author: Dillard, Judge.

text:
    A14A2215.
    PEPE-FRAZIER v. THE STATE.
    (770 SE2d 654)
   Dillard, Judge.

Following a trial by jury, David Pepe-Frazier was convicted of trafficking of persons for sexual servitude, pimping, aggravated child molestation, enticing a child for indecent purposes, and contributing to the delinquency of a minor. On appeal from these convictions, Pepe-Frazier argues that (1) the trial court erred by admitting prior consistent statements of the victim, (2) the trial court erred by qualifying two expert witnesses, and (3) he received ineffective assistance in various regards. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the record reflects that on April 18, 2009, the then 14-year-old victim encountered Pepe-Frazier when he offered her a ride. The victim was initially hesitant to accept Pepe-Frazier’s offer, but upon noticing that his vehicle was occupied with another male and two young females, she agreed to do so. Pepe-Frazier then drove the group to a house, where the victim spoke at length with the other male, who she came to know as “Swatt” (and who was later identified as Harvey White), before engaging in sexual intercourse with him.

During this time, Pepe-Frazier left the house with the two other females, but upon their return, the victim noticed that one of the females carried a substantial amount of cash and wore “very short shorts.” Pepe-Frazier then informed the victim that he knew she had engaged in sexual intercourse with White and advised her that she “might as well get paid for it” (rather than having sex with men for free). The victim remained at the house for several days and eventually agreed to work as a prostitute for Pepe-Frazier.

Thereafter, over the course of several weeks, either Pepe-Frazier or the home’s female owner would drive the victim and other females, including Pepe-Frazier’s girlfriend (who assisted him in training new prostitutes), to areas where she and the other prostitutes would seek out multiple men with whom to engage in sexual intercourse in exchange for money. And while Pepe-Frazier initially allowed the victim to keep half of what she earned, within days he began taking all of the money she made as a prostitute.

On one occasion, while the victim lived in the house with PepeFrazier and the other prostitutes, Pepe-Frazier made the victim perform oral sex on him while he was simultaneously engaged in sexual intercourse with his girlfriend. And although the victim soon decided that she no longer wished to be a prostitute, she was afraid of Pepe-Frazier after he slapped her when she tried to remove his hand from her mouth and, in another incident, choked and slapped her after a man called her cell phone. Additionally, approximately one week after the victim’s arrival, she witnessed Pepe-Frazier pull a gun on another prostitute who attempted to leave the house. The victim also witnessed Pepe-Frazier punch the woman who owned the house in the stomach and saw him engage in several physical altercations with his girlfriend.

Nevertheless, despite her fear of Pepe-Frazier, the victim eventually made contact with her sister and informed her that she was scared and wished to come home. And shortly thereafter, as the victim was being driven to an area where she regularly prostituted, she text-messaged her family with various landmarks as she passed them, and she then waited in the restroom of a fast-food restaurant while her family notified law enforcement of her location. The vehicle she was driven in was pulled over a short distance down the road based on the victim’s description, and she later positively identified Pepe-Frazier in a photographic lineup.

At Pepe-Frazier’s trial, in addition to the victim’s testimony and that of another former prostitute who worked alongside her, the State also presented testimony from White that, inter alia, he was with Pepe-Frazier when the victim was picked up; Pepe-Frazier convinced the victim to work as a prostitute; Pepe-Frazier’s prostitute girlfriend assisted in training new recruits; he saw the victim summoned to Pepe-Frazier’s room while Pepe-Frazier was engaged in sexual intercourse with his girlfriend; and he saw Pepe-Frazier slap the victim “real hard” when she used her cell phone. Pepe-Frazier was convicted of all the offenses enumerated supra, and this appeal follows.

At the outset, we note that on appeal from a criminal conviction, the defendant is “no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict.” With this guiding principle in mind, we turn now to Pepe-Frazier’s enumerations of error.

1. First, Pepe-Frazier contends that the trial court erred by admitting a prior consistent statement by the victim that was pure hearsay and bolstered her credibility. Specifically, Pepe-Frazier argues that the trial court erred by overruling an objection to testimony by a law-enforcement officer that the victim said Pepe-Frazier slapped her after she removed his hand from her mouth. We agree that the trial court’s admission of this testimony was erroneous; however, this error was harmless.

First, we note that a witness’s prior consistent statement is admissible when “(1) the veracity of a witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.” And a witness’s veracity is placed in issue so as to permit the introduction of a prior consistent statement if “affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination.” Additionally, to be admissible to refute an allegation of fabrication, “the prior statement must predate the alleged fabrication, influence, or motive.”

In the case sub judice, there was no affirmative charge of recent fabrication, and the State elicited the specific testimony on direct examination of the law-enforcement officer. Thus, the trial court erred in admitting the officer’s testimony regarding the victim’s prior consistent statement.

Nevertheless, the admission of the aforementioned testimony does not require reversal, which, in this context, happens only “if it appears likely that the hearsay contributed to the guilty verdict.” Here, that is not the case. First, the complained-of hearsay related to a charge of battery for which Pepe-Frazier was acquitted. And second, the testimony was cumulative of other admissible evidence that the victim was slapped by Pepe-Frazier. Indeed, another former prostitute testified to having personal knowledge that Pepe-Frazier slapped the victim. Accordingly, it is unlikely that the erroneously admitted hearsay contributed to the verdict.

2. Next, Pepe-Frazier contends that the trial court erred by qualifying expert witnesses in the areas of commercial sexual exploitation of children and in pimping culture. Again, we disagree.

The State presented the testimony of two witnesses who the trial court qualified, over Pepe-Frazier’s objections, as experts in the areas of commercial sexual exploitation of children and in pimping culture, terminology, and relationship dynamics between pimps and prostitutes, respectively. Pepe-Frazier contends that the court’s qualification of both experts was in error.

In order to qualify as an expert in a criminal proceeding in Georgia, generally all that was required under the former Evidence Code was that “a person be knowledgeable in a particular matter; his special knowledge may be derived from experience as well as study, and formal education in the subject is not a prerequisite for expert status.” And a decision as to whether a witness possesses such learning or experience to qualify as an expert witness “lies within the sound discretion of the trial court and will not be disturbed unless manifestly abused.”

Here, the witness qualified as an expert in commercial sexual exploitation of children testified that she was the director of forensic services at the Georgia Center for Child Advocacy; had conducted over 1,000 forensic interviews; had been qualified as a forensic-interview expert approximately 46 times; had served on a statewide task-force that addressed concerns regarding commercial sexual exploitation in Georgia; had served on focus groups for the National Center for Missing and Exploited Children to enable national forensic interview protocols for children; had undergone training for mental-health providers in the area of commercial sexual exploitation of children and become a facilitator to train others on the topic; and had attended symposiums and seminars with instruction from the Federal Bureau of Investigation on how to work with sexually exploited children.

As for the witness qualified as an expert in pimping culture, terminology, and relationship dynamics between pimps and prostitutes, she testified that she was the director of forensic services for Fulton County and had previously served as the executive clinical director for a child-advocacy center; had previously worked as the program manager at the Georgia Center for Children, where she dealt with many victims of child-sexual exploitation; had performed more than 2,000 clinical interviews, many with victims of teenage prostitution; worked with various law-enforcement agencies in Georgia to train them in understanding cycles of abuse regarding sexual exploitation; had trained with the National Center for Missing and Exploited Children to study the effects of sexual exploitation, exploring the dynamics between and demeanor of pimps and exploited teenagers; and had studied pimping and prostitution by extensive review of scholarly literature on the subject.

Based on this testimony by both witnesses, we conclude that the trial court did not abuse its discretion in qualifying them as experts in their respective areas. And the subjects about which these witnesses testified — e.g., the reasons why teenage prostitutes do not run away from their pimps, prostitution terminology, and scare tactics frequently used by pimps upon prostitutes — are certainly outside of the ken of the average juror. Furthermore, even assuming arguendo that the trial court erred in permitting the experts’ testimony, given the testimony from the victim, White, and another former prostitute implicating Pepe-Frazier in, inter alia, trafficking persons for sexual servitude and pimping, it is highly probable that any such error did not contribute to the jury’s verdict.

3. Finally, Pepe-Frazier contends that he received ineffective assistance of counsel in numerous regards. Specifically, Pepe-Frazier argues that his counsel was ineffective by failing to (1) object to the victim’s prior consistent statements, (2) request a jury charge on the lesser-included offense of child molestation, (3) object to the imposition of a life sentence for aggravated child molestation when such sentence amounts to “cruel and unusual punishment” within the meaning of the United States and Georgia Constitutions, and (4) object to the denial of his right to allocution during sentencing. Once again, we disagree.

Before addressing Pepe-Frazier’s contentions, we note that, in general, when a defendant claims that his trial counsel was ineffective, he has the burden of establishing that “(1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” And when a trial court determines, as the court below did here, that a defendant did not receive ineffective assistance, we will affirm that decision on appeal unless it is clearly erroneous. With these guiding principles in mind, we turn now to Pepe-Frazier’s specific arguments.

(a) Failure to object to inadmissible hearsay and prior consistent statements. Pepe-Frazier argues that his trial counsel rendered ineffective assistance by failing to object to inadmissible hearsay and testimony regarding the victim’s prior consistent statements regarding the sexual acts she performed with him and her activities working for him as a prostitute.

