porter, for appellant.

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

evidence which is otherwise relevant does not become inadmissible simply because it incidentally puts a defendant’s character or reputation into evidence. . . . [A] trial court’s finding that other transactions evidence is relevant necessarily constitutes an implicit finding that the probative value of that evidence outweighs its prejudicial impact.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

        Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991) (before any evidence of independent offenses or acts may be admitted into evidence, a hearing must be held pursuant to Uniform Superior Court Rule 31.3 (B)).

       Id.

       Id. (citation and footnote omitted; emphasis supplied).

       OCGA § 16-12-100.2 (d) (1) and (e) (1). OCGA § 16-12-100.2 (d) (1) provides:
      It shall be unlawful for any person intentionally or willfully to utilize a computer on-line service or Internet service, including but not limited to a local bulletin board service, Internet chat room, e-mail, on-line messaging service, or other electronic device, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit any illegal act described in Code Section 16-6-2, relating to the offense of sodomy or aggravated sodomy; Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation; Code Section 16-6-5, relating to the offense of enticing a child for indecent purposes; or Code Section 16-6-8, relating to the offense of public indecency or to engage in any conduct that by its nature is an unlawful sexual offense against a child.
      OCGA § 16-12-100.2 (e) (1) provides:
      A person commits the offense of obscene Internet contact with a child if he or she has contact with someone he or she knows to be a child or with someone he or she believes to be a child via a computer on-line service or Internet service, including but not limited to a local bulletin board service, Internet chat room, e-mail, or on-line messaging service, and the contact involves any matter containing explicit verbal descriptions or narrative accounts of sexually explicit nudity, sexual conduct, sexual excitement, or sadomasochistic abuse that is intended to arouse or satisfy the sexual desire of either the child or the person, provided that no conviction shall be had for a violation of this subsection on the unsupported testimony of a child.

        Susan v. State, 254 Ga. App. 276, 282 (4) (562 SE2d 233) (2002) (citations, punctuation and footnotes omitted); see also Payne v. State, 285 Ga. 137 (674 SE2d 298) (2009).

        Hostetler v. State, 261 Ga. App. 237, 238 (1) (582 SE2d 197) (2003).

        Herring v. State, 288 Ga. App. 169, 173-174 (2) (b) (653 SE2d 494) (2007).

        Wilson v. State, 210 Ga. App. 705, 708 (2) (436 SE2d 732) (1993); see also Hostetler v. State, supra at 239 (1) (citing Oller v. State, 187 Ga. App. 818, 820 (2) (371 SE2d 455) (1988)).

        Lewis v. State, 275 Ga. App. 41, 43 (2) (b) (619 SE2d 699) (2005) (citation omitted).

        Washington v. State, 286 Ga. App. 268, 270 (2) (648 SE2d 761) (2007) (citations, punctuation and footnotes omitted; emphasis supplied). See Spradling v. State, 310 Ga. App. 337, 339, n. 5 (715 SE2d 672) (2011).

       Supra.

       Id. at 137-139.

        Sears v. State, 182 Ga. App. 480, 483 (5) (356 SE2d 72) (1987), overruled on other grounds, Johnston v. State, 213 Ga. App. 579, 580 (445 SE2d 566) (1994).

       Supra at 483 (5).

       Id.

       Id.

       Supra.

        Hostetler, supra at 237-239 (1).

       Id. at 238-239.

       Id. at 239.

       OCGA § 16-6-4 (a) (1) defines child molestation: “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.”

        Spivey v. State, 274 Ga. App. 834, 840-841 (3) (619 SE2d 346) (2005).

        Oller, supra at 821 (2).

        Hostetler, supra.

        Susan, supra.

        Farley v. State, 265 Ga. 622, 625 (2) (458 SE2d 643) (1995) (citations and punctuation omitted).


text:
    A11A1440.
    MAPP v. WE CARE TRANSPORTATION SERVICES, INC. et al.
    (717 SE2d 263)
   PHIPPS, Presiding Judge.

Gladys E. Mapp, as representative of the estate of Vera L. Travis, appeals the trial court’s order dismissing her Renewed Complaint for Personal Injuries (the “renewed complaint”). In their appellate briefs, all parties refer to the renewed complaint. Because the appellate record does not contain a copy of the renewed complaint, this court ordered the trial court to transmit it for inclusion in the record on appeal and sent copies of its order to all parties. In response, the trial court clerk submitted a letter stating that the clerk’s office did not have a copy of the renewed complaint in its files, but had only a civil case initiation form. The appellant has made no effort to supplement the appellate record.

