author: BARNES, Presiding Judge.

text:
    A16A0142.
    CAMPBELL v. THE STATE.
    (785 SE2d 649)
   BARNES, Presiding Judge.

An Athens-Clarke County jury found Kenyatta LaTroy Campbell guilty of trafficking in marijuana, and the trial court denied his motion for new trial. On appeal, Campbell contends that the trial court erred in denying his motion to suppress evidence obtained by the police from his cell phone, and that he was denied the effective assistance of counsel at trial. For the reasons discussed below, we affirm.

1. We apply the following principles in reviewing the denial of Campbell’s motion to suppress:

When the facts material to a motion to suppress are disputed, it generally is for the trial judge to resolve those disputes and determine the material facts. This principle is a settled one, and this Court has identified three corollaries of the principle, which limit the scope of review in appeals from a grant or denial of a motion to suppress in which the trial court has made express findings of disputed facts. First, an appellate court generally must accept those findings unless they are clearly erroneous. Second, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. And third, an appellate court generally must limit its consideration of the disputed facts to those expressly found by the trial court.

(Citations and footnotes omitted.) Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015). As part of our review, “we may consider trial testimony in addition to the testimony submitted during the motion to suppress hearing.” (Footnote omitted.) Green v. State, 282 Ga. App. 5, 5 (637 SE2d 498) (2006). Guided by these principles, we turn to the record in the present case.

On the evening of December 19, 2011, officers with the Athens-Clarke County Police Department executed a search warrant on the house where Dennis Brown lived with his girlfriend and children. The officers discovered almost 200 pounds of marijuana stored throughout the house. The marijuana had a street value of approximately $200,000.

Marijuana found in Brown’s bedroom closet was in the process of being broken down into smaller quantities for sale. The closet contained a garbage bag with marijuana in it, “digital scales, different, quantities of marijuana broke[n] down on the shelf, [and] sandwich bags used to package.”

The marijuana stored throughout the rest of the house was in bale form and wrapped in layers of plastic wrap, axle grease, and fabric softener. According to a police sergeant involved in executing the search warrant, this unique form of packaging is commonly used in Arizona and other western states in an effort to mask the odor of the drugs. In the bathroom, there was a bale of the uniquely packaged marijuana in a large duffel bag. Duffel bags of the same size and brand were found throughout the house.

Brown was present during the search, and officers detained him and confiscated his cell phone. After he was Mirandized, Brown agreed to be interviewed and told the police sergeant that his girlfriend had nothing to do with the marijuana, and that he was responsible for it. Brown admitted that the marijuana in his bedroom closet was his own, but said that he was storing the bales of marijuana that were scattered around the rest of the house for someone else. Brown was hesitant to provide that person’s name and stated that he was worried for his own safety. The sergeant was already familiar with Campbell as the potential source of Brown’s drug supply based on information that had been provided to him by other detectives, and he asked Brown if Campbell was his drug supplier. Brown nodded his head in the affirmative but did not want to say Campbell’s name out loud.

During Brown’s interview, the police sergeant noticed that Brown’s cell phone kept receiving incoming text messages and phone calls from the same contact, “Head.” The last text message from “Head” asked, “Where u at?” Around the same time, Campbell drove up to Brown’s house. Officers informed the sergeant that someone was outside in the driveway, and the sergeant paused his interview with Brown and went outside to see who was there. The sergeant recognized Campbell, who was standing beside his car in the driveway with a cell phone in his hand, and detained him. The sergeant took Campbell’s cell phone, which was a “flip phone,” and determined that the telephone number of the phone matched the number of the contact identified as “Head” on Brown’s phone.

Shortly thereafter, the police sergeant continued his interview with Brown. When he informed Brown that Campbell had been detained in the driveway, Brown appeared surprised. Brown confirmed that “Head” was Campbell and that he was the source of the marijuana in the house.

Later that night, around 2:00 a.m., officers obtained a search warrant for the house where Campbell lived. Upon executing the warrant, officers discovered marijuana residue and seized three duffel bags. The duffel bags found in Campbell’s house were identical to the duffel bags that had been discovered at Brown’s house.

As part of their investigation, the police downloaded from Brown’s cell phone all of the text messages between Brown and the contact “Head.” According to Brown, many of the text messages were in code to avoid police detection and concerned the delivery of the marijuana to his house.

Further investigation revealed that Campbell had been arrested after attempting to purchase a large shipment of marijuana in Tucson, Arizona, in April 2011 but was out on bond by the time of the search of Brown’s house. According to undercover narcotics agents involved in the April 2011 incident, Campbell had attempted to purchase 490 pounds of marijuana for $235,000. Brown later testified that Arizona was the source of Campbell’s marijuana, and Brown and his girlfriend both testified that they had seen Campbell driving vehicles with Arizona tags when he delivered marijuana to their house. Additionally, the police saw a car with an Arizona tag parked in Campbell’s driveway when they executed the search warrant at his house.

Based on the marijuana seized from Brown’s house, Campbell and Brown were charged with trafficking in marijuana. Campbell moved to suppress any evidence obtained from his cell phone, arguing that the police should have obtained a search warrant. Following an evidentiary hearing, the trial court denied the motion, concluding that the warrantless seizure and search of Campbell’s cell phone was constitutional.

Brown agreed to plead guilty and testified at Campbell’s trial, identifying Campbell as the source of the marijuana. After receiving all the evidence, including the testimony of Brown, his girlfriend, and the various law enforcement officers involved in the instant case and the Arizona case, as well as similar transaction evidence of Campbell’s prior involvement in marijuana distribution, the jury found Campbell guilty of the charged offense. Campbell then filed a motion for new trial, which the trial court denied, resulting in this appeal.

On appeal, Campbell contends that the trial court erred in denying his motion to suppress the evidence obtained by the police from his cell phone. Relying upon Riley v. California, _ U. S. _ (134 SCt 2473, 189 LE2d 430) (2014), Campbell argues that the officers were required to obtain a search warrant before seizing and searching his phone.

In Riley, the United States Supreme Court held that a search warrant generally is required before police officers may search a suspect’s cell phone, even when the phone is seized incident to arrest. 134 SCt at 2493 (IV). Here, the police sergeant seized Campbell’s cell phone and opened it to determine whether the phone number of the cell phone matched the number of the caller identified as “Head” on Brown’s phone. Campbell argues that Riley required the police to obtain a search warrant for his cell phone before seizing the phone and searching it to determine the phone number, while the State argues that the brief examination of a cell phone to determine the phone number is distinguishable from Riley and should not require a warrant.

Pretermitting whether Riley required the police to obtain a search warrant for Campbell’s cell phone, we conclude that any error by the trial court in denying Campbell’s motion to suppress the contents of his phone was harmless. See generally Ashe v. State, 285 Ga. 359, 361 (2) (676 SE2d 194) (2009) (“[T]o be successful, an enumeration of error requires a showing of both harm and error.”). At trial, the State introduced printouts of the inculpatory text messages from the contact “Head” that had been extracted by the police from Brown’s cell phone. The printouts also listed the phone number found in Brown’s phone associated with the contact “Head.”

The only evidence obtained from Campbell’s cell phone that was introduced at trial was the telephone number of his phone, which matched the number for “Head” in Brown’s phone. The evidence of the phone number from Campbell’s cell phone thus was used by the State to show that he was the contact nicknamed “Head” in Brown’s phone that had sent text messages regarding the delivery of the marijuana.

Significantly, however, the State presented other properly admitted evidence showing that Campbell was the contact nicknamed “Head” in Brown’s phone. Both Brown and his girlfriend testified that “Head” was Campbell’s nickname. Additionally, a police investigator assigned to the Northeast Georgia Regional Drug Task Force who had participated in the execution of the search warrant at Brown’s house testified that she was familiar with Campbell, and that he went by the nickname “Head.” Moreover, the evidence showed that Campbell arrived at Brown’s house with his cell phone in hand around the same time that “Head” texted Brown, “Where u at?” The information obtained from Campbell’s phone was cumulative of this testimony and evidence. Accordingly, even if the phone number of Campbell’s phone was acquired as the result of an unlawful search and seizure, we affirm the trial court’s denial of Campbell’s motion to suppress because any error in that ruling was harmless beyond a reasonable doubt. See Sims v. State, 297 Ga. 401, 403 (2) (774 SE2d 620) (2015) (denial of motion to suppress videotape was harmless because cumulative of other properly admitted evidence); Green v. State, 187 Ga. App. 373, 374 (1) (370 SE2d 348) (1988) (denial of motion to suppress was harmless, where evidence that was seized as a result of the search was cumulative of other properly admitted evidence).