First, Pepe-Frazier takes issue with testimony from a physician’s assistant who examined the victim and testified as to the victim’s description of the oral and vaginal sex acts she performed with clients and the fact that all but one of her clients wore a condom. But defense counsel did not render ineffective assistance by failing to object to this testimony because any objection would have lacked merit when these statements were made for the purpose of receiving a medical diagnosis or treatment. Pepe-Frazier also takes issue with his trial counsel’s failure to object to the physician’s assistant’s testimony as to what the victim’s mother told her (i.e., that “someone picked [the victim] up, kept her until yesterday and that she said they were soliciting her for sex”), but he cannot establish that he was prejudiced by this testimony when it was cumulative of other admissible evidence establishing the same facts (e.g., White’s testimony that the victim was picked up by Pepe-Frazier and worked as a prostitute, the testimony of the other former prostitute who worked with the victim, and the victim’s statements to the physician’s assistant for purposes of receiving medical treatment).

Second, Pepe-Frazier asserts that his trial counsel was ineffective by failing to object to testimony by law-enforcement officers as to what the victim reported regarding his acts of picking her up, taking her to his residence, acting as her pimp, engaging in sexual intercourse with her, and slapping her when she used her cell phone. But again, Pepe-Frazier cannot establish that he was prejudiced by counsel’s failure to object to this testimony when it was cumulative of other admissible evidence (e.g., White’s eyewitness testimony to some of these same incidents, the testimony of the other former prostitute as to what she and the victim did while staying with Pepe-Frazier).

(b) Failure to request an instruction on the lesser-included offense of child molestation. Next, Pepe-Frazier argues that his trial counsel rendered ineffective assistance by failing to request an instruction on the lesser-included offense of child molestation to the charged offense of aggravated child molestation.

Pepe-Frazier was indicted for and convicted of the offense of aggravated child molestation, which occurs when a person “commits an offense of child molestation which act . . . involves an act of sodomy.” And the State established the commission of this offense by the victim’s testimony that, on one occasion, both she and PepeFrazier’s girlfriend simultaneously performed oral sex upon him while at the house. Nevertheless, Pepe-Frazier argues on appeal that his counsel should have requested an instruction on the lesser-included offense of child molestation when there was evidence that he discussed having sexual intercourse with the victim on the day she arrived and that he and the victim engaged in vaginal intercourse. He also argues that his trial counsel’s theory of the case — i.e., that the victim was lying about him to escape punishment for running away— did not amount to an “all or nothing” defense such that the failure to request an instruction on the lesser-included offense was strategic.

Despite Pepe-Frazier’s arguments to the contrary, the fact that there was evidence of other incidents between Pepe-Frazier and the victim that occurred over the roughly three-week period she lived with him and worked as a prostitute (that could have given rise to additional charges of child molestation) cannot mean that his counsel was ineffective in failing to request a charge on the lesser-included offense based on a specific incident for which there was no evidence that anything other than aggravated child molestation occurred. Indeed, we have previously held that “such failure cannot support a claim of ineffective assistance [when] as here the evidence does not reasonably raise the issue that [the defendant] may be guilty only of the lesser crime.” Furthermore, counsel’s testimony as to his theory of the case — i.e., that the victim was lying about Pepe-Frazier to avoid punishment for running away — did amount to an “all or nothing” defense. Accordingly, Pepe-Frazier has failed to establish that he received ineffective assistance of counsel in this regard.

(c) Failure to object to the sentence for aggravated child molestation. Pepe-Frazier contends that his trial counsel rendered ineffective assistance by failing to challenge his sentence for aggravated child molestation, when the life sentence he received for this offense amounted to “cruel and unusual punishment” within the meaning of the United States and Georgia Constitutions.

To begin with, we note that Pepe-Frazier has waived any direct constitutional challenge to his sentence by failing to raise such a challenge at the first opportunity (i.e., the sentencing hearing), which is what gives rise to his current assertion that trial counsel rendered ineffective assistance by failing to make such a challenge.

OCGA § 16-6-4 provides that, except in limited circumstances not applicable in this case, “a person convicted of the offense of aggravated child molestation shall be punished by imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life .. . ” As previously noted, Pepe-Frazier contends that the trial court’s imposition of a life sentence for his commission of one instance of oral sex with the 14-year-old victim constituted “cruel and unusual punishment.”

As our Supreme Court has held,

[o]utside the context of the death penalty, of extreme cases such as life imprisonment as punishment for overtime parking, and ... of life without parole for a juvenile convicted of non-homicide crimes, successful challenges to the proportionality of legislatively mandated terms of imprisonment should be “exceedingly rare.”

And when, as here, no categorical Eighth Amendment restriction applies, we must “determine whether a sentence for a term of years is grossly disproportionate for a particular defendant’s crime.”

First, we compare the gravity of the offense and the severity of the sentence. And if the threshold comparison leads to an inference of gross disproportionality, this Court will then “compare the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions.” In this respect, our Supreme Court has emphasized that “it is the rare case in which the threshold inference of gross disproportionality will be met and a rarer case still in which that threshold inference stands after further scrutiny.” Additionally, a sentence which is not otherwise cruel and unusual “does not become so simply because it is ‘mandatory.’ ” Indeed, legislative enactments constitute “the clearest and most objective evidence of how contemporary society views a particular punishment.” Thus, the issue of punishment is “one for the legislative branch, and legislative discretion is deferred to unless the sentence imposed shocks the conscience.”

In the case sub judice, the trial court sentenced Pepe-Frazier to life for his commission of aggravated child molestation, which was “not a passive felony.” Indeed, the General Assembly has declared that “sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety.” And here, the evidence established that, while engaged in sexual intercourse with his girlfriend, Pepe-Frazier summoned the 14-year-old victim, who was working alongside other young women as a prostitute on his behalf, to his room and placed his penis in her mouth while his testicles were placed in his girlfriend’s mouth. Under these circumstances, Pepe-Frazier’s sentence does not raise a threshold inference of gross disproportionality. Accordingly, he has failed to show either deficient performance by trial counsel or a reasonable probability that the outcome would have been different if the constitutional challenges had been timely raised, and his ineffective assistance claim is therefore without merit.

(d) Failure to object to the denial of the right to allocution. Lastly, Pepe-Frazier contends that his trial counsel rendered ineffective assistance by failing to object to the trial court’s denial of his right to allocution during sentencing. Yet again, we disagree.

During sentencing, defense counsel made a brief statement on his client’s behalf, describing the defendant’s difficult life and upbringing, before Pepe-Frazier directly addressed the trial court by informing it of the time he had already served with regard to the charges. Then, as the trial court prepared to announce its sentence, PepeFrazier attempted to interrupt the court but was prohibited from doing so when the court said, “It’s my turn, sir.” Based on this exchange, Pepe-Frazier contends that his trial counsel was ineffective in failing to object to the trial court’s denial of his right to allocution.

Under OCGA § 17-10-2, during a presentence hearing, the judge shall “hear argument by the accused or the accused’s counsel and the prosecuting attorney, as provided by law, regarding the punishment to be imposed.” Here, because trial counsel spoke on his client’s behalf (and Pepe-Frazier even made a brief statement), the statute was satisfied and he was not denied his right to allocution. Accordingly, any objection by Pepe-Frazier’s trial counsel would have lacked merit and, thus, counsel was not ineffective.

Decided March 18, 2015

The Pate Law Firm, Page A. Pate, Jess B. Johnson, for appellant.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Sheila E. Gallow, Assistant District Attorneys, for appellee.

Pepe-Frazier also seems to argue that his defense counsel rendered ineffective assistance by failing to request a presentence investigation or present mitigating evidence, pointing to counsel’s testimony at the motion-for-new-trial hearing in which he conceded that he “probably” should have done those things. However, Pepe-Frazier fails to identify exactly what an investigation would have shown or how it would have changed the sentence he ultimately received. Thus, he cannot establish that he received ineffective assistance of counsel in this regard because he has not shown that he was prejudiced.

Accordingly, for all of the foregoing reasons, we affirm PepeFrazier’s convictions.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

        See, e.g., Muse v. State, 323 Ga. App. 779, 780 (748 SE2d 136) (2013).

        Id. We note that the evidence was sufficient to sustain Pepe-Frazier’s convictions, though he makes no argument as to the sufficiency of the evidence on appeal. See id.; see also OCGA § 16-5-46 (c) (“Aperson commits the offense of trafficking a person for sexual servitude when that person knowingly subjects another person to or maintains another person in sexual servitude or knowingly recruits, entices, harbors, transports, provides, or obtains by any means another person for the purpose of sexual servitude.”); OCGA § 16-6-11 (5) (“Aperson commits the offense of pimping when he or she... [ajids or abets, counsels, or commands another in the commission of prostitution or aids or assists in prostitution where the proceeds or profits derived therefrom are to he divided on a pro rata basis.”); OCGA § 16-6-4 (c) (“Aperson commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.”); OCGA § 16-6-5 (a) (“A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.”); OCGA § 16-12-1 (b) (“A person commits the offense of contributing to the delinquency or dependency of a minor or causing a child to he a child in need of services when such person . . . [kjnowingly and willfully encourages, causes, abets, connives, or aids a minor in committing a delinquent act.. . .”).

        Johnson v. State, 328 Ga. App. 702, 706 (2) (760 SE2d 682) (2014) (punctuation omitted); accord Duggan v. State, 285 Ga. 363, 366 (2) (677 SE2d 92) (2009).

        Johnson, 328 Ga. App. at 706 (2) (punctuation omitted); accord Duggan, 285 Ga. at 366 (2).