We review a trial court’s ruling on a motion to dismiss de novo. We cannot resolve the issues raised in this appeal because the appellant has failed to satisfy her “burden of providing us with a sufficient record to enable us to review the enumeration[ ] of error[s] raised.” And the party asserting error must show it by the record; “mere assertions of error in briefs cannot satisfy this duty.” Under these circumstances, we must assume that the record supported the trial court’s ruling.

Decided September 1, 2011

Reconsideration denied October 7, 2011.

Michael B. King, for appellant.

Busch, Slipakoff & Schuh, Michael B Bain, for appellee.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

        SunTrust Bank v. Hightower, 291 Ga. App. 62 (660 SE2d 745) (2008).

        Austell Healthcare v. Scott, 308 Ga. App. 393, 395 (1) (707 SE2d 599) (2011) (citation and punctuation omitted).

        Haughton v. Canning, 287 Ga. App. 28, 29 (2) (650 SE2d 718) (2007) (citations and punctuation omitted).

       See id.; see also Austell, supra (when the alleged error is shown only in appellant’s brief and not by the record, appellate court must assume trial court’s rulings were correct); Hertz Corp. v. McCray, 198 Ga. App. 484, 486 (2) (402 SE2d 298) (1991) (“It is a well-established appellate rule that the burden is on the appellant to show error by the record, and when a portion of the [record] bearing upon the issue raised by the enumeration of error is not brought up so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result.”) (citation and punctuation omitted).


author: Adams, Judge.

text:
    A11A0786.
    CLEVELAND v. KATZ.
    (717 SE2d 500)
   Adams, Judge.

Helen Cleveland appeals the trial court’s order dismissing her renewal complaint on the grounds of failure to timely perfect service on Stephen M. Katz and the expiration of the statute of limitation. We review a trial court’s dismissal of a complaint on these grounds for an abuse of discretion. See Jones v. Brown, 299 Ga. App. 418, 418-419 (683 SE2d 76) (2009); Long v. Bellamy, 296 Ga. App. 263, 266-267 (1) (c) (674 SE2d 120) (2009). Because we determine that the trial court failed to apply the proper standard in exercising its discretion, we vacate the trial court’s order and remand for further proceedings.

In March 2003, Cleveland retained Katz, David E. Betts, and their law firm, Betts & Katz LLFj to represent her in pursuing claims against a former employer. After the litigation ended in an unfavorable result for Cleveland, she filed a legal malpractice action against Katz, Betts and the firm in December 2007, which she voluntarily dismissed on February 18, 2009. There appears to be no dispute that the statute of limitation on Cleveland’s claims against Katz expired at some point prior to this voluntary dismissal. Cleveland then re-filed her action on Friday, August 14, 2009, four days before the six-month period for filing a renewal action expired pursuant to OCGA § 9-2-61 (a). Under OCGA § 9-11-4 (c), Cleveland had five days from the time of receiving the summons from the clerk to achieve service.

The facts surrounding Cleveland’s attempts to serve Katz are in dispute. Cleveland asserts that Katz was evading service and submitted affidavits from three process servers and her attorney in support of her claim. Cleveland’s counsel stated that he hired private process servers on Monday, August 17, 2009. The next day, he contacted his process servers who told him that they had been unsuccessful in serving Katz. The attorney states that he hired an additional process server and contacted the process servers daily from August 20 to September 8 to check on the status of Katz’s service. He was informed on September 9 that Katz had been served on September 8 at 8:30 p.m.

Process server Daryl Brooks submitted an affidavit stating that he served Katz on September 8, 2009, by personally serving his wife Rachael at their home. Cleveland filed an affidavit of service with the trial court reflecting this service. Brooks further averred that he re-served Katz with the summons and complaint on September 19, 2009. Another process server, Chalie Abebe, averred that he twice attempted service on Katz on August 18, once at his home and once at his office. He left a note at Katz’s office. Abebe stated that he next called Katz on August 20 and arranged to meet him the following morning, but Katz did not show for the meeting. Three attempts at service between August 22 and August 26 were also unsuccessful. David Weaver, a third process server, stated that Cleveland’s counsel hired him on Monday, August 24, 2009, and he unsuccessfully attempted service on Katz at various times from Wednesday, August 26, 2009, through September 8, 2009, both at his home and at his office. No one would answer the door when he went to Katz’s home. Weaver spoke with Rachael Katz on three occasions by telephone, and she told him that Katz was not available but she would call Weaver when he was available. She never called Weaver.

In response, Katz submitted his own affidavit detailing his whereabouts during the time Cleveland was attempting service. Katz denied that he was attempting to evade service, but rather stated that he was in his office and at home every day during the relevant period, and no one attempted to serve him between August 14 and September 19, 2009. He stated that one process server called him at home on August 18, 2009, to arrange to meet the next day to serve him with a subpoena or a summons, but the individual called back fifteen minutes later and cancelled the appointment. In support of his affidavit, Katz produced records showing his usage of the Pacer online filing system used by the federal courts from the relevant period. He also submitted an affidavit from his office assistant, Crosrine Gayle, who stated that she was in the office during the relevant period and no one had attempted to serve Katz there.