2. Campbell contends that his trial counsel rendered ineffective assistance by recalling Brown as a witness to question him about comments that he purportedly made about Campbell on his Facebook page that were posted after his initial trial testimony. We disagree because Campbell has failed to establish that the performance of his trial counsel was deficient.

To succeed on his ineffective assistance claim under the test established in Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984), Campbell must demonstrate that his “counsel’s performance was deficient and that, but for that deficient performance, there is a reasonable probability that the outcome of his trial would have been different,.” (Footnote omitted.) Jackson v. State, 309 Ga. App. 450, 452 (2) (710 SE2d 649) (2011). If Campbell fails to prove either the deficiency or prejudice prong of the test for ineffective assistance, his claim fails. Russell v. State, 322 Ga. App. 553, 556 (3) (b) (745 SE2d 774) (2013).

To meet the first prong of the required test for establishing ineffective assistance, the defendant must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct, and that counsel’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the particular circumstances of the case. As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel. Matters of trial tactics, even if they appear in hindsight to be questionable, are grounds to find counsel ineffective only if the tactical decision is so patently unreasonable that no competent attorney would have chosen it.

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

The record reflects that Brown testified during the State’s casein-chief, but defense counsel later recalled Brown as a witness for further cross-examination. After recalling Brown to the witness stand, defense counsel introduced into evidence comments about Campbell that Brown had purportedly posted to his Facebook page after he testified in the State’s case-in-chief, and counsel questioned Brown about those comments. In the comments, Brown berated those who criticized him for testifying on behalf of the State, accused Campbell of not taking responsibility for his conduct, and suggested at one point that Campbell had been involved with another drug dealer who was being prosecuted for the murder of a police officer and other crimes. Subsequently, during closing argument, defense counsel argued that the comments on the Facebook page were a “long, rambling diatribe” that showed that Brown was “ranting, raving, [and] angry” about being caught and was “going to blame everyone else” for his troubles, and more generally that Brown had a pattern of “lying about everything he thinks can help himself and somehow or other make himself look better.”

At the hearing on the motion for new trial, defense counsel testified that his trial strategy had been to discredit Brown, the State’s key witness. Defense counsel testified that he had made the strategic decision to recall Brown as a witness and show that he was making additional comments about Campbell on social media that were slanderous. Defense counsel admitted that “in retrospect” it was probably a “poor decision” to recall Brown and cross-examine him about the social media comments.

Decisions on which witnesses to call and how to conduct cross-examination are matters of trial strategy. Bolick v. State, 244 Ga. App. 567, 569 (1) (a) (536 SE2d 242) (2000). Here, defense counsel clearly made a tactical decision to introduce evidence of additional accusations that Brown had made against Campbell on social media with the intention of dispelling those accusations, which, if successful, would have potentially discredited Brown by illustrating that he would fabricate all sorts of allegations in an effort to shift the blame to Campbell and put himself in a better light.

“In retrospect, [defense] counsel’s decision may appear unwise, but particularly in regard to matters of trial strategy and tactic, effectiveness is not judged by hindsight or result.” (Citation and punctuation omitted.) Dyer, 295 Ga. App. at 499 (1). Instead, we hold that defense counsel’s strategic decision to recall Brown and cross-examine him about the Facebook posts fell within the wide range of professional conduct. See id. (holding that tactical decision by defense counsel to bring up additional, uncharged allegations of abuse and then attempt to show that they were fabricated as part of an effort to further discredit the victim fell within the wide range of professional conduct); Buice v. State, 239 Ga. App. 52, 60 (6) (b) (520 SE2d 258) (1999) (strategic decision to introduce prior molestation allegations and then attempt to refute them fell within the wide range of professional conduct). Accordingly, Campbell has failed to show that his trial court was deficient, and thus cannot succeed on his ineffective assistance claim.

Decided April 27, 2016

Miller & Key, J. Scott Key, for appellant.

Ken n eth W. Mauldin, District Attorney, Brian V. Patterson, Assistant District Attorney, for appellee.

Judgment affirmed.

Boggs and Rickman, JJ., concur.

       The police also conducted a warrantless search of Campbell’s car parked at Brown’s house. A K-9 unit dog alerted on Campbell’s car for the presence of the odor of narcotics, but the police did not find any drugs inside the car.

        Riley was decided after the trial court heard Campbell’s motion to suppress and denied it.

       The Supreme Court did note that “even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone,” such as the exigent circumstances exception to the warrant requirement. Riley, 134 SCt at 2494 (IV).

       It is unclear from the record whether the police sergeant simply flipped open Campbell’s cell phone and looked at the screen or opened files in the phone to determine the telephone number.


source: Caselaw Access Project

license: Public Domain

text:
    A16A0682.
    SAPP v. THE STATE.
    (785 SE2d 654)
   BARNES, Presiding Judge.

Following his convictions for fleeing or attempting to elude a police officer and obstruction of an officer, Charles Sapp appeals. Sapp contends that there was insufficient evidence to support the conviction for fleeing or attempting to elude a police officer. We disagree and affirm the conviction.

“On appeal we must view the evidence in the light most favorable to the verdict, [Sapp] no longer enjoys the presumption of innocence, and we do not weigh the evidence nor judge the credibility of the witnesses.” Hyman v. State, 222 Ga. App. 419, 421 (1) (474 SE2d 243) (1996).

Viewed in the light most favorable to the verdict, the evidence shows that on December 31, 2012, Sapp and his co-defendant were involved in a knife fight with another man. After the altercation, Sapp and the co-defendant got into a van and left the scene, with Sapp riding in the passenger seat. A police officer who had been dispatched to the scene saw the van traveling away from the area at a high rate of speed and initiated a traffic stop. He activated his blue lights and siren, but the van “attempted to flee” from him.

At one point, the officer saw the passenger, Sapp, exit the vehicle and continue fleeing on foot. The police officer decided to follow Sapp instead of the van and “[g]ave several loud verbal commands to stop and get on the ground to [Sapp] and he refused to do so.” Sapp ran into a back yard gathering, and when the police officer arrived, Sapp began to run toward him with his hands clenched into a fist. The police officer then used his taser on Sapp and arrested him.

Sapp and his co-defendant were indicted for armed robbery, three counts of possession of a knife during the commission of a felony, aggravated battery, burglary, fleeing or attempting to elude a police officer, and two counts of obstruction of an officer. At trial, Sapp was convicted for fleeing or attempting to elude a police officer and one count of obstruction of a police officer. He now appeals, arguing that there was insufficient evidence to convict him of fleeing or attempting to elude a police officer.

“When evaluating the sufficiency of the evidence, the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” Taylor v. State, 267 Ga. App. 588, 590 (600 SE2d 675) (2004); Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). OCGA § 40-6-395 (a) states:

It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. . . .

Furthermore, a passenger can be convicted as a party to the crime of fleeing or attempting to elude a police officer, if he flees the scene on foot after the police have stopped the fleeing vehicle. Cooper v. State, 281 Ga. App. 882, 884 (2) (637 SE2d 480) (2006) (holding “where a passenger flees the scene along with the driver after the police have stopped the vehicle, he becomes chargeable as a party to the crime”).

At trial, the police officer testified that he saw Sapp flee once he exited the pursued vehicle, and Sapp testified that he ran around the corner because he believed “the patrolman would stay with the injured party, inside the van, and then I would get — and get me away on home to my girlfriend, where I was supposed to be.” He also testified he was “intending to flee.” We believe this evidence is sufficient to show that Sapp was a party to the crime of fleeing or attempting to elude the police officer. Westmoreland v. State, 287 Ga. 688, 693 (4) (b) (699 SE2d 13) (2010). See Bivens v. State, 166 Ga. App. 580, 581 (2) (305 SE2d 29) (1983); Cooper, 281 Ga. App. at 884 (2).

Sapp cites to Carter v. State, 249 Ga. App. 354, 357 (5) (548 SE2d 102) (2001) to argue that as a passenger, he cannot be convicted of fleeing or attempting to elude a police officer. However, the present case is distinguishable because in Carter there was no evidence that the defendant passenger fled from the vehicle being pursued by the police. Carter, 249 Ga. App. at 357 (5). Accordingly, we affirm Sapp’s conviction.

Decided April 27, 2016.

Amy L. Ihrig, for appellant.

MegE. Heap, District Attorney, Jerome M. Rothschild, Jr., Lynd-sey H. Rudder, Assistant District Attorneys, for appellee.

Judgment affirmed.

Boggs and Rickman, JJ., concur.


author: Peterson, Judge.

text:
    A16A0228.
    WATSON v. THE STATE.
    (785 SE2d 656)
   Peterson, Judge.