        Johnson, 328 Ga. App. at 706 (2) (punctuation omitted); accord Moon v. State, 288 Ga. 508, 511 (4) (705 SE2d 649) (2011).

        See, e.g., Johnson, 328 Ga. App. at 706 (2) (holding that trial court erred in allowing law-enforcement officer’s testimony as to victim’s prior consistent statement when there was no affirmative charge of recent fabrication and the State elicited the testimony during its direct examination of the witness).

        Id. (punctuation omitted); accord Baugh v. State, 276 Ga. 736, 739 (2) (585 SE2d 616) (2003).

        See Phillips v. State, 289 Ga. App. 281, 282 (1) (656 SE2d 905) (2008) (holding that any error in admitting results of breath test through admission of breathalyzer’s certificate of inspection, which defendant claimed constituted inadmissible testimonial hearsay, was harmless when the jury acquitted defendant of driving under the influence with an unlawful blood-alcohol concentration).

        See Character v. State, 285 Ga. 112, 120 (6) (674 SE2d 280) (2009) (holding that admission of prior statement constituted error, but was harmless when other admissible evidence established the same fact); Johnson, 328 Ga. App. at 707 (2) (holding that admission of hearsay was unlikely to have contributed to the verdict when other admissible evidence established the same fact).

       We note that Pepe-Frazier was tried in 2012, making the former Evidence Code applicable. See Ga. L. 2011, p. 99, § 101 (providing that Georgia’s new Evidence Code applies “to any motion made or hearing or trial commenced on or after” January 1,2013). That said, the standard under the former Evidence Code for permitting an expert to offer opinion testimony in a criminal proceeding was retained in Georgia’s new Evidence Code at OCGA § 24-7-707, which provides that “[i]n criminal proceedings, the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses”; see also Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 398 (3d ed. 2015).

        Weeks v. State, 270 Ga. App. 889, 893 (2) (608 SE2d 259) (2004) (punctuation omitted); accord McCrickard v. State, 249 Ga. App. 715, 718 (2) (549 SE2d 505) (2001); see also Burgess v. State, 292 Ga. 821, 822 (2) (742 SE2d 464) (2013) (“A witness need not be formally educated in the field at issue to be qualified as an expert.”); Fielding v. State, 278 Ga. 309, 311 (3) (602 SE2d 597) (2004) (“An expert witness is anyone who, through training, education, skill, or experience, has particular knowledge that the average juror would not possess concerning questions of science, skill, trade, or the like.”).

        Stevenson v. State, 272 Ga. App. 335, 339 (2) (612 SE2d 521) (2005) (punctuation omitted); accord Griffin v. State, 243 Ga. App. 282, 286 (5) (531 SE2d 175) (2000); see also Burgess, 292 Ga. at 822 (2) (“Atrial court has broad discretion in accepting or rejecting the qualifications of an expert. We will not disturb such rulings unless there is a showing that the trial court abused its discretion.” (citations and punctuation omitted)).

        See Burgess, 292 Ga. at 822-23 (2) (holding that trial court did not abuse its discretion in qualifying an expert witness in the area of gang identity and investigation based on his training and experience); Stevenson, 272 Ga. App. at 339 (2) (“[Wjhether a witness possesses such learning or experience to qualify as an expert witness lies within the sound discretion of the trial court and will not be disturbed unless manifestly abused.” (punctuation omitted));
        Griffin, 243 Ga. App. at 286 (5) (same); see also United States v. Anderson, 560 F3d 275, 281-82 (1) (C) (5th Cir. 2009) (holding that district court did not abuse its discretion in allowing expert testimony from the director of a center specializing in serving victims of sexual exploitation); United States v. Shamsud-Din, No. 10 CR 927, 2012 WL 280702, at *4-5 (I) (N.D. Ill. 2012) (denying motion in limine when witness possessed specialized knowledge so as to qualify as an expert in commercial sexual exploitation); United States v. Williams, Crim. No. 05-CR-443, 2007 WL 3118306, at *2-3 (II) (B) (M.D. Pa. 2007) (holding that witness possessed specialized knowledge so as to qualify as an expert in commercial sexual exploitation of adults and juveniles).

        See United States v. Anderson, 851 F2d 384, 392-93 (IV) (A) (D.C. Cir. 1988) (noting that expert testimony on “pimping patterns and the pimp-prostitute relationship” might have assisted the jury in determining whether the defendant was a pimp or simply a “gambler with a flashy lifestyle and a penchant for travel,” as well as the credibility of the government’s prostitute-witnesses); cf. Edge v. State, 275 Ga. 311, 313 (5) (567 SE2d 1) (2002) (holding that expert’s testimony as to “aspects of gang culture relevant to the case, including requirements of members’ obedience, silence, and staunch defense of other gang members, and the punishment meted out to a gang member who violates these requirements” went to “factual matters outside the experience of the average juror”); Lowe v. State, 310 Ga. App. 242, 244-45 (2) (a) (712 SE2d 633) (2011) (holding that the meaning of certain street slang or drug terminology was outside the ken of the average juror).

        See, e.g., Morris v. State, 294 Ga. 45, 49 (3) (751 SE2d 74) (2013) (noting that, because “the relatively brief testimony of [a law-enforcement officer] regarding gangs generally was dwarfed by the magnitude of testimony of the many witnesses offering evidence implicating [the defendant] in specific crimes of violence,” it was highly probable that any such error in admitting the testimony did not contribute to the jury’s verdicts); Sanders v. State, 251 Ga. 70, 76 (3) (303 SE2d 13) (1983) (holding that improper admission of expert testimony was harmless in light of otherwise overwhelming evidence and fact that testimony covering substantially the same area was introduced without challenge).

       U. S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (emphasis supplied)); Ga. Const., art. I, § 1,¶ XVII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; nor shall any person be abused in being arrested, while under arrest, or in prison.” (emphasis supplied)).

        Muldrow v. State, 322 Ga. App. 190, 193 (2) (b) (744 SE2d 413) (2013) (punctuation omitted); accord Owens v. State, 317 Ga. App. 821, 823 (1) (733 SE2d 16) (2012).

        Muldrow, 322 Ga. App. at 193 (2) (b); accord Owens, 317 Ga. App. at 823 (1).

        See, e.g., Porras v. State, 295 Ga. 412, 420 (3) n.8 (761 SE2d 6) (2014) (“[TJhe failure to make a meritless objection cannot amount to ineffective assistance.”); see also former OCGA § 24-3-4 (“Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admissible in evidence”). The hearsay exception provided for in former OCGA § 24-3-4 is now essentially recognized in OCGA § 24-8-803 (4) (“Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”).

        See, e.g., Miller v. State, 296 Ga. 9, 12 (4) (b) (764 SE2d 823) (2014) (holding that any deficiency in counsel’s failure to object to alleged hearsay testimony that repeated statement of witness regarding identity of murder perpetrator did not prejudice defendant, and thus was not ineffective assistance, when testimony was cumulative of other eyewitness testimony); Maurer v. State, 320 Ga. App. 585, 592 (6) (b) (740 SE2d 318) (2013) (holding that any deficiency in failure to object to hearsay did not prejudice defendant when testimony was cumulative of other evidence).

        See, e.g., Miller, 296 Ga. at 12 (4) (b); Maurer, 320 Ga. App. at 592 (6) (b).

       OCGA § 16-6-4 (c); see also OCGA § 16-6-4 (a) (1) (“Aperson commits the offense of child molestation when such person... [djoes 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 . . . .”).

       We note that Pepe-Frazier was indicted on a charge of statutory rape related to the allegations of having vaginal intercourse with the victim, hut the jury acquitted him of this charge.

        See, e.g., Jessie v. State, 294 Ga. 375, 377 (2) (a) (754 SE2d 46) (2014) (holding that the decision to pursue an “all or nothing” strategy was “not patently unreasonable” and, accordingly, that counsel was not ineffective in his strategic decision not to request a jury charge as to the lesser-included offense).

        Cf. Nguyen v. State, 296 Ga. App. 853, 855, 856 (2) (a) (676 SE2d 246) (2009) (holding that, had trial counsel requested charge on lesser-included offense of child molestation to charged offense of aggravated child molestation, trial court would have been required to give the charge on the lesser-included offense when defendant testified that during incident in question, he was hugging the victim’s stomach, not performing oral sex).

        Chancey v. State, 258 Ga. App. 319, 321 (4) (a) (574 SE2d 383) (2002); see also Head v. State, 233 Ga. App. 655, 659 (4) (504 SE2d 499) (1998) (holding that counsel was not ineffective in failing to request a charge on the lesser-included offense when the evidence “showed either the commission of the completed offense as charged or the commission of no offense,” such that the defendant “was not entitled to a charge on the lesser offense”).

        See Gordon v. State, 327 Ga. App. 774, 781 (5) (b) (761 SE2d 169) (2014) (“Given that [the defendant’s] trial strategy was a categorical denial that anything inappropriate happened, seeking a lesser included offense of sexual battery would have been inconsistent with that strategy.”); Smith v. State, 310 Ga. App. 392, 396 (3) (713 SE2d 452) (2011) (“[The defendant] has pointed to no evidence demonstrating that a touch occurred without the necessary intent. And he did not defend the case on the ground that he touched [the victim] without intent. He pursued the ‘all or nothing’ defense that [the victim] made up her entire story.”); see also Jessie, 294 Ga. at 377 (2) (a) (holding that the decision to pursue an “all or nothing” strategy was “not patently unreasonable” and, accordingly, that counsel was not ineffective in his strategic decision not to request a jury charge as to the lesser-included offense).