Katz stated that on September 8, 2009, his son, Andrew, came by his house to pick up some sports equipment. When Katz answered the door, he noticed that Andrew was standing on some documents, which apparently had been dropped on his doorstep. When Katz examined the documents, he observed that they appeared to be the “unsigned, unstamped, undated summons and complaint in this action.” He stated that no process server knocked on the door or rang the bell at his house on September 8. Andrew Katz also submitted an affidavit supporting Katz’s version of discovering the documents on the doorstep. Katz conceded, however, that a process server handed him a copy of the summons and complaint at his home on September 19, 2009.

In dismissing the complaint, the trial court held that Cleveland did not act with reasonable diligence in serving Katz. The court found that Cleveland had until August 19, 2009, to serve Katz within the five-day period under OCGA § 9-11-4 (c), yet no one contacted Katz about service until August 18, one day before the five-day period expired, and no attempt was made to achieve service on Katz on August 19, 2009, the last day of the five-day period. The court noted that Cleveland’s own evidence shows that the process server did not contact Katz by phone until August 20, one day after the five-day period expired. And although service was later achieved on Katz “either ... on September 8th 2009 and/or September 16, 2009,” the court found that it did not need to consider such service as either date was outside the applicable statutory period. In the same order, the trial court denied Cleveland’s motion to strike Katz’s answer and for default based upon its finding that the case stood automatically dismissed by operation of law on August 19, 2009.

1. Cleveland first contends that the trial court erred in calculating the five-day period under OCGA § 9-11-4 (c) for service of the complaint. We agree. Cleveland correctly asserts that because the five-day requirement is less than seven days, the provisions of OCGA § 1-3-1 (d) (3) apply. That statute provides in pertinent part: “When the period of time prescribed [in a statute] is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.” See also OCGA § 9-11-6 (a). Cleveland filed her complaint on Friday, August 14, 2009. Accordingly, she had until Friday August 21, 2009, in which to achieve service in accordance with OCGA § 9-11-4 (c), because the intervening Saturday and Sunday, August 15 and 16, 2009, are excluded from the calculation of the five-day period. See Day v. Burnett, 199 Ga. App. 494, 495 (1) (405 SE2d 316) (1991); Williams v. Colonial Ins. Co. &c., 199 Ga. App. 760 (406 SE2d 99) (1991). The trial court therefore erred in calculating the last day for service as August 19, 2009, and in holding that the case stood dismissed by operation of law as of that date.

2. Cleveland next asserts that the trial court applied an improper standard in determining whether service upon Katz was effective. Once again, we agree. The trial court erred in failing to consider Cleveland’s efforts at service outside the five-day period. The trial court stated in its order that it did not need to consider any service “outside the statutory period,” but the law is clear that such service may be effective if the plaintiff meets the applicable standards.

Our courts employ a two-tiered test in determining whether service is effective where the defendant is served outside both the statute of limitation and the five-day period under OCGA § 9-11-4 (c). In such a case, the plaintiff must achieve service in a reasonable and diligent manner unless she becomes aware of a problem with service, in which case, the plaintiff is held to an even higher standard:

When a complaint is filed within the statute of limitation, but service is not made within five days or within the period of limitation, the plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to ensure that proper service is made as quickly as possible. Once the plaintiff becomes aware of a problem with service, however, his duty is elevated to an even higher duty of the greatest possible diligence to ensure proper and timely service. The plaintiff must provide specific dates or details to show diligence.

(Footnotes omitted.) Scanlan v. Tate Supply Co., 303 Ga. App. 9, 11 (b) (692 SE2d 684) (2010). In this case, however, the trial court made no mention of any elevated standard even though the facts of this case raise an issue as to whether Cleveland and her counsel became aware at some point that a problem existed with service, requiring them to employ the greatest possible diligence in serving Katz.

Indeed, the record below presents a number of factual issues which must be resolved in determining whether Cleveland exercised the appropriate diligence in perfecting service on Katz or whether she is guilty of laches. Those issues are addressed “in the first instance to the discretion of the trial court.” (Punctuation and footnote omitted.) Livingston v. Taylor, 284 Ga. App. 638, 639 (644 SE2d 483) (2007). See also Long, 296 Ga. App. at 266-267 (1) (c) (whether plaintiff met burden of showing reasonable and diligent pursuit of service is a question of fact for the trial court); Patel v. Sanders, 277 Ga. App. 152, 153 (1) (626 SE2d 145) (2006) (trial court’s factual findings will be upheld if any evidence supports them). The trial court, however, failed to address these issues under the appropriate standards. Accordingly, we vacate the trial court’s order granting Katz’s motion to dismiss and denying Cleveland’s motion to strike and remand the case for consideration of the issues under the proper legal standards. See generally Alvelo v. State, 288 Ga. 437, 439 (1) (704 SE2d 787) (2011) (vacating trial court’s order where it failed to apply the proper legal standard to party’s motion); Wilken Investments v. Plamondon, III, 310 Ga. App. 146 (712 SE2d 576) (2011) (vacating and remanding dismissal order for clarification).