Rodrekus Watson, convicted of robbery as a lesser included offense of armed robbery and theft by receiving stolen property, appeals from the denial of his motion for new trial. He argues that the trial court erred in denying his motion for a directed verdict made after the State’s case-in-chief, and urges us to overrule precedent from the Supreme Court of Georgia providing that we may consider all the trial evidence, not just the evidence introduced during the State’s case-in-chief, in evaluating this claim. Watson also argues that trial counsel was ineffective for failing to object to or request a limiting instruction with regard to references to his status as a convicted felon. Because we have no authority to overrule or modify a decision of the Supreme Court of Georgia, and the evidence did not demand a verdict of acquittal, we reject Watson’s first claim of error. We also conclude that Watson’s claim that counsel was ineffective fails because, given the strong evidence connecting Watson to the robbery, he has failed to establish a reasonable probability that the outcome of his trial would have been different, but for his counsel’s error. Therefore, we affirm.

On appeal from the denial of a motion for directed verdict, this Court must view the trial evidence in the light most favorable to the jury’s verdict. Helton v. State, 284 Ga. App. 777, 777-78 (1) (644 SE2d 896) (2007). So viewed, the trial evidence shows that three men participated in a smash-and-grab robbery at a jewelry kiosk in a mall. The assailants used hammers to shatter the glass display cases, took jewelry from the cases, and fled the scene in a stolen car. After the assailants fled, the kiosk employee noticed blood on top of the glass display case that was not there prior to the robbery

A police investigator took blood swabs from the display case and from broken glass inside the display case, and sent the samples for DNA testing. A GBI DNA analyst compared the DNA profile from the recovered blood samples against a list of known individuals, which did not include Watson, and determined that the DNA was not a match for these individuals. The DNA analyst then submitted the DNA profile to the FBI’s Combined DNA Index System (CODIS), which collects DNA profiles provided by local laboratories taken from arrestees, convicted offenders, and forensic evidence found at crime scenes, including those from unidentified individuals. See Bharadia v. State, 297 Ga. 567, 568 (1) n.3 (774 SE2d 90) (2015).

CODIS issued a “hit” indicating that Watson was a match for the DNA profile obtained from the blood swabs. The CODIS report provided that it was to be used only as an investigative lead. The GBI DNA analyst testified that GBI has a policy requiring local authorities to obtain another DNA sample from the individual identified in the CODIS report and submit it for further testing in order to confirm the CODIS results. No additional DNA samples were taken from Watson until about a week before his May 2012 trial.

The trial court initially held that the DNA test results of those additional samples were inadmissible because Watson did not receive a copy of the results prior to trial. But after Watson called Curtis Turner, a co-defendant, to testify that he did not know Watson and that Watson was not involved in the robbery, the trial court granted the State’s request to present rebuttal evidence. On rebuttal, the State introduced evidence that it had confirmed the CODIS report after testing the additional DNA samples taken from Watson in May 2012, meaning that Watson’s DNA profile matched that of the blood recovered from the display case. The jury subsequently found Watson guilty of robbery and, based on the use of the stolen vehicle, theft by receiving stolen property.

1. On appeal, Watson argues that the trial court erred in denying his motion for a directed verdict of acquittal, and argues that our review of his claim should be limited to the evidence introduced during the State’s case-in-chief. Watson argues that at the time he made his motion, the only evidence linking him to the crime was the CODIS report that specifically provided that the information contained therein was to be used only as an investigative lead and was required to be confirmed with further investigation. We disagree.

Amotion for a directed verdict of acquittal should be granted only when “there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty.’” OCGA § 17-9-1(a); Parham v. State, 320 Ga. App. 676, 677 (2) (739 SE2d 135) (2013). Under Bethay v. State, 235 Ga. 371, 374-75 (1) (219 SE2d 743) (1975), a court reviewing the denial of a motion for a directed verdict is not limited to considering only the evidence presented in the case-in-chief, but may consider all the evidence in the case.

Here, the State introduced evidence during its case-in-chief showing that a CODIS report revealed that the DNA found at the crime scene was a match for Watson. On rebuttal, the State presented evidence that the CODIS report was confirmed with subsequent testing. In a protracted argument spanning almost half of his brief, Watson argues that we should overrule or abandon Bethay’s express provision that we may consider all of the trial evidence in evaluating the denial of a motion for directed verdict. But we have “no authority to overrule or modify a decision made by the Supreme Court of Georgia, as the decisions of the Supreme Court shall bind all other courts as precedents.” Hudson v. State, 325 Ga. App. 657, 660 (3) (754 SE2d 626) (2014) (citation and punctuation omitted). Moreover, Watson makes no argument that the trial court erred in allowing the State to present rebuttal evidence confirming the DNA match. Thus, Watson has failed to provide a legal basis precluding our consideration of the DNA evidence.

Reviewing all of the trial evidence, the State established that no blood was on the display case prior to the robbery, blood was left on and inside the display case as a result of the crime, and the blood was a match for Watson’s DNA. There was no evidence to explain how Watson’s blood could have been left at the crime scene at a time other than when the crime was committed. Thus, the jury would have been authorized to convict Watson of robbery based on his DNA evidence at the crime scene. See Barstad v. State, 329 Ga. App. 214, 216-17 (1) (764 SE2d 453) (2014) (the jury was authorized to infer defendant’s guilt based on, among other things, the lack of evidence showing how his DNA was left at the crime scene other than the commission of the offenses); Roberts v. State, 309 Ga. App. 681, 683 (1) (710 SE2d 878) (2011) (concluding that the unexplained presence of defendant’s blood at crime scene authorized the jury to find the defendant guilty of crime). Because there was evidence showing that Watson was connected to the crimes of robbery and theft by receiving, the trial court did not err in denying Watson’s motion for directed verdict.

2. Watson next argues that trial counsel was ineffective for failing to object to or request a limiting instruction regarding testimony that CODIS was made up of genetic profiles of convicted felons or to object to testimony that Watson was previously convicted of a felony. We disagree.

In order to prevail on an ineffective assistance of counsel claim, Watson “must show that trial counsel’s performance fell below a reasonable standard of conduct and that there existed a reasonable probability that the outcome of the case would have been different had it not been for counsel’s deficient performance.” Scott v. State, 290 Ga. 883, 889 (7) (725 SE2d 305) (2012) (citing Strickland v. Washington, 466 U.S. 668 (104 S. Ct. 2052, 80 LE2d 674) (1984)). In reviewing a claim of ineffective assistance of counsel, we give deference to the trial court’s factual findings, which are upheld unless clearly erroneous, and review a trial court’s legal conclusions de novo. Grant v. State, 295 Ga. 126, 130 (5) (757 SE2d 831) (2014).

Here, trial counsel did not object when the GBI DNA analyst testified that CODIS contained DNA profiles of convicted offenders, “missing persons,” and forensic evidence collected at crime scenes. In response to trial counsel’s questioning, the witness repeated her testimony that CODIS contained DNA profiles of convicted felons. Trial counsel also did not object when the State elicited testimony from the police investigator that the DNA profile of another suspect was in CODIS as a result of that suspect’s felony conviction, nor did counsel object when the detective confirmed that Watson was convicted of a felony prior to 2008. This Court has stated that “evidence that a defendant’s DNA profile is included in a database compiled by a state or a federal government agency would reflect badly on the defendant’s character if the DNA profile or references to the database linked the defendant to criminal activity” Scales v. State, 310 Ga. App. 48, 51-52 (2) (a) (ii) (712 SE2d 555) (2011).

Assuming without deciding that trial counsel was deficient in failing to object to or request limiting instructions regarding references to Watson’s prior felony conviction, Watson has failed to establish prejudice. In this smash-and-grab robbery, Watson’s DNA was found not only on the glass display case of the kiosk, but also on broken glass inside the case. The uncontradicted evidence shows that there was no blood on the display case prior to the robbery. Given that the undisputed evidence establishes that Watson’s blood was left inside the broken glass case at the time the crime was committed, there is no reasonable probability that, but for trial counsel’s errors, the outcome of the trial would have been different. Therefore, the trial court correctly rejected Watson’s claim of ineffective assistance of counsel.

Decided May 2, 2016

John W. Rick, for appellant.

Robert D. James, Jr., District Attorney, Gerald Mason, Assistan t District Attorney, for appellee.

Judgment affirmed.

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

       Blood swabs were also taken from outside The Limited, a retail store in the mall, and the DNA from these swabs was a match for co-defendant Curtis Turner.

       Turner testified that he, co-defendant Kelsey Richardson, and his cousin, Damean Edwards, were the three men involved in the smash-and-grab at the kiosk. Although a fourth co-defendant, Edward Tate, was also charged with and pleaded guilty to the armed robbery, he was not present during the offense.


text:
    A16A0282.
    SIMS v. NATURAL PRODUCTS OF GEORGIA, LLC et al.
    (785 SE2d 659)
   Peterson, Judge.