        See Jones v. State, 290 Ga. 670, 673-74 (3) (725 SE2d 236) (2012) (noting that “a constitutional attack on a sentencing statute should normally be made no later than the sentencing hearing, at a time when corrective action is still possible” and that, because appellant “failed to raise his constitutional challenges at the first available opportunity during the sentencing hearing” and instead “first raised [them] in his amended motion for new trial,” his challenges were untimely and not subject to review).

        See id. at 674 (3) (holding that, because appellant had waived review of constitutional challenge to sentencing statute by failing to raise it at the first opportunity, “the trial court correctly proceeded to examine whether [the appellant’s] trial counsel was ineffective for failing to raise constitutional challenges to the sentencing statutes”).

       OCGA § 16-6-4 (d) (1).

        Adams v. State, 288 Ga. 695, 701 (4) (707 SE2d 359) (2011); see also Ewing v. California, 538 U. S. 11, 21-22(11) (A) (123 SCt 1179, 155 LE2d 108) (2003) (noting that “outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare” (punctuation omitted)).

        Adams, 288 Ga. at 701 (4) (punctuation omitted).

        Id.

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        Id. at 701-02 (punctuation omitted).

        Id. at 702 (punctuation omitted).

        Bragg v. State, 296 Ga. App. 422, 426 (674 SE2d 650) (2009).

       Ga. L. 2006, p. 379, § 1.

        See Adams, 288 Ga. at 702 (4) (holding that defendant’s 25-year sentence did not raise threshold inference of gross disproportionality when “[t]he evidence showed that, during one of numerous acts of child molestation, [the defendant] placed his penis to the young victim’s mouth, ejaculated, and made her lick the semen off his penis”); see also Horne v. State, 298 Ga. App. 601, 606 (3) (680 SE2d 616) (2009) (holding that life sentence imposed for kidnapping with bodily injury was not cruel and unusual, even if victim’s injuries were minor); Green v. State, 193 Ga. App. 894, 896 (2) (389 SE2d 358) (1989) (holding that life sentence imposed for kidnapping with bodily injury of 14-year-old victim was not cruel and unusual punishment, even though bodily injury was slight, given circumstances attendant upon offense); cf. Bradshaw v. State, 284 Ga. 675, 683 (4) (671 SE2d 485) (2008) (holding that the imposition of a life sentence for failure to register as a sex offender constituted cruel and unusual punishment because the sentence was so harsh in comparison to the crime); Humphrey v. Wilson, 282 Ga. 520, 528-30 (3) (c) (652 SE2d 501) (2007) (finding a “rare case” of gross disproportionality in holding that 10-year sentence for commission of consensual oral sex between 17-year-old defendant and 15-year-old victim constituted cruel and unusual punishment, given General Assembly’s recent sweeping change in the punishment for consensual teenage oral sex).

        See Jones, 290 Ga. at 676 (3) (holding that defendant failed to establish that he received ineffective assistance of counsel by counsel’s failure to challenge sentence as equating to cruel and unusual punishment).

       OCGA § 17-10-2 (a) (2).

       See Blue v. State, 275 Ga. App. 671, 675 (3) (621 SE2d 616) (2005) (holding that trial court’s admonishment when defendant interrupted pronouncement of sentence was not a violation of defendant’s right to allocution when, at the sentencing hearing, the defendant’s counsel spoke on his behalf).

        See, e.g., Porras, 295 Ga. at 420 (3) n.8 (“[T]he failure to make a meritless objection cannot amount to ineffective assistance.”).

        See Zellmer v. State, 273 Ga. App. 609, 610 (1) (615 SE2d 654) (2005) (rejecting assertion that defendant received ineffective assistance of counsel when he “fail[ed] to point out what [an] investigation would have shown or how it would have changed the sentence he received” and, despite mentioning out-of-state witnesses, did not “explain what their testimony would have been or how it would have helped him at sentencing”); Hayes v. State, 211 Ga. App. 801, 803 (1) (440 SE2d 539) (1994) (rejecting assertion that defendant received ineffective assistance of counsel when he failed to show how he was harmed by the failure to request a presentence investigation).


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A15A0537.
    THE STATE v. REID et al.
    (770 SE2d 665)
   Ray, Judge.

Nearly a year after a jury convicted Patricia Reid and Anthony Vincent Pope of various felonies, the trial court reversed the judgment of conviction and granted them new trials purportedly based upon the court’s doubts as to the credibility of a State witness. The State argues on appeal that the trial court erred in granting the new trials. Under the unique circumstances presented in this case, we agree.

The pertinent case history is as follows. In July 2013, Reid, Pope, and co-defendant Crawford Lewis were indicted in the DeKalb County Superior Court for violating Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act (OCGA § 16-14-4) and for theft by taking (OCGA § 16-8-2) based upon their alleged joint conspiracy to redirect government contracts and misappropriate government property. Lewis was also charged under a separate indictment for obstructing an officer (OCGA § 16-10-24 (a)). In October 2013, Lewis pled guilty to a misdemeanor in the obstruction of an officer case in exchange for a probationary sentence, a fine, and community service. As a condition of his plea, Lewis agreed to testify truthfully against Reid and Pope in their joint trial. Lewis testified in the November 2013 trial, and the jury subsequently convicted both Reid and Pope of RICO violations and also found Reid guilty of theft by taking.

The trial court entered judgment on the verdict and held a sentencing hearing in December 2013, at which Reid was sentenced to twenty years, with fifteen years to be served in confinement, and Pope was sentenced to twenty years, with eight years to be served in confinement. Although the State maintained that Lewis satisfied his obligation to testify truthfully and requested that he be sentenced in accordance with the plea agreement, the trial court refused to do so. Without challenging the truthfulness of Lewis’s testimony, the trial judge — admittedly incensed by what she considered to be the “abhorrent” criminal conduct of all involved — emphasized that Lewis was “a public official, this was on his watch, he stood by. And then he hindered and interfered with and tried to stop the completion of a rightful, lawful investigation.” Consequently, she refused to impose upon Lewis a sentence “disproportionate” to that of his co-conspirators and instead sentenced him to 12 months in confinement.

Reid and Pope thereafter filed timely motions for new trials, but Pope later withdrew his motion and filed a notice of appeal. Meanwhile, in the obstruction case, Lewis filed a motion for an immediate hearing for reconsideration of his sentence. After conducting a hearing on the motion, the trial judge declined to reconsider the sentence, changed her rationale for refusing to consummate the previously agreed-upon plea deal, and stated for the first time that her rejection of Lewis’s plea and the resultant sentence were based upon “the credibility, the believability, the probability or the improbability of [Lewis’s] testimony[.]”

Lewis, now aligned with the State, appealed his case to this Court. See Lewis v. State, 330 Ga. App. 412 (767 SE2d 771) (2014). Although sympathetic to the trial court’s plight given Lewis’s criminal culpability, we nonetheless held that the court was bound to sentence Lewis in accordance with the terms of the plea agreement so long as his material testimony to the State’s case against Reid and Pope was truthful. See id. at 413 (1). We remanded the case to the trial court to allow the judge to identify specifically the testimony she considered of questionable credibility, to determine whether that testimony was material to the prosecution, and to provide Lewis (and the State, on his behalf) an opportunity to respond. See id. at 414 (2). In a footnote of the opinion, we noted that if the trial court ultimately concluded that Lewis did, in fact, testify untruthfully to material aspects of the State’s case, “such a finding may call into question the validity of [Reid and Pope’s] convictions.” (Citation omitted.) id. at 415 (2), n. 4.

On October 27, 2014, three days after our opinion in Lewis was rendered hut before the remittitur was sent, the trial judge issued the instant order in which she identified those parts of Lewis’s testimony that she considered lacking in credibility, deemed the testimony material, and held that she “[could not] presume that [the testimony] did not impact the jury’s verdict as to [Reid and Pope].” She thereafter granted Reid’s motion for new trial and sua sponte granted Pope a new trial “in the interests of justice.”

The State appeals, arguing that the trial court erred in reversing Reid and Pope’s judgment of conviction. We agree.

Georgia law authorizes the trial court to independently assess a witness’s credibility and grant a new trial if the court determines that the verdict of the jury “is .. . contrary to evidence and the principles of justice and equity,” OCGA § 5-5-20, or if it is “decidedly and strongly against the weight of the evidence.” OCGA § 5-5-21. “When properly raised in a timely motion, these grounds for a new trial — commonly known as the general grounds — require the trial judge to exercise a broad discretion to sit as a thirteenth juror.” (Citation and punctuation omitted.) White v. State, 293 Ga. 523, 524 (2) (753 SE2d 115) (2013). See also Choisnet v. State, 292 Ga. 860, 861 (742 SE2d 476) (2013). In so doing, the trial court has an “affirmative duty” not only to assess witness credibility, but also to consider conflicts in the evidence and to weigh the evidence as a whole in order to determine whether the verdict is so decidedly against the weight of the evidence and/or the principles of justice and equity so as to warrant the Court setting it aside. Brockman v. State, 292 Ga. 707, 713 (4) (739 SE2d 332) (2013); see White, supra at 524 (2) (“In exercising ... discretion [under the general grounds], the trial judge must consider some of the things that she cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence.”) (citation omitted); Choisnet, supra at 861 (“Atrial court reviewing a motion for newtrialbased on [general] grounds has a duty to exercise its discretion and weigh the evidence and consider the credibility of the witnesses”). See also Copeland v. State, 327 Ga. App. 520, 525 (2) (759 SE2d 593) (2014) (noting that it is “incumbent” upon the trial judge to weigh the evidence under the general grounds). The court’s discretion “should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” (Citation and punctuation omitted.) Alvelo v. State, 288 Ga. 437, 438 (1) (704 SE2d 787) (2011).