Decided October 7, 2011.

William G. Cromwell, for appellant.

Carlock, Copeland & Stair, Michele R. Jones, Stephen M. Katz, David E. Betts, for appellee.

Judgment vacated and case remanded.

Barnes, E J., and Blackwell, J., concur.

       Betts and the firm apparently reached a settlement with Cleveland and they were dismissed from the action on July 1, 2010, so they are not parties to this appeal.

       Katz stated in his affidavit and Cleveland’s counsel admitted that Cleveland waited 11 months after filing the original action in December 2007 to serve Katz. Katz asserted that shortly after he filed a motion to dismiss for insufficiency of process in that action, Cleveland voluntarily dismissed her complaint. But our Supreme Court has held that “inasmuch as diligence in perfecting service of process in an action properly refiled under OCGA § 9-2-61 (a) must be measured from the time of filing the renewed suit, any delay in service in a valid first action is not available as an affirmative defense in the renewal action.” (Punctuation omitted.) Robinson v. Boyd, 288 Ga. 53, 55-57 (2) (701 SE2d 165) (2010).

       Katz argues that the electronically-generated summons Cleveland claims to have served upon him on September 8, 2009, was invalid because it was not signed, dated nor issued by the state court. In support of this argument, he submitted an affidavit from the Chief Clerk of the State Court of Fulton County, who averred that the document served upon him “is not a summons issued under the Rules and Procedures of the State Court of Fulton County and was not issued by the Clerk of this Court in the above styled action.” Cleveland submitted a counter-affidavit from the Administrator of the Court, who averred that the summons was indeed valid, although the administrator’s affidavit appeared to focus on whether the name of the deputy clerk appearing on the form was correct. Katz then filed a second affidavit from the Chief Clerk identifying the September 16 summons, served on Katz on September 19, as a valid summons. The second document is different in form from the summons Cleveland claims to have served on September 8, 2009. The trial court, however, did not reach this issue in dismissing the complaint against Katz, and we expressly do not reach that issue in this appeal.

       The trial court’s order appears to misstate the latter date, as the record reflects that a new summons was issued on September 16, 2009, but was not served until September 19.

       Cleveland’s lawyer stated that his process servers told him on or after August 18, 2009, that Katz was evading service and the lawyer felt a need to hire an additional process server on August 24.


author: McFadden, Judge.

text:
    A11A1277, A11A1526.
    BLACKMORE v. BLACKMORE (two cases).
    (717 SE2d 504)
   McFadden, Judge.

In Case No. A11A1277, David Blackmore appeals an order increasing the visitation granted to his former wife, Dawn Black-more, with their two children. In Case No. A11A1526, he appeals an order denying his motion for supersedeas. Contrary to his arguments, the trial court did not impermissibly change custody by expanding visitation; did not commit harmful error by refusing to review custody evaluation reports; did not rely solely on the testimony of one witness; and was within its authority to restrict the parties from communicating with each other and from attending the children’s extracurricular activities. We therefore affirm the final order. To the extent the issue is not moot, we also affirm the trial court’s denial of David Blackmore’s motion for supersedeas because the trial court did not exceed its authority in exempting the visitation provisions from supersedeas even after David Blackmore had filed a notice of appeal.

The Blackmores divorced in January 2006 and agreed to joint legal and physical custody of their two children and agreed that David Blackmore would have final decision-making authority. Less than five months later, David Blackmore moved to modify custody, contending that Dawn Blackmore’s behavior was erratic and unstable. The trial court entered a consent order resolving the modification petition. The parties continued to have joint legal custody, but David Blackmore became the primary physical custodian.

In 2008, Dawn Blackmore filed the instant petition to modify visitation, seeking, among other things, more visitation and primary decision-making authority over healthcare issues and the children’s extracurricular activities. David Blackmore filed a counterclaim, seeking dismissal of Dawn Blackmore’s petition and a modification of her visitation “to insure that the children [were] not placed in an unsafe situation.”

The parties agreed to the appointment of a guardian ad litem and to the appointment of Dr. Jacqueline Hill as a custody evaluator. Once Hill completed her custody evaluation, the guardian ad litem reviewed it — before the parties received copies — and determined there was a need for immediate intervention. Accordingly, at the urging of the guardian ad litem, David Blackmore filed an emergency motion seeking immediately to limit Dawn Blackmore’s visitation and to require that her visitation be supervised.