James Sims sued Richard Creasman, Robert Wilkinson, and Natural Products of Georgia, LLC (“Natural Products”) for breach of a promissory note, fraud, and violation of the Georgia Securities Act (“GSA”), OCGA § 10-5-50. Following a bench trial, the trial court entered a judgment in favor of Sims on the promissory note and ordered Natural Products to pay the balance owed on the note and entered judgment for Wilkinson and Creasman on the other claims because their conduct did not rise to the level of fraud and did not violate the GSA. Sims appeals and argues that the trial court erred in concluding that Creasman did not commit fraud or violate the GSA. Because the evidence supports the trial court’s verdict, we affirm.

On appeal from the entry of judgment in a bench trial, we review the trial court’s factual findings under the clearly erroneous standard and will not disturb those findings if there is any evidence to support them. See Mail Advert. Sys., Inc. v. Shroka, 249 Ga. App. 484, 484 (548 SE2d 461) (2001). Additionally, we view the evidence in the light most favorable to the trial court’s verdict. Cox Interior, Inc. v. Bayland Properties, LLC, 293 Ga. App. 612, 613 (1) (667 SE2d 452) (2008).

So viewed, the evidence shows that around 2011 or 2012, Creas-man and Wilkinson formed Natural Products to produce and sell tomatoes grown year-round inside greenhouses. Creasman and Wilkinson received assistance from the U.S. Small Business Administration and presented their business plan to potential investors. They also engaged in conversations with local representatives of Ingles Markets, Inc. for the purchase of Natural Products’ produce.

Creasman and Wilkinson subsequently approached Sims about investing in Natural Products and presented him with the company’s business plan. Wilkinson and Creasman advised Sims that Natural Products needed a total of $1.5 million to start operations and asked him for $150,000 to help fund the company for a few months until they secured additional investments, which they believed would happen based on conversations with a potential investor in North Carolina. Sims agreed to give $150,000 to Natural Products in exchange for the company’s promise to pay him $525,000 in semi-annual installments beginning in February 2013. The parties executed a promissory note in February 2012 to reflect this agreement, and the promissory note also provided that the funds were to be used only for the purpose of constructing greenhouses in Barrow County.

Wilkinson and Creasman, who both signed the promissory note on behalf of Natural Products, deposited the funds into the company’s bank account. Soon thereafter, Wilkinson and Creasman issued checks from the bank account to pay themselves $600 each per week and other amounts periodically as salary. Natural Products paid Sims $50,000 in February 2013, but failed to make any other payments and failed to construct any greenhouses with the money Sims provided.

Sims filed this lawsuit, alleging that the defendants defrauded him because they knew they would not use his investment for the building of greenhouses, as they had promised Sims, and that their actions also violated the GSA. At the bench trial, Wilkinson testified that he and Creasman intended to pay Sims all that Sims was owed once they received additional funding to get the business operational. Creasman testified that he had a small operational greenhouse and believed that an investment group would provide sufficient funding to expand the operations. Following the trial, the trial court found in favor of Creasman on the fraud and GSAclaims and entered a default judgment against Natural Products on the promissory note for its failure to file an answer.

1. Sims argues that the trial court erred in finding that Creasman’s actions did not rise to the level of fraud because Creasman did not intend to honor the terms of the promissory note at the time he signed it on behalf of Natural Products. In support of his argument, Sims relies on evidence showing that subsequent to the execution of the promissory note, Creasman used the funds from Sims’ loan to pay himself a salary.

In most circumstances, actionable fraud cannot be predicated on a promise contained in a contract because the promise is to perform some act in the future, and normally, fraud cannot be predicated on statements which are in the nature of promises as to future events. However, an exception to the general rule exists where a promise as to future events is made with a present intent not to perform or where the promisor knows that the future event will not take place. Additionally, if the particular statement at issue in the contract was not a future promise but a present misrepresentation of fact, it is sufficient to support a claim for fraud.

BTL COM Ltd. v. Vachon, 278 Ga. App. 256, 258 (628 SE2d 690) (2006) (citations and punctuation omitted). “Fraudulent intent at the time of contracting can [also] be inferred based on subsequent conduct of the defendant that is unusual, suspicious, or inconsistent with what would be expected from a contracting party who had been acting in good faith.” Id. at 261 (1) (citation omitted). Actionable fraud, however, does not “result from a mere failure to perform promises made. Otherwise any breach of a contract would amount to fraud.” J. Kinson Cook of Ga., Inc. v. Heery/Mitchell, 284 Ga. App. 552, 558 (d) (644 SE2d 440) (2007) (citation omitted). “[T]he question of intent to deceive or not to perform is in all cases the dominion of the fact-finder; on appeal, the presumption lies in favor of the verdict where there is any evidence to support it.” Gunnin v. Dement, 205 Ga. App. 631, 634 (2) (422 SE2d 893) (1992) (citations and punctuation omitted).

Viewing the trial evidence in the light most favorable to the trial court’s verdict, the evidence supports the trial court’s finding that Creasman did not commit fraud. Upon approaching Sims to request funding, Wilkinson and Creasman advised Sims that the $150,000 they sought would fund Natural Products for a few months until they secured a total of $1.5 million to get the business fully operational. Although Creasman and Wilkinson used the funds from Sims’ loan to pay themselves weekly salaries of $600 each, rather than construct greenhouses as provided in the promissory note, these payments are not, as a matter of law, a business practice that is unusual, suspicious, or inconsistent with what would be expected from a contracting party who had been acting in good faith. As the factfinder in this case, the trial court was authorized to reject Sims’ claim that the payment of salaries subsequent to the execution of the promissory note showed that Creasman lacked the present intent to comply with the agreement at the time the agreement was executed. See Pacrim Assocs. v. Turner Home Entm’t, Inc., 235 Ga. App. 761, 767 (3) (510 SE2d 52) (1998) (trial court properly granted summary judgment to defendant where no evidence showed defendant had a present intent not to comply with its promise to retain plaintiff as an exclusive licensing agent for one year); Futch v. Lowndes Cty., 297 Ga. App. 308, 311 (1) (676 SE2d 892) (2009) (affirming grant of summary judgment to county where no evidence showed that county’s promise to re-grade ditch was made with present intent not to perform). Therefore, the trial court was authorized to conclude that Creasman did not commit fraud.

2. Sims next argues that the trial court erred in concluding that Creasman did not violate OCGA § 10-5-50, which provides:

It is unlawful for a person, in connection with the offer, sale, or purchase of a security, directly or indirectly: (1) To employ a device, scheme, or artifice to defraud; (2) To make an untrue statement of a material fact or to omit to state a material fact necessary in order to make the statement made, in the light of the circumstances under which it is made, not misleading; or (3) To engage in an act, practice, or course of business that operates or would operate as a fraud or deceit upon another person.

OCGA § 10-5-50 requires a showing of intent to defraud. See Branan v. State, 285 Ga. App. 717, 720 (2) (a) (647 SE2d 606) (2007) (decided under previous Code section).

In support of Sims’ argument that Creasman intended to defraud him in violation of OCGA § 10-5-50, Sims generally relies on the evidence regarding Creasman’s payments of weekly salaries. We have already concluded above in Division 1, however, that the trial court was authorized to conclude that this evidence did not establish an intent to defraud.

Sims also argues that the promissory note itself was fraudulent because it omitted the fact that Natural Products needed $1.5 million before it would construct a greenhouse. Even though the promissory note makes no mention of this requirement, Wilkinson testified that he and Creasman advised Sims that Natural Products needed $1.5 million to start the business, and Sims’ loan or investment would be used to fund the company for a few months until they secured additional funding. Wilkinson testified that he and Creasman intended to pay Sims all that he was owed once they received additional funding to get the business operational. The trial court, as the factfinder in this case, was authorized to accept Wilkinson’s testimony that Sims was aware that additional funding was required before Natural Products was operational. See Hayes v. Alexander, 264 Ga. App. 815, 817 (592 SE2d 465) (2003). Because there is evidence supporting the trial court’s finding that Creasman did not intend to defraud Sims, we must affirm.

Decided May 2, 2016.

Don M. Jones, for appellant.

Judgment affirmed.

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

       Although Sims also raises claims against Wilkinson on appeal, he conceded below that he was barred from asserting these claims due to Wilkinson’s bankruptcy discharge . Therefore, we will consider only those claims against Creasman.