Furthermore, if a trial court grants a new trial on its own motion, it must do so within 30 days from entry of the underlying judgment. See OCGA § 5-5-40 (h) (“The court... shall be empowered to grant a new trial on its own motion within 30 days from entry of the judgment....”). Moreover, outside of that statutorily defined 30-day window, a trial court considering a timely motion for new trial is confined to the grounds raised in the motion itself. See State v. Jones, 284 Ga. 302, 303 (1) (667 SE2d 76) (2008); Bean v. Landers, 215 Ga. App. 366, 368 (2) (450 SE2d 699) (1994).

As set forth below, when considered within this statutory framework, we have no trouble concluding that the trial court erred in reversing Reid and Pope’s judgment of conviction.

1. The question as to whether Reid sufficiently raised the general grounds in her motion for new trial so as to invoke the trial court’s discretion to act as the thirteenth juror is a close one. In following with our mandate to liberally construe motions or other pleadings “to serve the best interests of the pleader,” however, we will construe the motion in Reid’s favor and consider the issue to have been raised. (Citation and punctuation omitted.) Gully v. Glover, 190 Ga. App. 238, 239 (1) (378 SE2d 411) (1989).

Nevertheless, although the trial court exercised its discretion as the thirteenth juror to assess the credibility of at least one witness, it otherwise failed to properly fulfill its affirmative statutory duty to independently weigh the trial evidence as required by OCGA §§ 5-5-20 and 5-5-21. See White, supra at 524 (2); Walker v. State, 292 Ga. 262, 264 (2) (737 SE2d 311) (2013). This conclusion is evidenced by the fact that the judge ordered a new trial based upon her inability to “presume that [Lewis’s untruthful testimony] did not impact the jury’s verdict[.]” But, the impact that Lewis’s testimony may have had on the jury’s evaluation of the evidence is not the proper inquiry under the general grounds. Rather, after assessing Lewis’s credibility and identifying the offending testimony, it was incumbent upon the trial court to then examine and weigh the remaining evidence and independently consider whether the jury’s verdict was “contrary to [the] evidence and the principles of justice and equity,” OCGA § 5-5-20, or was “decidedly and strongly against the weight of the evidence.” OCGA § 5-5-21. See White, supra at 524 (2); Walker, supra at 264 (2). This it clearly did not do. Accordingly, we must vacate the trial court’s order and remand this case to the trial court for proper consideration of the general grounds, as well as the remaining arguments contained in Reid’s motion for new trial.

Decided March 18, 2015.

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

J. Tom Morgan, Axam Law, Tony L. Axam, Axam-Roberts Legal Group, Danielle P. Roberts, Cinque M. Axam, Clegg Daniels & Petrey, John H. Petrey, Alston & Bird, Bernard Taylor, Michael L. Brown, Kacy M. McCaffrey, for appellees.

2. As to Pope, the trial court lacked the authority to reverse his judgment of conviction. The record is undisputed that Pope did not have a motion for new trial pending at the time the trial court entered its order, which occurred nearly a year after the entry of judgment. Because the trial court’s sua sponte grant of a new trial fell outside of the 30-day window prescribed by the statute, it was erroneous as a matter of law. See OCGA § 5-5-40 (h). See also Jones, supra at 303 (1).

For these reasons, the trial court’s order is vacated as to Reid and reversed as to Pope, and this case is remanded to the trial court for consideration of Reid’s motion for new trial.

Judgment reversed in part and vacated in part, and case remanded.

Barnes, P. J., and McMillian, J., concur.

       Pope withdrew his notice of appeal that was pending in this Court a few hours before the trial court issued the order.

       The State’s brief focuses primarily on the trial court’s failure to conduct proceedings in the Lewis case and make findings of fact in accordance with our opinion in Lewis. Por the reasons also noted in the State’s brief and fully explained herein, however, the trial court erred for reasons completely independent of the Lewis case.

       The special grounds raised in Reid’s motion for new trial generally go to the sufficiency of the evidence and/or actions of the trial court that she contends were errors of law or constitutional violations. She did, however, vaguely assert that “[t]he evidence confused the jury and provided no clarity to reach a unanimous verdict,” and that “the jury’s verdict is contrary to the law and facts.”


author: BARNES, Presiding Judge.

text:
    A14A1865.
    HILL v. THE STATE.
    (769 SE2d 179)
   BARNES, Presiding Judge.

A jury convicted Quentin Marcellius Hill of statutory rape and aggravated child molestation. Hill filed a motion for a new trial, which the trial court denied. On appeal, Hill challenges the sufficiency of the evidence. He further contends that it was plain error for the trial court to charge the jury that the prior consistent statements of the victim may constitute sufficient corroboration in a statutory rape case, and that his trial counsel was ineffective for failing to obj ect to the charge. For the reasons discussed below, we affirm.

The evidence, construed in favor of the jury’s verdict, showed that on June 28, 2011, the 13-year-old victim was sitting alone in her mother’s car in a grocery store parking lot. Hill, who was 21 years old, parked his car next to the mother’s car where the victim was sitting and went inside the store. After leaving the store, Hill saw that the victim was still in the car and signaled for her to roll down her window. The victim complied, and Hill asked the victim her age. The victim told Hill that she was 13 years old. When Hill said that he did not believe her, the victim repeated her age, and Hill responded, “[Yjou’re young, but I still think you’re cute and I want to talk to you.” Hill and the victim then exchanged cell phone numbers, and the victim programmed Hill’s name and phone number into her cell phone.

Hill called and texted the victim later that same day, and they continued to talk on the phone and text one another over the next few months. The text messages quickly became sexual in nature. Ultimately, Hill began coming over to the victim’s house in the morning after her parents had left for work but before the victim left for school. In early September 2011, Hill came over to the victim’s house before school and performed oral sex on her. Later that month, Hill returned to the victim’s house before school, performed oral sex on her, and had sexual intercourse with her. Hill and the victim continued to text back and forth with one another before and after their sexual encounters.

By the end of September, the victim’s father had become concerned that his daughter might be involved in an inappropriate relationship and took away her cell phone. He went through the text messages and found several from Hill, including the messages that were sexual in nature. He also found a picture of Hill on the victim’s phone and realized that he was “grown.” Hill continued attempting to call and text the victim on the weekend that her father had taken away her phone.

The victim’s father came to the conclusion that Hill was coming over to the family’s house after he and his wife were leaving for work in the mornings. He decided to stay home from work that Monday and see if Hill came over to visit the victim, but he did not tell the victim about his plan. As the father watched from a window that morning, he saw Hill, whom he recognized from the photo in the victim’s phone, drive up to the house. The father called 911 and then went outside and confronted Hill. Hill said that he was there to buy marijuana and denied that he had come to see the victim.

When police officers arrived at the house, the father spoke with them and showed them the text messages on the victim’s cell phone. The officers also spoke with the victim, and she told them about her two sexual encounters with Hill in September 2011. Hill initially told the officers that he was only there to buy marijuana, but they arrested him based on what the victim and her father had told them and based on the text messages. While Hill was being arrested, the victim for the first time told her father about her two sexual encounters with Hill. Subsequently, after Hill was advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966) and agreed to speak with the officers, he confessed to having oral sex and intercourse with the victim.

Based on the allegation that he had sexual intercourse with the victim, Hill was indicted for statutory rape, and based on the allegation that he had performed oral sex on her, Hill was indicted for aggravated child molestation. At the jury trial, the victim testified to the events as set out above. Her father testified about his confrontation with Hill and about what the victim told him had occurred, and the responding officers testified about the statements made to them by Hill and the victim. Additionally, the State introduced into evidence 74 pages of text messages between Hill and the victim spanning from when they first met in June 2011 until their relationship ended in late September 2011.

Hill took the stand in his own defense. He testified that the victim told him that she was 17 years old and had been sitting in the driver’s seat of the car when he first met her in the grocery store parking lot. Hill admitted to repeatedly calling and texting the victim on her phone and that he had lied about going over to the victim’s house to buy marijuana, but he claimed that he and the victim never had any sexual encounters and that he never made any incriminating statements to the police.

After hearing the conflicting testimony, the jury found Hill guilty of the charged offenses. Following a hearing, the trial court denied Hill’s motion for a new trial, and this appeal followed.

1. Hill challenges the sufficiency of the evidence to support his convictions of statutory rape and aggravated child molestation. According to Hill, his convictions should be reversed because there was insufficient corroboration of the victim’s testimony to support his statutory rape conviction, and because there was no physical evidence to support either conviction. We are unpersuaded.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and [Hill] no longer enjoys the presumption of innocence. We neither weigh the evidence nor assess the credibility of witnesses, but merely ascertain that the evidence is sufficient to prove each element of the crime beyond a reasonable doubt. Moreover, conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld.

(Citation omitted.) Rollins v. State, 318 Ga. App. 311 (733 SE2d 841) (2012).

(a) Statutory Rape. “A person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.” OCGA § 16-6-3 (a).

The quantum of corroboration needed in a statutory rape case is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient corroboration, and ultimately the question of corroboration is one for the jury.

(Citation and emphasis omitted.) Agan v. State, 319 Ga. App. 560, 561-562 (737 SE2d 347) (2013). Physical findings corroborating the victim’s testimony are not necessary to sustain a conviction of statutory rape. See Davis v. State, 221 Ga. App. 131, 132 (1) (470 SE2d 520) (1996).