On July 24, 2009, after hearing testimony from Hill, the trial court entered an order on David Blackmore’s emergency motion, adopting in their entirety the recommendations in Hill’s custody evaluation. The court ordered Dawn Blackmore’s visitation to be supervised and limited to every other Saturday from 9:00 a.m. until 6:00 p.m.

Beginning June 9, 2010, the trial court conducted a final hearing on the modification petition and counterclaim. It entered a final order on July 29, 2010, which removed the restrictions on Dawn Blackmore’s visitation and granted her more visitation. The court continued David Blackmore’s primary physical and legal custody of the children but ordered that each parent would make decisions regarding the day-to-day care of the children, including their extracurricular activities and medical treatment, while the children were residing with that parent. The court included a provision prohibiting the parties from contacting each other and preventing them from attending extracurricular activities when the other parent has custody.

David Blackmore filed an appeal. He also filed a motion to enforce supersedeas, contending that the trial court should enforce the July 24, 2009 order on his emergency motion pending the resolution of the appeal of the July 2010 order. Dawn Blackmore responded and filed a motion for supersedeas bond. The trial court denied the motions. David Blackmore also filed an appeal of that order as well as a Rule 40 (b) Emergency Motion seeking the enforcement of the July 24, 2009 emergency order, rather than the July 29, 2010 final order, pending appeal. We denied that motion. We have consolidated the appeals for decision.

1. David Blackmore argues that under OCGA § 5-6-46 (a), the notice of appeal of the final order and his payment of appeal costs triggered automatic supersedeas of that order and that the trial court erred by denying his motion for supersedeas. He contends that the July 24, 2009 emergency order should have remained in effect and governed custody and visitation pending the appeal of the final order. To the extent that this argument is not moot given our ruling below, see Simpson v. Simpson, 233 Ga. 17, 22 (209 SE2d 611) (1974), we find no error.

As to future cases, the legislature has resolved this issue by adding subsection (e) to OCGA § 5-6-34 and subsection (k) to OCGA § 5-6-35. The new subsections provide:

Where an appeal is taken pursuant to this Code section for a judgment or order granting nonmonetary relief in a child custody case, such judgment or order shall stand until reversed or modified by the reviewing court unless the trial court states otherwise in its judgment or order.

But the new subsections apply “to all notices or applications for appeal filed on or after July 1, 2011,” Ga. L. 2011, p. 562, § 4, and thus do not resolve the issues here.

In its order denying David Blackmore’s motion for supersedeas and Dawn Blackmore’s motion for the imposition of a supersedeas bond, the trial court found that the allegations upon which the July 24, 2009 emergency order was based — that Dawn Blackmore had “emotional and mental issues” — were not supported by any credible evidence and were wholly without merit. It added that the court’s intention, as reflected in its nunc pro tunc entry of the final order and its ruling from the bench that Dawn Blackmore’s unsupervised visitation begin immediately, was for the “severely restrictive, oppressive and unwarranted” terms of Dawn Blackmore’s visitation to be lifted immediately as in the best interest of the children. In its order resolving the supersedeas issue, the court expressly excepted the custody and visitation provisions of its June 12, 2010 order from any supersedeas effect. See Walker v. Walker, 239 Ga. 175, 176 (236 SE2d 263) (1977). The trial court did not exceed its authority.

David Blackmore argues that the trial court could not include the language excepting the visitation provisions from supersedeas effect once he had appealed the final order. Instead, he argues, the court had to include the key language at the time the final order was entered. We disagree.

In Walker, 239 Ga. at 175, the Supreme Court created a method to modify the automatic supersedeas of custody provisions pending appeal. The court wrote that

[w]henever an appellee in this situation wishes to challenge the grant of an automatic supersedeas as it relates to custody pending appeal, he can ask the trial judge to include in his final order a special provision that the custody award is effective as of the date of the judgment to protect the best interest and welfare of the child. Subject to review by this court, this type of order would effectively modify the automatic supersedeas as it regards custody and would be enforceable through contempt proceedings in the trial court.

(Emphasis in original.) Id. at 176. Nothing in Walker indicates that the court must include the language at the time the order is entered in order to effectively modify the automatic supersedeas. Indeed, the Supreme Court referred to the party wishing to challenge the automatic supersedeas as “appellee,” indicating the party could seek such remedy after a notice of appeal had been filed.