       Because Wilkinson and Creasman intended to use Sims’ funds in conjunction with additional investments, and promised a $375,000 return on his $150,000 “loan,” the promissory note met the definition of a security as provided under OCGA § 10-5-2. See Rasch v. State, 260 Ga. App. 379, 384-85 (1) (579 SE2d 817) (2003) (a promissory note can be a security instrument if it is “(1) an investment in a common venture; (2) premised on a reasonable expectation of profits; and (3) tobe derived from the entrepreneurial or managerial efforts of others”) (citations and punctuation omitted).


text:
    A16A0369.
    SPACE COAST CREDIT UNION v. GROCE.
    (785 SE2d 663)
   Peterson, Judge.

Space Coast Credit Union (“Space Coast”) filed a lawsuit against Robert Steve Groce to reinstate a first priority deed to secure debt. When Groce did not file an answer, Space Coast moved for summary judgment. The trial court denied the motion, ruling that Groce had not been served properly Space Coast brought this interlocutory appeal, arguing that the trial court had erred in concluding that (1) Groce was mentally impaired and unable to accept service when it was attempted, and (2) a process server is required to interact and speak with a defendant at the time of service. Because the trial court did not abuse its discretion in finding that service was not proper when the process server merely left the papers at Groce’s bedside as he lay semi-conscious (at best), we affirm.

Groce failed to file a responsive brief, and so he is deemed to admit the statement of facts as set out by Space Coast to the extent supported by the record. See Green v. Waddleton, 288 Ga. App. 369, 369 n.1 (654 SE2d 204) (2007). So viewed, Groce refinanced the first priority loan secured by his home with the same lender that he had previously used, Eastern Financial Florida Credit Union (“EFFCU”). Shortly after the closing, EFFCU erroneously executed and filed a cancellation of the first priority deed, even though the deed had not been satisfied in full. Years later, EFFCU’s successor company, Space Coast, filed this lawsuit, seeking to reinstate the deed.

A week after the complaint was filed, a process server attempted to serve Groce at the property that secured the loan. The process server averred that he spoke to a woman there who claimed to be Groce’s daughter. She said that her father did not live there but would not share his whereabouts. A little more than a week later, the same process server attempted to serve Groce at a nearby nursing home. In his affidavit, the process server said that Groce, who appeared to be in his late 60s or early 70s, “was sleeping in his bed and in and out of consciousness” and was “unable to take the papers.” The process server said that he put the papers on a table next to the bed.

Groce filed no answer to the suit, and Space Coast filed an unopposed motion for summary judgment, arguing that because the underlying indebtedness on the loan had not been satisfied, the cancellation did not re-convey title to Groce. Space Coast sought a declaratory judgment that the deed remains the first priority deed and that the cancellation was null and void. Having taken testimony from the process server at a hearing, the trial court denied the summary judgment motion on the basis that Groce was not properly served and therefore the court lacked personal jurisdiction over him. Finding that the affidavit of service provided evidence that Groce was “mentally impaired” at the time of service and the process server’s live testimony at the hearing was insufficient to overcome this evidence, the trial court found that Groce was incapable of accepting the service documents when they were left at his bedside. The trial court found that the process server “was aware of the Defendant’s condition” and “could not have reasonably believed that the Defendant was aware service was being attempted.” The trial court issued a certificate for immediate review, and we granted Space Coast’s application for interlocutory appeal.

“Absent a showing of an abuse of discretion, a trial court’s finding of insufficient service of process must be affirmed.” Franchell v. Clark, 241 Ga. App. 128, 131 (3) (524 SE2d 512) (1999). “The trial court as factfinder must decide whether the evidence overcomes the facts reflected in a return of service, and we will uphold that finding if it is supported by any evidence.” Holmes & Co. of Orlando v. Carlisle, 289 Ga. App. 619, 620 (1) (658 SE2d 185) (2008).

1. Space Coast argues that the trial court erred by finding that Groce was mentally impaired at the time of service. It is difficult to evaluate this factual finding, because no transcript was made of the hearing. Moreover, it is unclear exactly what role this finding played in the trial court’s analysis. The trial court referenced OCGA § 9-11-4 (e)(4), which provides that a person “who has been judicially declared to be of unsound mind or incapable of conducting his or her own affairs and for whom a guardian has been appointed” must be served via their guardian or guardian ad litem. But the trial court also recognized that there is no evidence in this case that Groce has been declared legally incompetent, and the court did not say explicitly that the procedure outlined in OCGA § 9-ll-4(e)(4) must be followed here.

If the trial court did measure Space Coast’s service attempts against the rule of OCGA § 9-11-4(e)(4), the trial court erred. Unless and until a court determines that a person is civilly incompetent or in need of a guardian, the requirements for serving someone who is incompetent do not apply, and any lawful means of service will confer personal jurisdiction over him. Trammel v. Bradberry, 256 Ga. App. 412, 415 (1) (568 SE2d 715) (2002) (physical precedent only) (construing substantially identical prior version of statutory provision) (citing Sellers v. Bell, 151 Ga. App. 440, 441 (1) (260 SE2d 538) (1979)). The trial court here sought to distinguish Sellers — in which we found that personal service was proper when the defendant was not declared incompetent until after he was served with papers — on the basis that in that case there was no evidence that the plaintiff was aware of the defendant’s mental condition. However, an examination of Sellers reveals that the reference to the plaintiff’s lack of knowledge is merely dicta. See Sellers, 151 Ga. App. at 441 (1) (holding service sufficient because “no such [judicial] determination [of incompetency] had been made of the defendant until several months after the plaintiff had served the defendant with her complaint and summons”). The statute contains no exception to its condition precedent of a judicial determination of incompetence. Sellers provides no authority for implying an exception based on a process server’s subjective knowledge of a defendant’s mental condition. We decline to imply such an exception ourselves. The question for us, then, is whether it was an abuse of discretion to find that Space Coast did not properly serve Groce under the usual rules for service of process.

2. Space Coast argues that the trial court erred by finding that Groce was “incapable of accepting the service documents” and that the process was inadequate because the process server did not speak to or otherwise interact with Groce to alert him to the fact that service was being attempted. OCGA § 9-11-4(e)(7) provides that service on an individual defendant generally may be made by “delivering a copy of the summons attached to a copy of the complaint ... to the defendant personally.” We have found no Georgia authority, and Space Coast has cited none, addressing directly whether leaving papers next to a person who is asleep or is otherwise unaware of the delivery amounts to “delivering” a summons “personally” as those terms are used in OCGA § 9-11-4(e)(7).

A review of relevant case law and the text of the statute as a whole convinces us that the answer to that question is no. In order for merely leaving papers where the defendant lives or works to constitute valid service under OCGA § 9-11-4(e), certain requirements must be met. For valid service to be effectuated by leaving papers at the door of a defendant’s home, for instance, the sum involved in the case must be less than $200, reasonable efforts to obtain “personal service” must have been made first, the papers must be placed in a waterproof packet, andacopy also must be mailed. See OCGA § 9-11-4 (e)(6). In order to serve an individual defendant by delivering the papers to the defendant’s workplace, they cannot be left with just anyone, but only with “an agent authorized by appointment or by law to receive service of process.” OCGA § 9-11-4(e)(7); see also Ameribank v. Quattlebaum, 220 Ga. App. 345, 346 (1) (469 SE2d 462) (1996) (debtor not “personally served” when deputy gave papers to a receptionist and debtor found them on his desk). These separate provisions, with their additional safeguards, suggest that serving a defendant “personally” means something more than merely leaving papers in the vicinity of an unaware defendant.

In Carroll v. Celanese Corp. of America, 205 Ga. 493, 493 (2) (54 SE2d 221) (1949), cited by Space Coast, our Supreme Court held that personal service would be valid if a deputy sheriff had dropped the papers at the defendant’s feet. However, that ruling was premised on the assumption that the deputy and defendant had a conversation and the defendant had refused to take the papers. The defendant was aware that service was being attempted and thus was on notice of the lawsuit against him, and the Court simply refused to reward the defendant’s knowing refusal. Id.

This case presents a different, set of circumstances: an elderly, dozing defendant unaware of the process server’s efforts, and the distinction has constitutional implications. In order to comply with state and federal concepts of due process, the method of service must be “reasonably calculated to give [a defendant] actual notice of the proceedings and an opportunity to be heard.” Melton v. Johnson, 242 Ga. 400, 403 (249 SE2d 82) (1978) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (61 S. Ct. 339, 85 LE 278) (1940)); see also Benton v. Modern Finance & Inv. Co., 244 Ga. 533, 534 (261 SE2d 359) (1979) (method of service may be constitutionally defended on ground it is “reasonably certain to inform those affected or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes”) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (70 S. Ct. 652, 94 LE 865) (1949) (punctuation omitted)). Our Supreme Court previously declared unconstitutional as violative of due process a statute that authorized service by merely leaving a copy at the defendant’s most notorious place of abode. Benton, 244 Ga. at 535. The Court based its decision on concerns that such a means of service “is not reasonably calculated to apprise [the defendant] of the pendency of an action against him.” Id. The Court suggested that, with that method of service, the papers may not reach the defendant promptly, as he may be absent from the home for some period of time or in the process of moving, or the papers might be destroyed by bad weather or removed by someone else. Id.