Applying these principles, we conclude that there was sufficient corroboration to support Hill’s statutory rape conviction. Specifically, the victim’s testimony that Hill performed oral sex on her when she was 13 years old, corroborated by her prior consistent statements to her father and to the responding officers and by Hill’s confession to the officers, was sufficient to support Hill’s conviction beyond a reasonable doubt. See Bankston v. State, 249 Ga. App. 118 (548 SE2d 25) (2001) (victim’s testimony corroborated by defendant’s confession to police); Long v. State, 189 Ga. App. 131, 132 (1) (375 SE2d 274) (1988) (victim’s testimony corroborated by victim’s prior consistent statements to parent and social worker).

Although Hill testified that the victim told him she was 17 years old, “[k]nowledge of the age of the victim is not an element of the offense of statutory rape, and reasonable belief that the victim is of the age of consent is not a defense to statutory rape.” Neal v. State, 264 Ga. App. 311, 315 (5) (590 SE2d 168) (2003). And, in any event, the jury was entitled to find that Hill’s testimony that he was mistaken about the age of the victim was not credible. See Rollins, 318 Ga. App. at 311 (witness credibility is for the jury to resolve).

(b) Aggravated Child Molestation. A person commits the offense of aggravated child molestation when he or she performs “any immoral or indecent act” involving sodomy to 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.” OCGA § 16-6-4 (a), (c). The victim’s testimony that she had oral sex with Hill when she was 13 years old, standing alone, was sufficient to support Hill’s conviction for aggravated child molestation beyond a reasonable doubt. See Fiek v. State, 266 Ga. App. 523, 527 (4) (597 SE2d 585) (2004). Physical evidence of the molestation was not required. See Hutchinson v. State, 287 Ga. App. 415, 417 (651 SE2d 523) (2007).

2. After the close of evidence, the trial court charged the jury that a conviction for statutory rape cannot be based on the uncorroborated testimony of the victim. The trial court went on to charge that “[a] victim’s prior consistent statement, as recounted by third parties to whom such statements were made, may constitute sufficient evidence of corroboration in a statutory rape case. Whether or not such is the case is a matter for you, the jury.” Hill did not object at trial, but he contends that the trial court committed plain error in its charge to the jury on the use of a victim’s prior consistent statements as corroborating evidence in statutory rape cases. We are unpersuaded.

Even when a defendant fails to object to a jury charge at trial, we will review the charge for plain error. See OCGA § 17-8-58 (b); Booker v. State, 322 Ga. App. 257, 260 (2) (744 SE2d 429) (2013). But our review in this respect is limited:

Reversal based on plain error is authorized [only] if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Satisfying all four prongs of this standard is difficult, as it should be.

Decided February 25, 2015

Reconsideration denied March 19, 2015

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Teresa B. Klein, Assistant District Attorneys, for appellee.

(Citation and punctuation omitted.) Booker, 322 Ga. App. at 260 (2). See White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012); State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011).

Hill cannot show plain error because the jury charge at issue was not erroneous. We have repeatedly held, as the trial court instructed, that “a child-victim’s prior consistent statements, as recounted by third parties to whom such statements were made, can constitute sufficient substantive evidence of corroboration in a statutory rape case.” (Citation and punctuation omitted.) Brown v. State, 318 Ga. App. 334, 336 (1) (733 SE2d 863) (2012). See Lee v. State, 232 Ga. App. 300, 302 (2) (501 SE2d 844) (1998); Long, 189 Ga. App. at 132 (1). Indeed, we approved of a similar charge given by a trial court in a previous case. See Ogles v. State, 218 Ga. App. 92, 93 (1) (c) (460 SE2d 866) (1995) (comparing “inapt” jury charge requested by the defendant to the trial court’s proper charge that “[a] victim’s prior consistent statements as recounted by third persons may be sufficient evidence of corroboration”). Accordingly, contrary to Hill’s assertion, there was no plain error in the giving of the charge.

3. In a related enumeration of error, Hill contends that his trial counsel rendered ineffective assistance by failing to object to the jury charge on the use of a victim’s prior consistent statements as corroborating evidence in statutory rape cases. But, for the reasons discussed supra in Division 2, such an objection would not have been sustained by the trial court because the jury charge was an accurate statement of the law. Because the “[fjailure to make a meritless objection cannot be evidence of ineffective assistance,” Hill cannot succeed on his ineffective assistance claim. (Punctuation and footnote omitted.) Eley v. State, 266 Ga. App. 45, 48 (2) (596 SE2d 660) (2004).

Judgment affirmed.

Boggs and Branch, JJ., concur.


author: McFadden, Judge.

text:
    A14A2122.
    McCLATTIE v. KOWAL et al.
    (769 SE2d 187)
   McFadden, Judge.

Teiza J. McClattie sued her next door neighbors, Christopher and Amy Kowal, alleging that they trespassed and encroached on her property in various ways. After a jury trial, the court entered judgment on the jury’s special verdict, finding that the Kowals had acquired a small portion of property by prescription; that the Kowals had trespassed but that McClattie was not entitled to damages; and that the Kowals were permanently enjoined from removing McClattie’s ornamental plants. McClattie appeals. She argues that the trial court erred in granting the Kowals a directed verdict on two of her claims, but the court did not err in determining that McClattie could not recover on those claims as a matter of law. Although we agree with McClattie that the trial court erred by dismissing her motion for judgment notwithstanding the verdict, any error in this regard was harmless, given that the motion lacked merit. Finally, McClattie argues that the trial court erred in admitting irrelevant photographs of her overgrown yard, but she has failed to show that the trial court abused his discretion.

The Kowals purchased their residence in 1995. Achain link fence enclosed the back yard at the time they purchased their property. McClattie purchased the house next door in 2001. She filed this action alleging that the Kowals installed a gate post over the property line; cut limbs off McClattie’s trees; placed their garbage cans in front of McClattie’s property; trespassed and encroached on McClattie’s property; and cut the grass on McClattie’s property. McClattie also alleged that the flared end of the Kowals’ driveway crossed the property line into her yard. McClattie sought injunctive relief, damages, and attorney fees.

1. The Kowals’ directed verdict.

McClattie first argues that the trial court erred by granting the Kowals’ motion for directed verdict. The trial court directed a verdict in the Kowals’ favor on McClattie’s allegations regarding the location of the Kowals’ driveway and the placement of their trash cans. The trial court did not err.

The undisputed evidence was that the flared portion of the Kowals’ driveway — the portion about which McClattie complains — is located in the public right of way. “[McClattie] has not demonstrated legal possession because the subject property is, as [s]he concedes [in her appellate brief], a public right of way. . . . [Her] interest in such property is not one whereby [s]he may assert that [s]he possesses the land to the exclusion of others.” Moses v. Traton Corp., 286 Ga. App. 843, 844 (1) (650 SE2d 353) (2007).

The case upon which McClattie relies, Barham v. Grant, 185 Ga. 601 (196 SE 43) (1938), is inapposite. That case concerned the obstruction of an abutting property owner’s right of ingress and egress to a public highway. Here, as she conceded in her testimony, McClattie’s right of access to the street in front of her property was unimpeded by the Kowals’ driveway. The trial court did not err in granting the Kowals a directed verdict on this claim. Sorrow v. Hadaway, 269 Ga. App. 446, 450 (2) (604 SE2d 197) (2004).

McClattie has cited no authority to support her claim that she is entitled to relief because of the Kowals’ placement of their trash cans on the public street, and we have found none. She has not shown that the trial court erred in granting the Kowals a directed verdict on this claim.

2. McClattie’s motion for judgment notwithstanding the verdict.

McClattie argues that the trial court erred by dismissing her motion for judgment notwithstanding the verdict on the ground that she had not moved for a directed verdict. We agree with McClattie that she did move for a directed verdict at the close of the evidence, at least on the issue of exclusivity of the Kowals’ adverse possession. Although McClattie’s counsel did not describe the motion as one for directed verdict, Kowals’ counsel did so describe it. And the motion was in substance a motion for directed verdict: McClattie “move[d] that the issue of adverse possession be eliminated on the grounds that . . . they haven’t shown that it was exclusive.” Substance, not nomenclature, controls, and this motion was a sufficient prerequisite for a motion for judgment notwithstanding the verdict. Jones v. Spindel, 128 Ga. App. 88, 102-103 (9) (196 SE2d 22) (1973), questioned on other grounds by Monumental Properties of Ga. v. Frontier Disposal, 159 Ga. App. 35, 37 (2) (282 SE2d 660) (1981). But this was the only ground upon which she moved for a directed verdict. Therefore, instead of dismissing the motion for judgment notwithstanding the verdict, the trial court should have considered it, although on this issue only. See Famiglietti v. Brevard Med. Investors, 197 Ga. App. 164, 166-167 (2) (397 SE2d 720) (1990) (the longstanding rule is that a “j.n.o.v. must be based on grounds raised in the motion for directed verdict initially, for it is in effect only a new ruling on a renewed motion”).

The trial court’s error was harmless, however, because contrary to McClattie’s assertion, the Kowals presented some evidence that their possession of the disputed property was exclusive. “ ‘Exclusive possession’ means that the disseizor must show an exclusive dominion over the land and an appropriation of it to his own use and benefit.” Carter v. Becton, 250 Ga. 617, 618 (4) (300 SE2d 152) (1983) (citations omitted). The Kowals presented testimony that the property they claimed to have acquired by prescription was the small amount enclosed by their fence. This was “a type of possession which would characterize an owner’s use,” and thus was at least some evidence of exclusivity. Ga. Power Co. v. Irvin, 267 Ga. 760, 762 (1) (a) (482 SE2d 362) (1997).