In Frazier v. Frazier, 280 Ga. 687, 690-691 (5) (631 SE2d 666) (2006), the Supreme Court extended Walker and ruled that a trial court was authorized to except the custody provisions of a divorce decree from the automatic supersedeas provided by OCGA § 9-11-62 (b). That statute, which governs the stay of proceedings upon the filing of a motion for new trial, provides that “[t]he filing of a motion for a new trial or motion for judgment notwithstanding the verdict shall act as supersedeas unless otherwise ordered by the court; but the court may condition supersedeas upon the giving of bond with good security in such amounts as the court may order.” As it concerned the supersedeas effect of a motion for new trial, Frazier clearly contemplated a post-final-order adjustment to exempt the custody provisions of such final order from automatic supersedeas.

David Blackmore argues that the holding in Frazier only applies to motions for new trial, not notices of appeal. But given the Supreme Court’s acknowledgment of the trial court’s broad authority to decide matters of the supersedeas effect of child custody rulings, as well as the trial court’s mandate to protect the best interest and welfare of the children pending appeal, see Walker, 239 Ga. at 176, we see no reason to limit the trial court’s authority in the manner urged by David Blackmore. Consequently, we conclude the trial court did not err by resolving the issue of supersedeas after David Blackmore had filed his notice of appeal.

2. David Blackmore contends that the court’s final order amounted to a de facto change in custody, which was impermissible because there were no changes in material circumstances. See OCGA § 19-9-3 (b). The provisions of the final order which David Blackmore contends amount to a change in custody are the increased amount of visitation granted to Dawn Blackmore as well as the provision in which the court granted each parent the right to make decisions regarding the children’s day-to-day care while the children are in the custody of that parent.

It is true that a trial court may not indirectly change custody by modifying the visitation schedule. Martin v. Buglioli, 185 Ga. App. 702, 703 (365 SE2d 866) (1988); Bullington v. Bullington, 181 Ga. App. 256, 257 (2) (351 SE2d 700) (1986). But here there was no such change.

In Martin, 185 Ga. App. at 703, we held that the trial court created a de facto change in custody by giving the noncustodial parent visitation for the greater part of the year. In Bullington, 181 Ga. App. at 257, we held that the trial court created a de facto change in custody by giving the noncustodial parent the right to visitation at all times except for the first weekend of each month, alternating holidays, and a set period of summer vacation. In Kennedy v. Adams, 218 Ga. App. 120, 122-123 (3) (460 SE2d 540) (1995), a physical precedent cited by David Blackmore, we held that since the time of visitation provided to the noncustodial parent exceeded the time of custody provided to the custodial parent, the new schedule amounted to a change in custody. But here the increased visitation provided to Dawn Blackmore does not exceed the time of custody allowed to David Blackmore. We conclude that the increase did not amount to a de facto change of custody. Nor did the provision allowing Dawn Blackmore to make decisions regarding the children’s day-to-day care when they are in her custody amount to a de facto change in custody.

3. David Blackmore contends that the court abused its discretion in prohibiting the parties from communicating with each other, other than through an intermediary, except in the event of a major medical emergency and except to allow David Blackmore to notify Dawn Blackmore by e-mail of the name and location of the children’s school. He also challenges the provision that prohibits the parent not having physical custody at the time from attending the children’s extracurricular activities. David Blackmore contends that these provisions violate his constitutional rights and his right to contract.

David Blackmore has not shown that he raised his constitutional arguments before the trial court or that the trial court ruled on them. We therefore cannot address them here. Gottschalk v. Gottschalk, 311 Ga. App. 304, 314 (9) (715 SE2d 715) (2011). In any event, “[a] trial court has discretion to place restrictions on custodial parents’ behavior that will harm their children.” Ward v. Ward, 289 Ga. 250 (1) (710 SE2d 555) (2011). The provisions do not, as David Blackmore insists, infringe upon his rights. Rather, they are narrowly tailored conditions justified by the evidence. “In awarding visitation rights, a trial court is authorized to impose such restrictions as the circumstances warrant.” (Citation and punctuation omitted.) Moore v. Moore-McKinney, 297 Ga. App. 703, 713 (5) (678 SE2d 152) (2009) (upholding prohibition against parties possessing weapons when exchanging the children, as evidence supported conclusion that provision was in the children’s best interests and provision did not infringe upon the Georgia constitutional right to keep and bear arms).

Although Dawn Blackmore does not object to these provisions being stricken, we are a court “for the correction of errors of law committed by lower courts.” Taylor v. Taylor, 182 Ga. App. 412, 413 (356 SE2d 236) (1987). Here the lower court did not err. We note that this issue returns to the breast of the court.

4. David Blackmore argues that the court erred by refusing to admit — or even to read — the custody evaluation and amended custody evaluation reports prepared by Hill. Although Hill testified at the hearing, David Blackmore contends that her testimony did not provide all the raw statistical data that is contained in the reports. He also contends that the trial court never reviewed the many sources of information Hill received, but he fails to specify these sources or how they would have affected the outcome.