Although the mode of service employed is different, the concern is the same. Groce might not have noticed the papers for some period of time, if ever. A nurse or housekeeper might have thrown the papers away Moreover, we may reverse the trial court’s decision in this case only if it amounted to an abuse of discretion. See Franchell, 241 Ga. App. at 131 (3). Although Space Coast may be correct that there is no requirement that a process server always must engage in dialogue about service with a defendant and ensure that the defendant understands and acknowledges service, it was not an abuse of discretion for the trial court to find, under the facts of this case, that some communication was required to ensure that the (at best) semiconscious defendant had fair notice of the lawsuit.

Space Coast argues that the trial court’s ruling means that service on Groce may not be possible, contending that the order means that Space Coast will need to pursue a probate court’s determination as to Groce’s competency and, if he is adjudicated incompetent, seek the appointment of a guardian for him. However, we do not think that the rule applied here necessarily would leave a plaintiff attempting to serve a defendant such as Groce without other options. A process server encountering an incapacitated defendant might attempt to rouse the defendant, or simply return another time. Alternatively, the process server might leave papers “at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.” OCGA § 9-11-4(e)(7). And, in any event, if the current statute does not provide practical options for a plaintiff in Space Coast’s shoes, the proper recipient for such a complaint is the General Assembly Unlike this Court, the General Assembly is vested with authority to amend the statute. We, however, can only apply it.

Decided May 2, 2016.

Ellis Painter Ratterree & Adams, Kimberly C. Harris, for appellant.

Judgment affirmed.

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

       The record indicates that this hearing was held as part of a “no service” calendar prior to the filing of the motion for summary judgment. However, the hearing was not transcribed, and the trial court did not issue a written order on the issues raised by the attempted service until after that motion was filed.


text:
    A16A0531.
    MORGAN v. THE STATE.
    (785 SE2d 667)
   Peterson, Judge.

Randy J. Morgan, Jr., convicted of one count of child molestation, appeals from the denial of his motion for a new trial. Morgan argues that the trial court erred by excluding the victim’s prior false claim of molestation against her stepfather and by prohibiting Morgan from examining witnesses about the side effects of the victim’s medication. We affirm because the victim’s prior complaint against her stepfather was not determined to be false, and because Morgan failed to secure the necessary witness(es) to provide the desired testimony.

“On appeal, the evidence must be viewed in the light most favorable to support the verdict, and the appellant no longer enjoys a presumption of innocence.” Culver v. State, 230 Ga.App. 224, 224 (496 SE2d 292) (1998) (citing Williams v. State, 228 Ga. App. 698, 699 (1) (492 SE2d 708) (1997)). So viewed, the evidence shows that Morgan, who was married to the victim’s cousin, brought his young son with him to pick the victim up at her home one evening so that she could spend the night. During that car ride, Morgan gave the victim, who was 14 years old at the time, some alcohol to drink in the car. When they arrived at Morgan’s house, Morgan put his son to bed; Morgan’s wife was working late. Morgan and the victim sat on the couch and watched a movie together, and the victim drank an alcoholic drink Morgan made her. At one point, Morgan got up to go check on his son. When he returned, he sat on the victim’s legs and buttocks, unclasped and reclasped her bra, and rubbed her back. Morgan also encouraged the victim to drink more, which she did, causing her to feel sleepy. Morgan then pulled down her pants and slid his penis between her legs against her genitals. When he finished, the victim felt some wetness on her. The next day when the victim returned home, she told her mother of the incident. The victim’s mother brought her to the hospital, where vaginal swabs revealed a partial DNA profile that nonconclusively matched Morgan, and a physical examination revealed some redness and swelling to the victim’s genitals.

Prior to the trial, Morgan moved to admit evidence that the victim had previously made a molestation allegation against her stepfather. Morgan argued that the allegation constituted a prior false report of a sexual crime and thus should be admissible. The State argued that the investigation showed the alleged activity had actually occurred but was simply not prosecuted because, as a matter of law, it was determined not to constitute molestation. The trial court held a hearing at which the investigator of that previous incident testified that the victim had made a report to her school counselor. Specifically, the victim stated that her stepfather had put his hand down the back of her pants in an effort to retrieve a cigarette he had dropped, and that he would often touch or rub his private area in front of her. The investigator also testified that the victim’s mother had witnessed and substantiated the victim’s allegations against her stepfather. During cross-examination, the investigator further testified that while his investigation revealed the underlying facts to be true, the facts did not constitute molestation. The trial court excluded the evidence, finding that although the alleged activity may not have been legally sufficient to support a charge for child molestation, there was not a reasonable probability that the accusation had actually been false.

After opening statements, the State made a motion in limine to exclude reference to prescription drugs the victim was taking, arguing lack of relevance and probative value. Morgan responded that, although he did not expect to present testimony of an expert witness about the side effects of the medications, he intended to cross-examine the State’s witnesses about whether one of the drugs the victim was taking could cause abnormal hormone changes and vaginal redness; in particular, he intended to cross-examine a doctor on the State’s witness list. The prosecutor responded that he did not intend to call the doctor as a witness. Absent a witness who had the requisite training, background, and expertise to render an opinion on the topic, the trial court indicated it would grant the State’s motion in limine.

We review a trial court’s decision to admit or exclude evidence for abuse of discretion. Gautreaux v. State, 314 Ga. App. 103, 106(2) (722 SE2d 915) (2012).

1. Morgan argues that the trial court erred by excluding the victim’s false claim of molestation against her stepfather. We disagree.

The Rape Shield Statute, codified at OCGA § 24-4-412, provides that in prosecutions for child molestation “evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness[.]” OCGA § 24-4-412. But such evidence may be admissible to show “the victim’s lack of credibility where the victim has made prior false allegations of child molestation.” Berry v. State, 235 Ga. App. 35, 37 (2) (508 SE2d 435) (1998) (citation omitted). The reason for this exception to the Rape Shield Statute is that the “evidence does not involve the victim’s past sexual conduct but rather the victim’s propensity to make false statements regarding sexual misconduct.” Smith v. State, 259 Ga. 135, 137 (1) (377 SE2d 158) (1989). However, ‘Tefore such evidence can be admitted, the trial court must make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists.” Id. (citation and punctuation omitted).

Here, the trial court heard argument from the parties about whether the victim’s prior allegations against her stepfather were false and took testimony from the investigator who spoke with the victim’s mother. The trial court determined that the facts the victim had alleged were indeed true, as they were verified by an independent witness (the victim’s mother), and therefore excludedthe evidence. At its core, Morgan’s argument is that the victim lied because she attached an incorrect legal term to the true facts she alleged. But there is no evidence in the record that she actually applied the label of “molestation” to these allegations. Rather, during cross-examination, Morgan’s trial counsel attempted to put this precise characterization into the investigator’s mouth. Even if the victim had used the term “molestation” to describe the allegations involving her stepfather, a victim’s imprecise use of legal terminology does not render truthful allegations false. Therefore, the trial court did not abuse its discretion by excluding the testimony See, e.g., Williams v. State, 266 Ga. App. 578, 581 (1) (597 SE2d 621) (2004).

2. Morgan next argues that the trial court erred and denied him his constitutional right to confrontation by excluding any reference to the side effects of the victim’s medication. Again, we disagree.

The trial court heard argument on the State’s motion in limine to exclude reference to the victim’s use of certain psychiatric medication. Morgan argued that he intended to cross-examine a doctor on the State’s witness list about the side effects of the drug, and specifically whether the drug could have caused the vaginal redness observed on the victim. The State indicated that the only healthcare professionals that were going to be called at trial were a sexual assault nurse who examined the victim and a state crime lab witness who could testify about the DNA. The trial court did not completely bar Morgan’s desired testimony, but stated that he would need a witness qualified to render an opinion. Morgan did not attempt to qualify the sexual assault nurse as such an expert during questioning and did not introduce any other witnesses for this purpose.

Decided May 2, 2016

Brandon S. Clark, for appellant.