Decided March 6, 2015

Reconsideration denied March 19, 2015

Allen W. Johnson, for appellant.

Barbara B. Claridge, Debra M. Bryan, for appellees.

3. Admission of photographs.

McClattie argues that the trial court erred by admitting over objection photographs showing that her yard was overgrown because the photographs were not relevant to any issue in the case. “[T]he admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” O’Neal v. State, 254 Ga. 1, 3 (3) (325 SE2d 759) (1985). Christopher Kowal testified that McClattie began complaining about the issues in the lawsuit only after he had asked her to maintain her yard. Given this testimony, McClattie has not shown that the trial court abused his discretion by admitting the photographs.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


author: Miller, Judge.

text:
    A14A1595.
    9766, LLC v. DWARF HOUSE, INC.
    (771 SE2d 1)
   Miller, Judge.

9766, LLC appeals from the trial court’s order dismissing its claims against Dwarf House, Inc. regarding an easement over Dwarf House’s property and alternatively granting summary judgment to Dwarf House on the easement claim. 9766 contends that the trial court erred by sua sponte dismissing its complaint on the grounds that it was not properly commenced or properly served and by precluding 9766 from introducing evidence to support its express easement claim. We agree that the trial court erred by dismissing 9766’s complaint. We also conclude that the trial court erred by granting summary judgment because unresolved issues remain as to whether 9766 had an express easement claim. Accordingly, we reverse and remand the case for the trial court to address the issues raised by the parties in connection with Dwarf House’s motion for summary judgment.

“We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.” (Citation omitted.) Herren v. Mitchell Elec. Membership Corp., 323 Ga. App. 517 (747 SE2d 63) (2013).

So viewed, the evidence shows that 9766 is solely owned by Dr. Jackie Williamson and owns property located at 9766 Highway 92 in Woodstock, where it leases space to a medical practice. Dwarf House operates a restaurant on property adjacent to the property owned by 9766. In June 1992, Ninety Two West, LTD. (“Ninety Two”), in connection with the pending sale of a portion of the Highway 92 property to Chick-fil-A, Inc., executed a revised easement agreement (the “Agreement”) granting to the Bank of Canton an easement for the purposes of vehicular access, ingress and egress over and across the property of Ninety Two. The Bank subsequently sold its property, with easement rights, to 9766. Chick-fil-A sold its portion of the property (subject to the easement) to Dwarf House, which began operating a restaurant there in April 1993.

In August 2012, the Dwarf House general manager informed the office manager of the medical practice that it would begin construction to expand the restaurant’s drive-through lanes and that the construction would begin in September 2012. That same month, 9766 filed an application for an interlocutory injunction and/or a temporary restraining order, alleging that the construction would cause great and irreparable harm because it would essentially close down 9766’s easement and make access for the medical practices’ patients extremely difficult. Following a hearing, the trial court denied 9766’s application for a temporary restraining order (“TRO”), thereby allowing Dwarf House to expand the drive-through lanes at its restaurant. The expansion of the drive-through lanes at Dwarf House eliminated the access road as a route of egress from the 9766 property to Indian Valley Drive because it made the access road a one-way thoroughfare.

Dwarf House then filed a motion for summary judgment, asserting that 9766 did not have an express or implied easement over the access road on Dwarf House’s property and that the sole basis for 9766’s application was its contention that it had an easement over that access road. In its response, 9766 argued that it was undisputed that from the time it acquired the property in 2001 until the dispute arose in 2012, 9766’s patients and clients had used the two-way access road for ingress and egress from 9766’s property to Indian Valley Drive. 9766 further argued that issues of fact remained regarding the location of the easement and whether Dwarf House had interfered with 9766’s use and enjoyment of the easement.

While the summary judgment motion was pending, 9766 filed an “Amended Complaint” seeking a declaratory judgment as to the extent of its easement rights over Dwarf House’s property, a permanent injunction requiring Dwarf House to remove the second drive-through lane and restore two-way traffic on the access road, damages for trespass, and attorney fees. Dwarf House answered, denying that 9766 was entitled to any relief.

After the parties submitted a pretrial order, the trial court conducted a hearing on Dwarf House’s motion for summary judgment. The trial court then issued an order sua sponte dismissing the complaint, finding that the action was not properly commenced or properly served. The trial court also addressed Dwarf House’s summary judgment motion, “[o]ut of an abundance of caution,” but failed to explicitly grant or deny the motion, concluding that the record did not show that 9766 was entitled to the relief sought in its application or amended complaint. The trial court concluded that 9766 did not have an express easement because counsel for 9766 had conceded this point at the hearing on the application for a TRO and that 9766 had failed to establish a prescriptive easement.

1. 9766 contends that the trial court erredby sua sponte dismissing its complaint on the ground that it was not properly commenced. We agree.

“We review a trial court’s sua sponte order of dismissal de novo.” (Citation omitted.) Haygood v. Head, 305 Ga. App. 375, 377 (1) (699 SE2d 588) (2010).

Here, the trial court ruled that the action was not properly commenced because it was not initiated with the filing of a complaint, but rather by the filing of an application for an interlocutory injunction and/or TRO. The application, however, was verified by the president of 9766 and included a description of the parties, the relevant facts, a copy of the Agreement, and a prayer for relief, which sought a TRO and a preliminary injunction restraining and enjoining Dwarf House from beginning construction on the easement. 9766’s failure to include its verified application within a document entitled “complaint” does not subject it to dismissal. It is well established that there is “no magic in nomenclature, and in classifying pleadings we will construe them to serve the best interests of the pleader, judging the pleading by its function rather than by its name.” (Citation and punctuation omitted.) Frost v. Frost, 235 Ga. 672, 674 (1) (221 SE2d 567) (1975); see also Rodriguez v. Nunez, 252 Ga. App. 56, 59 (3) (555 SE2d 514) (2001) (“There is no magic in the title given to [the] complaint; under our rules of pleading, it is substance and not mere nomenclature that controls.”). Thus, the trial court erred in concluding that 9766 could not seek damages, declaratory relief, or injunctive relief solely because it failed to label its application as a complaint.

2. 9766 contends that the trial court erred by sua sponte dismissing its complaint on the ground that it was not properly served. We agree.

The trial court ruled sua sponte that, although 9766 may have attempted to personally serve Dwarf House with the application, there was no evidence that 9766 personally served a summons and complaint. The record, however, includes an affidavit of service, dated September 17, 2012, stating that a summons and complaint were personally served on the agent for service of process for Dwarf House. Presumably, the document served was the application and not a “complaint.” Even if this somehow constituted insufficiency of process or insufficiency of service of process, Dwarf House waived those defenses by failing to include them in its answer. See Ahmad v. Excell Petroleum, 276 Ga. App. 167, 168 (1) (623 SE2d 6) (2005). Thus, the trial court erred by dismissing the complaint on the basis of improper service.

3. 9766 contends that the trial court erred by dismissing its complaint sua sponte on grounds not asserted by Dwarf House without giving 9766 notice and an opportunity to be heard. This contention relates to the dismissal based on improper commencement and service of the action, which we have held to be erroneous in Divisions 1 and 2. Accordingly, we need not address this enumerated error.

4. 9766 contends that the trial court erred by finding that there was no genuine issue for trial. We agree that the trial court erred by dismissing the case without addressing the easement issues raised by Dwarf House’s motion for summary judgment.

Although the trial court did not expressly grant or deny Dwarf House’s motion for summary judgment, it did conclude that the evidence did not entitle 9766 to the relief sought in its application or amended complaint. We will therefore review the court’s ruling under the summary judgment standard.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.

(Citation omitted.) Herren, supra, 323 Ga. App. at 517.

(a) Admission in judicio. The trial court ruled that, during the hearing on the application for a TRO, 9766 conceded that it did not have an express easement. As a result, 9766 was precluded from introducing evidence to controvert this admission.

The statement at issue occurred during the TRO hearing when 9766’s counsel was discussing the fact that the patients of the medical practice had been using the access road since 2001 without complaint. Counsel then stated:

The problem we have here is when they modified that access drive, although we don’t have an easement per se, I would argue that that would be an implied easement because of the duration of the use of that property. And that paragraph also allows Dr. Williamson reasonable access to — across and over Chick-fil-A’s property for the purpose of ingress and egress. It’s almost as if it were from an implied easement because of the duration and use that actually has turned into a prescriptive easement. But it has to be reasonable access, and that’s what it says, that whole paragraph. And to us that’s not reasonable.

Contrary to the trial court’s ruling, 9766’s counsel did not admit that 9766 had no express easement over the Dwarf House property, but that it arguably had no express easement over the access road.

“Admissions of fact, made by a party’s counsel during a hearing or trial, are regarded as admissions in judicio and are binding on the party.” (Punctuation and footnote omitted.) Hollberg v. Spalding County, 281 Ga. App. 768, 774-775 (2) (b) (637 SE2d 163) (2006). But the rule applies only to statements of fact, not to opinions or legal conclusions. Kothari v. Patel, 262 Ga. App. 168, 175-176 (4) (585 SE2d 97) (2003). Counsel’s admission that the Agreement did not provide an express easement over the access road was a legal opinion, not a fact. See id. (counsel’s admissions that contracts were enforceable was a legal opinion, not a fact). Accordingly, 9766 is not bound by that admission and the trial court erred by concluding otherwise.