At the final hearing, Hill testified extensively. She testified about the methods she used to gather data to prepare her custody evaluation. She listed the tests she administered and described them. She testified about the results of the tests and her conclusions. And she testified about her reports. “Since the excluded evidence was merely cumulative, no harmful error is shown. ...” (Citations and punctuation omitted.) Walthour v. State, 196 Ga. App. 721, 722 (1) (397 SE2d 10) (1990).

5. David Blackmore argues that the trial court abused its discretion in relying solely upon the testimony of Dawn Blackmore’s psychiatrist to the exclusion of all other testimony and evidence because the psychiatrist testified as her advocate. Nothing in the final order indicates that the trial court failed to consider the other evidence, including the testimony of Hill, the testimony of the children’s psychologist, the testimony of the guardian ad litem, the testimony of the children’s former nannies, the testimony of the social worker who supervised visitation, the testimony of one child’s teacher and the other child’s soccer coach, the testimony of Dawn Blackmore, and the testimony of David Blackmore.

Upon appellate review, we presume that the trial court properly considered all of the evidence before it. Brewer v. Harvey, 278 Ga. App. 503, 505 (629 SE2d 497) (2006). And “[a]s factfinder, it was the trial court’s duty to reconcile seemingly conflicting evidence and to weigh the credibility of witnesses.” Willis v. Willis, 288 Ga. 577, 580 (3) (d) (707 SE2d 344) (2010). David Blackmore has not shown that the trial court abused its discretion.

Decided October 7, 2011.

Brock, Clay, Calhoun & Rogers, Nancy I. Jordan, Debbie C. Pelerose, for appellant.

Moore, Ingram, Johnson & Steele, Stephen C. Steele, for appel-lee.

Judgments affirmed.

Phipps, P. J., and Andrews, J., concur.

       David Blackmore’s motion for leave to file a supplemental brief and Dawn Blackmore’s motion for leave to file a supplemental response brief are granted. We have read and considered the supplemental briefs.


text:
    A11A1312.
    CHILDS v. THE STATE.
    (717 SE2d 509)
   Adams, Judge.

On May 19, 2009, Kevin Childs pled guilty to two counts of aggravated battery and one count each of battery, driving while license suspended and driving without insurance. Childs’ plea arose out of three separate indictments involving three separate incidents. Childs was sentenced on these charges the same day. On February 11, 2011, he filed a pro se motion for out-of-time appeal in each case. The trial court denied these motions, and Childs appeals. We affirm for the reasons set forth below.

“We review a trial court’s denial of a motion for out-of-time appeal for an abuse of discretion.” (Footnote omitted.) Fleming v. State, 276 Ga. App. 491, 491-492 (1) (623 SE2d 696) (2005). “[A]n appeal will lie from a judgment entered on a guilty plea only if the errors asserted on appeal can be resolved by facts appearing on the face of the record, and the denial of a request for out-of-time appeal is proper if an examination of the record reveals no merit to the claimed errors.” (Citations omitted.) Adams v. State, 285 Ga. 744 (1) (683 SE2d 586) (2009).

1. Childs asserts that he is entitled to an out-of-time appeal because his guilty plea was not knowingly and voluntarily entered.

The entry of a guilty plea involves the waiver of three federal constitutional rights: the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. It is the duty of a trial court to establish that the defendant understands the constitutional rights being waived, and the record must reveal the defendant’s waiver of those constitutional rights. Boykin [v. Alabama, 395 U. S. 238, 243 (89 SC 1709, 23 LE2d 274) (1969)].

Beckworth v. State, 281 Ga. 41, 42 (635 SE2d 769) (2006). The Supreme Court of Georgia recently clarified its current understanding of the Boykin requirements:

The bottom line is this: . . . any defendant who pleads guilty will be able to secure a reversed of his conviction if the record does not show that he was specifically advised of each of the “three Boykin rights” and he properly presents the issue to a reviewing court.

Tyner v. State, 289 Ga. 592, 596 (4) (714 SE2d 577) (2011). Nevertheless, our Supreme Court has recognized that “nothing in Boykin requires [the State] during a guilty plea proceeding to use any precisely-defined language or ‘magic words.’ ” Hawes v. State, 281 Ga. 822, 824 (642 SE2d 92) (2007).