Tom Durden, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

“As we have long held, a party will not be heard to complain of error induced by his own conduct, nor to complain of errors expressly invited by him.” Affatato v. Considine, 305 Ga. App. 755, 758 (1) (700 SE2d 717) (2010) (citation and punctuation omitted). Here, Morgan failed to secure a witness qualified to render the desired testimony And while he argues, in hindsight and on appeal, that the sexual assault nurse would have been qualified to give testimony on the side effects of the medication, he made no attempt to demonstrate her qualifications at trial. He cannot now complain of an error of his own making.

Judgment affirmed.

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

       The DNA profile could match one out of every 100 Caucasians and one out of every 900 African-Americans. Morgan is Caucasian. No semen was collected from the victim’s underwear.

       We also note that Morgan argues he should have been able to cross-examine the victim as to the side effects of her medication. This argument was not made at trial or addressed by the trial court, and therefore we decline to entertain it here. See Kn ight v. State, 311 Ga. App. 367, 368 (2) (715 SE2d 771) (2011).


author: PHIPPS, Presiding Judge.

text:
    A16A0685.
    KING v. THE STATE.
    (785 SE2d 670)
   PHIPPS, Presiding Judge.

Following a jury trial, Terrance L. King was convicted of statutory rape, aggravated child molestation, and enticing a child for indecent purposes. King moved for a new trial, arguing that his trial counsel had rendered ineffective assistance. After a hearing at which counsel testified, the trial judge denied the motion. King appeals. For the following reasons, we affirm.

Viewed favorably to the verdict, the evidence shows that on November 13, 2012, when M. P. was 15 years old, King picked her up around 6:00 a.m. on a school day and drove her to a hotel in Perry, Georgia, where he had already rented a room. M. P testified that she and King, who was 32 years old and the pastor of a church M. P attended, had a “[b]oyfriend/girlfriend type of relationship.” Once at the hotel, M. P performed oral sex on King, and the two had vaginal intercourse. At some point during the day, King returned M. P to her home.

King alleges that he received ineffective assistance of counsel at trial in that counsel failed to investigate the case properly. To prevail on this claim, King must show that trial counsel’s performance was deficient and that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been different. This showing requires King to overcome the strong presumption that counsel’s performance fell within the wide range of reasonable professional conduct. “[W]e accept the trial court’s factual findings and credibility determinations [regarding the effectiveness of trial counsel] unless clearly erroneous, but we independently apply the legal principles to the facts.”

1. King first argues that counsel was ineffective in failing to obtain surveillance video of the hotel, which he asserts would have shown that the victim was not with King on the date in question.

At the hearing on the motion for new trial, King’s trial counsel testified that he was the chief public defender in Houston County, and that he had practiced law since 1993, including more than ten years with the public defender’s office. Trial counsel was appointed on February 7, 2013, approximately three months after the events alleged in the indictment and ten months before trial.

King’s appellate counsel questioned trial counsel as to what efforts he made to obtain video evidence from the hotel. Trial counsel responded that his assistant made “a lot” of phone calls to the hotel, and that one of his investigators had visited the hotel in an attempt to obtain such a video.

Trial counsel stated further: “[T]hey did not have any video. I’m trying to remember if they had some and they had taped over them. I wasn’t able to obtain any video.” Trial counsel estimated that he initially requested a video in July 2013 because “we started . . . looking into trying to nail down particular dates that summer.” According to trial counsel, part of the delay occurred because King was trying to provide his own records.

King contends that trial counsel was deficient in waiting at least four months after being appointed and six months from the date in question before attempting to obtain hotel video surveillance. King concludes that “[f]ailure to obtain these videos gave [King] no way to present evidence showing he was alone when he checked in on November 13, 2013 [sic].”

In order to prevail on this claim, King “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Trial counsel had promptly filed discovery motions in February 2013, requesting that the state produce any “[p]hotographs and video/audio recordings,” as well as all Brady and Giglio materials. In July 2013, trial counsel sent an investigator to the hotel to inquire about and request video surveillance footage.

Even assuming that video surveillance evidence existed in the first place, King offered no evidence that it still existed when trial counsel was appointed in February 2013, three months after the date in question. King argues that, due to limits on storage space, “this is evidence which will disappear soon after the incident unless action is taken to preserve the footage.” However, King presented no evidence regarding the video storage space of this hotel (assuming the hotel had video surveillance) or the standard in the industry We recognize that “counsel must prioritize his or her investigation and preparation for trial”; therefore, we cannot conclude that waiting several months before seeking video surveillance evidence directly from the hotel was deficient performance.

Moreover, King has not shown prejudice. There was no evidence that the hotel had any video surveillance, much less whether the surveillance covered all entrances to the hotel. Thus, assuming trial counsel had been successful in obtaining video surveillance footage showing King arriving at the hotel alone, this would not necessarily contradict M. P.’s testimony. This enumeration thus presents no basis for reversal.

2. King further asserts that counsel should have obtained cell phone records that would have shown he was on a call with another woman for several hours on the morning of November 13, 2012, when the sexual activity with M. P. allegedly occurred. King concedes that the phone records would not foreclose the possibility of the alleged sexual activity taking place but argues that, with this evidence, “a jury may have found the situation implausible.”

“The test regarding effective assistance of counsel is to be not errorless counsel, and not counsel judged ineffective by hindsight, but counsel rendering reasonably effective assistance.” At the hearing on the motion for new trial, King’s trial counsel conceded that both King and the woman told him they were on the phone at the time of the incident and stated that he “would have wanted phone records.”

Rather than exploring whether King and the woman were on the phone, counsel focused on trying to determine whether the woman was at the hotel with King on the day in question. Trial counsel testified:

I subpoenaed [the woman] for trial. I didn’t call her because she wasn’t going to be able to nail down a date. She could testify that she met with [King] at the hotel and they had sex, but she couldn’t testify about when that occurred and he stayed at the [hotel] on a number of dates, so the only thing that would have been bringing out is that he is a pastor .. . committing fornication. I don’t think a jury would have . . . liked that, so it would have damaged his credibility without adding anything to the defense, that’s why I didn’t call her.

Having decided not to call the woman to the stand, counsel’s strategy at trial was to try to show that King had already checked out of the hotel and could not have been there with M. P. on the morning of November 13, 2012.

Decided May 2, 2016.

Daniell Law Firm, David G. Daniell, for appellant.

George H. Hartwig III, District Attorney, Daniel P. Bibler, Assistant District Attorney, for appellee.

It is not clear from the record why trial counsel did not subpoena the phone records that King now complains should have been obtained. However, even assuming that it was deficient performance, King has not shown prejudice. “Absent a proffer, defendant cannot meet his burden of making an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case.”

At the hearing on his motion for new trial, King did not proffer the phone records, offer any evidence of their content, or present the testimony of a witness who would have been able to authenticate such records. King has not shown a reasonable probability that the trial would have ended differently had counsel subpoenaed the phone records, and the trial court thus did not err in denying King’s claim of ineffective assistance of counsel.

Judgment affirmed.

Dillard and Peterson, JJ., concur.

       See Weeks v. State, 316 Ga. App. 448, 449 (729 SE2d 570) (2012).

        Hall v. State, 292 Ga. App. 544, 551 (6) (664 SE2d 882) (2008).

       Id.

        Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000) (footnote omitted).

         Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009) (quoting Strickland v. Washington, 466 U. S. 668, 694 (104 SCt 2052, 80 LE2d 674) (1984)) (citation and punctuation omitted).

        Brady v. Maryland, 373 U. S. 83, 87 (3) (83 SCt 1194, 10 LE2d 215) (1963) (“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”).

        Giglio v. United States, 405 U. S. 150, 154 (92 SCt 763, 31 LE2d 104) (1972) (extending Brady, supra, to evidence relevant to credibility of prosecution witness).

        Chapel v. State, 270 Ga. 151, 159 (510 SE2d 802) (1998).

       See id. (“[W]e cannot conclude that delaying some interviews [of alibi witnesses until two years after the murder] falls outside the wide range of reasonable professional assistance.”).

       See Eason v. State, 331 Ga. App. 59, 66 (4) (a) (769 SE2d 772) (2015) (conclusory statement that trial counsel should have conducted witness interviews and background investigations of witnesses and subpoenaed any videotapes from the crime scene was “not sufficient to support a claim that without counsel’s alleged shortcomings, there is a reasonable probability that the outcome of trial would have been different”) (emphasis in original).

        Smith v. State, 309 Ga. App. 241, 247 (3) (b) (709 SE2d 823) (2011) (citation and punctuation omitted).

        Hortman v. State, 293 Ga. App. 803, 807 (e) (670 SE2d 99) (2008).

        Curtis v. State, 330 Ga. App. 839, 842-843 (1) (b) (769 SE2d 580) (2015).


author: McMlLLIAN, Judge.

text:
    A16A0390.
    BROWN v. THE STATE.
    (785 SE2d 674)
   McMlLLIAN, Judge.