(b) The Agreement. Dwarf House sought summary judgment on one issue — whether 9766 had an easement over the access road. Because the trial court incorrectly ruled that 9766 was precluded from introducing evidence to establish that it had an express easement, the trial court never construed the terms of the Agreement to resolve this issue. We therefore do not construe those terms here. “[T]his court is for the correction of errors, and where the trial court has not ruled on an issue, we will not address it.” (Citation and punctuation omitted.) Municipal Elec. Auth. of Ga. v. Gold-Arrow Farms, 276 Ga. App. 862, 870 (3) (625 SE2d 57) (2005).

Decided March 19, 2015.

Carol V. Clark, James B. McClung, for appellant.

Hunton & Williams, Matthew J. Calvert, Brooke F. Voelzke, for appellee.

The trial court should have considered the arguments and evidence of both parties related to 9766’s express easement over the Dwarf House property prior to ruling on the motion. Accordingly, we reverse and remand for the trial court to address those matters and issue a definitive ruling on Dwarf House’s motion for summary judgment.

Judgment reversed and case remanded.

Doyle, P. J., and Dillard, J., concur.

       Dwarf House asserts that its correct name is Team Dwarf House, Inc.

       Dwarf House takes no position on this enumerated error.


author: DOYLE, Presiding Judge.

text:
    A14A1604.
    CARNETT’S PROPERTIES, LLC v. JOWAYNE, LLC.
    (771 SE2d 5)
   DOYLE, Presiding Judge.

Carnett’s Properties, LLC (“Carnett”), filed the instant action for breach of contract and declaration of a special lien, alleging that JoWayne, LLC (“JoWayne”), failed to pay sums due under a maintenance agreement related to storm water runoff and water detention needs of the two entities’ property. After the parties filed dueling motions for summary judgment, the trial court granted JoWayne’s motion, finding that JoWayne was not liable under the contract for the sums in question. Carnett appeals, arguing that the trial court erred by finding that the maintenance agreement did not contemplate that JoWayne would be liable for construction of an additional detention pond. For the reasons that follow, we reverse and remand for further proceedings.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts warrant judgment as a matter of law. We review the evidence and record de novo, construing all reasonable conclusions and inferences in favor of the nonmovant.

The construction of a contract is a question of law for the court. This Court construes contracts so as to give them the meaning which will best carry out the intent of the parties. In doing this, we must look at the instrument as a whole and consider it in light of all the surrounding circumstances. Thus, the favored construction will be that which gives meaning and effect to all the terms of the contract over that which nullifies and renders meaningless a part of the document. If the trial court determines that the language is clear and unambiguous, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning.

So viewed, the evidence shows that in October 2002, Carnett sold to JoWayne (which operates a daycare center) a parcel of approximately 1.69 acres of its 13.85-acre property, and at that time, the parties executed a “Declaration of Joint Easement and Joint Maintenance Agreement” (“the Agreement”). In the Agreement, Carnett provided JoWayne with a drainage easement over the property it retained after the sale, and JoWayne agreed to pay 12 percent of costs associated with the maintenance, upkeep, redesign, or improvement of the detention facility serving the total 13.85 acres of Carnett’s original property.

Over the next few years, Carnett sold off additional portions of the remaining acres, entering into similar easements and agreements with those new property owners. Because of various regulations, Carnett added a detention pond to the property in order to service all of the various property owners of the 13.85 acres. The cost of this expansion was $237,442 of which 12 percent totaled $28,493.04. Carnett invoiced JoWayne for the 12 percent, but JoWayne refused to pay, contending that the agreement did not encompass the construction of a new detention pond into which its drainage did not flow.

Carnett brought suit claiming breach of contract, and the parties filed cross-motions for summary judgment. The trial court granted summary judgment to JoWayne finding that the Agreement did not contemplate the construction of a new, separate detention pond. The trial court also found that the Agreement only referred to “the Detention Facility,” such that the plain language concluded that JoWayne was liable only for 12 percent of the sums related to the maintenance and upkeep of the then-existing detention pond and not a newly constructed detention pond.

Garnett argues on appeal that the trial court erred by ruling that the contract does not contemplate the construction of additional detention ponds.

The cardinal rule of contract construction is to ascertain the intention of the parties. If the terms of a contract are plain and unambiguous, the contractual terms alone determine the parties’ intent. A dictionary can supply the plain and ordinary meaning of a term, but a dictionary does not always provide a complete answer. If a term used in a contract is of uncertain meaning and may be fairly understood in more ways than one, it is ambiguous, and we apply the rules of contract construction in an effort to resolve the ambiguity. The proper construction of a contract is a question of law for a court to determine.

The trial court used a number of pages to explain the meaning of the word “the” before determining that the detention “facility” for which JoWayne was responsible under the contract was limited to the detention pond already in use. This conclusion, however, “ignores an equally plausible and opposite construction of the [Agreement] language,” i.e., that “facility’ means any portion of the two properties used for storm water detention to meet the needs of the two properties and their future purchasers.

While it is correct that the contract initially describes the first detention pond, the contract later states that the parties

do mutually covenant and agree that all expenses associated with any upkeep and maintenance of the detention facility including, but not limited to, any redesign or expansion of the detention facility to meet the future needs of the Cornett Property, the JOWAYNE property[,] and any other properties currently using the Garnett Detention Facility as of the date of this agreement shall be shared by the owner of the JOWAYNE property and the Garnett property. Each of the parties to this agreement acknowledge that the total number[s] of acres being served by the Carnett’s Detention Facility is 13.85 acres.

The contract specifically references anticipated future development of the remaining Carnett property and explains that those future owners would contribute to detention facility costs under a similar percentage share as JoWayne.

Other terms in the contract lend support to the conclusion that “facility” could mean any number of ponds in addition to or in place of the original one, i.e., “expansion,” “redesign,” and “improvement,” which are anticipated activities for which JoWayne accepted the responsibility to pay. Redesign, for instance, means “to revise in appearance, function, or content” or to “design (something) again in a different way.” And the contract did not limit “upkeep and maintenance” only to those listed possibilities, which renders erroneous the trial court’s conclusion that the parties’ failure to include “construction of a new separate detention pond” in the list of actions constituting “maintenance and upkeep” was an intentional omission that relieves JoWayne of liability for such costs.

An ambiguity is defined as duplicity, indistinctness, an uncertainty of meaning or expression used in a written instrument, and also signifies of doubtful or uncertain nature; wanting clearness or definiteness; difficult to comprehend or distinguish; of doubtful purport; open to various interpretations.

Thus, the trial court’s conclusion that the language of the contract was clear and unambiguous was incorrect. While it purported to apply the rules of construction to then reach the same conclusion based on the contract’s statement that the facility served the needs of both Carnett and JoWayne’s property in order to trigger payment by JoWayne, this construction presupposes one alternative definition of facility — that it is limited to only one pond — and excludes the equally viable definition that facility in this instance could refer to a series of ponds. Moreover, the fact that JoWayne’s water does not drain into the second pond does not mean that the second pond is not servicing the property because if JoWayne’s storm water was not being detained in the first pond, construction of the second pond may not have been necessary.

Decided March 19, 2015.

Thompson, Sweeny, Kinsinger & Pereira, V. Lee Thompson, Jr., Frank Hartley, Sarah T. Chamberlin, for appellant.

Freeman, Mathis & Gary, Michelle Y. Terry, for appellee.

Thus, we reverse the grant of summary judgment to JoWayne and remand the case for further proceedings.

Judgment reversed and case remanded.

Miller and Dillard, JJ., concur.

        Bank of North Ga. v. Windermere Dev., 316 Ga. App. 33, 34 (728 SE2d 714) (2012).

       (Citations and punctuation omitted.) Primary Investments, LLC v. Wee Tender Care III, Inc., 323 Ga. App. 196, 198 (1) (746 SE2d 823) (2013), quoting OCGA § 13-2-1.

       (Citations and punctuation omitted.) Garrett v. Southern Health Corp. of Ellijay, Inc., 320 Ga. App. 176, 182 (1) (739 SE2d 661) (2013).

        Amah v. Whitefield Academy, Inc., 331 Ga. App. 258, 260 (1) (770 SE2d 650) (2015). See also Webster’s Third New International Dictionary 812-813 (1981) (defining facility as “something ... that is built, constructed, installed, or established to perform some particular function or to serve or facilitate some particular end”).

       (Emphasis supplied.)

       See Webster’s Third New International Dictionary at 1902 (1981).

       Oxford Dictionaries Online at http://www.oxforddictionaries.com/us/definition/american_ english/redesign?q=Redesign.

       See Amah, 331 Ga. App. at 261 (1).

       (Punctuation omitted.) Krammerer Real Estate Holdings, LLC v. PLH Sandy Springs, LLC, 319 Ga. App. 393, 396 (1) (740 SE2d 635) (2012), overruled on other grounds, Artson, LLC v. Hudson, 322 Ga. App. 859, 862, n. 1 (747 SE2d 68) (2013).

       See Higginbotham v. Knight, 312 Ga. App. 525, 528 (719 SE2d 1) (2011) (“If the contract is ambiguous, a court must apply the pertinent rules of contract construction to resolve the ambiguity and determine the intent of the parties. But if an ambiguity remains even after the application of the rules of construction, the ambiguity must be resolved at trial by a jury.”) (citations omitted).