Childs asserts that his guilty plea is invalid because he was not properly informed of his right against compulsory self-incrimination. The record reflects that Childs signed three separate “Petition[s] to Enter Plea of Guilty” forms in connection with the charges against him. By signing these forms, Childs indicated that he understood that if he pled “NOT GUILTY,” he had “the right to testify or not testify, as [he chose], that [he could not] be required to testify and that if [he did] not testify the jury could not take that as evidence against [him].” He also indicated on the form that he understood that by pleading guilty, he gave up these rights. At the hearing on his guilty plea, the prosecutor also asked Childs if he understood that “if you plead not guilty you have the right to testify or not testify as you choose, that you cannot be required to testify and that if you do not testify the jury cannot take that as evidence against you” and if he understood that “if you plead guilty, you will have waived, that is given up” these and other rights. Childs indicated he understood this waiver.

Although neither the pre-printed plea form nor the prosecutor used the word “self-incrimination,” each clearly informed Childs that if he pled not guilty, he did not have to testify and his silence could not be used as evidence against him by a jury. This speaks to his right to remain silent in a jury trial. The Supreme Court of Georgia found that similar language

adequately conveyed to [the defendant] the core principles of the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment. The purpose underlying Boykin is to ensure a defendant’s receipt of adequate information about his rights, so that his decision to plead guilty is truly intelligent and voluntary.

Rogers v. State, 286 Ga. 55, 56 (685 SE2d 281) (2009). The Supreme Court has also indicated that informing a defendant of his right to remain silent may be an adequate substitute for advising him of the privilege against self-incrimination if it is made clear that the right arises at trial and not just at the plea hearing. See Wilson v. Kemp, 288 Ga. 779, 780 (707 SE2d 336) (2011) (reversing guilty plea where trial court informed defendant that he had a right to remain silent at guilty plea hearing, but no showing that defendant was advised of right to remain silent at trial). See also Adams v. State, 285 Ga. at 746, n. 3 quoting Louisiana v. Walker, 833 S2d 367, 370 (La. App. 2002) (“In the jurisprudence, the terminology ‘right to remain silent’ frequently is used interchangeably with the ‘right against self-incrimination’ and is an acceptable substitute as long as it is clear that the trial court is referring to the right to remain silent ‘at trial.’ [Cit.]”); Jackson v. State, 285 Ga. 840, 841 (1) (684 SE2d 594) (2009) (plea voluntary where trial court specifically advised Jackson of his right to remain silent and thereby not incriminate himself). Accordingly, we conclude that the record in this case indicates that Childs was adequately advised that by pleading guilty, he was waiving his right against self-incrimination in accordance with Boykin.

2. Childs contends that his guilty plea was not knowingly and voluntarily entered because the guilty plea transcript fails to affirmatively show that the trial court ascertained the factual basis for the plea as required by Uniform Superior Court Rule (USCR) 33.9. The record shows, however, that the trial court questioned Childs about the facts underlying his pleas. The prosecutor filled in information that Childs omitted from his recitation. The trial court also indicated that the prosecutor previously had given a factual basis for the crimes, although it apparently was not recorded for transcription, and the court asked Childs if he disagreed with anything the prosecutor had said. Childs indicated that he did not disagree.

When the transcript presents evidence that the trial court was aware of the factual basis, USCR 33.9 does not otherwise require the trial court to affirmatively state that it is satisfied there is a factual basis. In such an instance, the acceptance of a plea would be deemed a factual finding that there is an adequate factual basis for the plea.

Decided October 7, 2011.

Kevin Childs, pro se.

Garry T. Moss, District Attorney, Cliff Head, Patricia G. Hull, Assistant District Attorneys, for appellee.

(Citations and punctuation omitted.) Adams v. State, 285 Ga. at 747 (4) (a).

Childs argues, however, that we should disregard his statement of the factual basis because he was not cognizant of all the rights he was waiving. But as noted above and from our review of the transcript and the plea forms, we conclude that Childs was adequately informed of his constitutional rights and that his plea was knowingly and voluntarily entered. Thus, no basis exists for excluding his testimony at the plea hearing.

3. Childs also asserts that the trial court erred by failing to hold a hearing on his motion for out-of-time appeal after finding that the issues he would raise on appeal were questions that could be resolved by facts appearing on the record. But the trial court was not required to hold an evidentiary hearing because Childs was not entitled to a direct appeal from his guilty pleas based on the existing record. Upperman v. State, 288 Ga. 447, 448 (2) (705 SE2d 152) (2011); Belcher v. State, 304 Ga. App. 645, 650 (3) (697 SE2d 300) (2010).

Judgment affirmed.

Barnes, B J., and Blackwell, J., concur.

       There, the defendant was asked: “Do you understand that at a jury trial, you have the right to testify on your own behalf, but that you also have the right not to testify, and if you choose not to testify, it cannot be held against you in any way?,” to which he replied in the affirmative. Rogers, 286 Ga. at 56. Rogers, however, had also signed a plea form indicating that he understood that by pleading guilty, he understood that he was waiving his “right not to incriminate myself.” Id. at 56, n. 2.