Johnny Jerome Brown was convicted following a bench trial of felony and misdemeanor theft by taking. Brown filed a motion for new trial asserting the general grounds, and after he was appointed new appellate counsel, amended his motion to also raise a challenge to the sufficiency of the evidence. The trial court denied Brown’s motion following a hearing, and Brown filed a notice of appeal to this Court. As more fully set forth below, we now affirm.

1. Brown first contends that his waiver of jury trial was not knowingly and intelligently made and that the trial court erred by refusing to allow him to revoke his waiver. The record shows that following a hearing during which Brown was placed under oath and examined by the trial court concerning his desire to waive his right to a jury trial, Brown executed a “Consent Order Granting Waiver of Jury Trial,” which set out that Brown had waived his right to be tried by a jury in open court after the trial court had conducted a “thorough inquiry” into his request. However, on the morning of trial, Brown’s counsel informed the trial court that Brown had indicated to her that he wished to revoke his jury trial waiver, and Brown then informed the trial court that he signed the jury trial waiver because his previous counsel had assured him that the State was only seeking restitution and that it was in his best interest to sign the waiver so they could “waive having people in a jury.” Brown’s current trial attorney stated that she did not have any personal knowledge of the discussions between Brown and his previous attorney, but that she agreed with the advice that it would be in Brown’s best interests to waive his right to a jury trial. Noting that the case was four years old and that all the witnesses were present, the trial court found that it would thwart the work of the court to allow Brown to withdraw his waiver of jury trial and denied Brown’s motion.

Following trial, Brown filed a motion for new trial, as amended, but did not raise any issue concerning whether his jury trial waiver had been knowingly and intelligently made and never raised any contention concerning the trial court’s denial of his request to withdraw his waiver. During the hearing on the motion, Brown’s post-trial counsel, who also represents Brown on appeal, informed the trial court that he had “nothing in need of hearing. I have no facts,” and that he wanted to proceed with an appeal based on the contention raised in his amended motion that the evidence was insufficient. The State’s attorney clarified for the record that the only issue preserved for appeal was the issue of sufficiency of the evidence. In light of these circumstances, and considering that the issue of waiver could not be further developed without an evidentiary hearing at which Brown’s former counsel could testify, we agree with the State that Brown has waived the right to raise this issue on appeal. See Lloyd v. State, 259 Ga. App. 636, 641 (4) (577 SE2d 854) (2003) (issue of voluntariness waived when raised for first time on appeal); see generally Allison v. State, 288 Ga. App. 482 (654 SE2d 628) (2007) (extrinsic evidence concerning waiver of jury trial maybe presented at hearing on motion for new trial).

Moreover, we note that the record reflects that Brown’s waiver was valid. The trial court engaged in an extensive colloquy with Brown prior to the execution of his waiver and informed Brown of his rights and the effect of the waiver of those rights. Contrary to Brown’s statement that his then counsel had assured him the State was seeking only restitution, the trial court informed Brown of the possible punishments he was facing, and Brown acknowledged his understanding of those possible punishments. Brown stated clearly that he understood that he was waiving the right to have his case heard by a jury and that a judge would try his case, and that he also understood that there was a possibility he could be sentenced to a maximum of 12 years if he were convicted, after which he reaffirmed he wanted to waive a jury trial. The trial court also asked Brown if he had been promised anything, threatened or coerced into waiving his rights, and Brown responded “No, sir.” Brown signed a consent waiver form following the hearing, in which he reaffirmed his knowledge of the rights he was waiving and that the judge would impose sentence on him if he was found guilty Accordingly, the record demonstrates that Brown voluntarily, knowingly, and intelligently waived his right to a jury trial.

Likewise, there is no merit to Brown’s contention that the trial court erred by denying his request to revoke his waiver on the morning of the scheduled bench trial. A defendant may revoke a prior waiver of trial by jury as long as the defendant exercises his right to revoke the waiver in a timely manner and “in such season as not substantially to delay or impede the cause of justice.” Cain v. State, 102 Ga. 610, 612 (29 SE 426) (1897).

As the trial court noted in denying the motion, Brown’s case had been pending for four years by the time of trial, and Brown had waited until the morning of trial when witnesses were present to seek to revoke his waiver. Additionally, the record reflects that Brown’s bond had been revoked and bench warrants issued on four occasions between the time Brown was indicted and his case was called for trial. Although it appears that on two of those occasions the bench warrants were dismissed when valid reasons for Brown’s failure to appear were revealed, the other two remain unexplained. In view of Brown’s repeated failures to appear in court, the timing of the requested revocation, and the fact that his purported reasons for seeking to revoke his waiver, including that he had not understood that a judge, rather than a jury would be deciding his case, are at odds with his acknowledgments at the waiver hearing and on the waiver consent form, the trial court was authorized to deny his request to revoke his waiver and proceed with a bench trial. E.g., Coursey v. State, 281 Ga. App. 494, 495 (1) (636 SE2d 669) (2006); Bennett v. State, 262 Ga. App. 800, 800-01 (586 SE2d 704) (2003).

2. Brown also argues the evidence was insufficient to support his conviction for theft by taking because the State failed to prove the value of the motor vehicle parts taken exceeded $100.

Brown was charged in Count 1 of the indictment with taking four car engines with a value exceeding $100. At the time of the theft, the trial court had the discretion under OCGA § 16-8-12 (a) (5) (A) to impose a felony sentence against a person convicted of the theft of a motor vehicle or motor vehicle parts or components which exceeded $100 in value.

The proper measure of value “is the fair cash market value either at the time and place of the theft or at any time during the receipt or concealment of the property.” (Citation and punctuation omitted.) Porter v. State, 308 Ga. App. 121, 123 (2) (706 SE2d 620) (2011). The State sought to prove the value of the car engines through the testimony of Donald P. Letteer, Jr., who witnessed Brown take the engines from the repair business he operated with his mother. Letteer testified that his family had been in the automobile parts business since 1969, that he started working in the business around 1973, and that he had a great deal of experience in dealing with automobile parts. He identified the parts stolen as vintage Volkswagen engines manufactured in the 1960s and said they were “irreplaceable” and valuable in the car restoration business. He testified it would cost $2,500 or more for him to replace the engines and based his opinion on Internet research, speaking with other people, his own knowledge about the value of the parts from his long experience in the automobile parts industry, and his knowledge that the parts were now unobtainable. This evidence was sufficient to authorize the trial court to exercise its discretion to sentence Brown to felony theft by taking.

Decided May 3, 2016.

David J. Walker, for appellant.

Dennis C. Sanders, District Attorney, Kevin R. Majeska, Dur-wood R. Davis, Assistant District Attorneys, for appellee.

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

       We note that the notice of appeal was filed on Brown’s behalf by his appellate counsel. During the pendency of this appeal, Brown also filed a separate pro se enumeration of errors and brief in the trial court, which was then forwarded to this Court, in which, among other things, Brown takes issue with the way the proceedings below were conducted and expresses dissatisfaction with both his trial and post-trial counsel. However, it does not appear that Brown has ever waived his right to appellate counsel or filed any petition to pursue his appeal pro se. Accordingly, we will not consider the contentions raised in Brown’s separate pro se filings in this appeal. Merriweather v. Chatman, 285 Ga. 765, 766 (684 SE2d 237) (2009) (“A defendant has a right to pursue an appeal pro se if preceded by an appropriate waiver of the right to appellate counsel.”) (citation and punctuation omitted); Costello v. State, 240 Ga.App. 87, 87-88 (522 SE2d 572) (1999) (same).

       On appeal, Brown suggests that “[f]rom the circumstances surrounding” one of the unexplained bench warrants, “it can be inferred [that] Brown’s change of address may have contributed to him missing court. . . .” But Brown’s failure to raise this issue in his motion for new trial prevents this Court from giving full consideration to this issue, illustrating why failing to raise issues at the motion for new trial phase where they could be fully explored may result in waiver.

       ”[I]n general, a crime is to be construed and punished according to the provisions of the law existing at the time of its commission.” (Citation and punctuation omitted.) Collymore v. State, 298 Ga. 335, 337 (3) (782 SE2d 7) (2016). The theft of the motor vehicle parts occurred in August 2010, and thus the version of OCGA § 16-8-12 (a) (5) (A) effective from July 1, 2009 to June 30, 2012 was properly applied. Id. Effective July 1, 2012, the reference to motor vehicles was removed from the statute. Id. at 338, n.3.

       Brown’s defense was that he had permission to take the engines. However, he does not challenge the sufficiency of the evidence as to the wrongful taking of the property on appeal.