author: McMillian, Judge.

text:
    A14A1568.
    TAYLOR v. THE STATE.
    (771 SE2d 224)
   McMillian, Judge.

Travis Taylor was indicted jointly with Shawn Kitchens, Edward Collier, Shamarques Watkins, and Jerald Johnson on two charges of aggravated assault and one charge each of murder, felony murder, participation in criminal street gang activity, and possession of a firearm during the commission of a felony. These charges arose out of a confrontation that erupted into crossfire on July 27, 2010 in Macon, Georgia. Tavish Faulks and Rodrion Gary were shot during that incident, and Gary’s injuries were fatal. Collier and Watkins, who was also injured in the incident, each entered guilty pleas before the jury was selected and sworn, and Johnson entered a guilty plea at trial during the second day of testimony. Taylor and Kitchens were tried jointly, and the jury convicted both men on the charges of aggravated assault, possession of a firearm during the commission of a felony, and participation in criminal street gang activity. The jury also convicted Kitchens on the charge of felony murder but acquitted him of malice murder. Taylor was acquitted of any murder charges. The Supreme Court of Georgia recently affirmed Kitchens’ convictions in Kitchens v. State, 296 Ga. 384 (768 SE2d 476) (2015). Taylor now appeals his convictions, following the trial court’s denial of his motion for new trial.

Viewed in the light most favorable to the verdict, the evidence at trial showed that the “Unionville Crips” (a/k/a the “Westside Crips”) and “Bloomfield” (a/k/a the “Black Team”) were rival Macon gangs. At the pertinent time, Collier lived with his wife at 2696 Village Green Lane, off Bloomfield Road in Macon. The day of the shooting, Collier told Tamiko Waller that “Unionville [was] coming to invade Bloomfield.” Collier then drove his van to retrieve Taylor, Watkins, Kitchens, Kitchens’ cousin, “P-Dub,” and another man and brought them back to his house, which was in the Bloomfield neighborhood. Kitchens, Watkins, Taylor, and P-Dub were identified at trial as associating with the Unionville Crips. When Collier picked the men up that day, Taylor was carrying a little black tote bag. Following the shooting, that bag was found in a shed behind Collier’s house, with a gun inside.

Collier and his wife, who was known as the “Candy Lady,” ran a business out of their house selling chips, candy, cold drinks, and cigarettes; people came to their back porch to purchase these items. Taylor, Kitchens, Watkins, and Johnson stayed at the Colliers’ house that afternoon, playing cards in the backyard. Waller and her friend Jakira Slaughter were also at the Colliers’ house that day. At some point, Tavish Faulks and Emanuel Stroud came to the Colliers’ house to purchase cigars. After they arrived, Waller saw one of the Unionville men pull out a gun and put it in his lap. Faulks testified that while he was still on the porch, he saw Kitchens and everyone but Taylor with their guns out and visible. Other people associated with Bloomfield came to the street in front of the Colliers’ house, and when Waller saw the “Bloomfield boys” arrive, she believed that “something was about to go wrong.”

After Faulks and Stroud made their purchases and left the Colliers’ back porch, Kitchens confronted Stroud about a MySpace post in which Stroud had referred to Kitchens as a “crab,” a term Stroud used when he did not like someone. Kitchens challenged Stroud to fight him and later told the others in his group, “If [Faulks] jumps in, shoot.” The evidence indicated that Faulks tried to defuse the situation by urging Stroud to walk away, which he did. When Collier overheard the argument begin, he told Stroud, Faulks, and Kitchens to take their dispute elsewhere. Although they began to move away, shooting erupted before they left the property. After one person began shooting, Collier said “the rest of them started running and shooting.” When the shooting began, Waller and her friend ran inside the Colliers’ house and hid. Collier heard approximately seven to eight gunshots; Faulks said he heard about seventeen shots. During the exchange of gunfire, Faulks was hit in the head and the wrist, Watkins was shot in the foot, and Gary, who had arrived on the scene, was shot in the chest and killed.

Collier, Watkins, Waller, and Slaughter all stated that they saw Taylor with a gun at the time of the shooting. Waller said that after the shooting ended, she saw Taylor come into the Colliers’ house holding a gun and wiping it off on his shirt. Although at trial, Faulks said that he saw everyone but Taylor with a gun on his lap before the shooting began, he admitted that he told police shortly after the shooting, that Taylor had a gun that day, a chrome .380. The State presented forensic evidence that .380-caliber semi-automatic shell casings were found in the Colliers’ yard.

Detective Sedrick Pinson of the Macon Police Department’s Gang Investigation Unit testified about the Unionville Crips and Bloomfield gangs. He said that gangs in Macon were not like the “Girl Scouts of America.” They engaged in activities involving acts of violence, such as murder, shootings, drive-by shootings, and carjackings. He described social media websites such as MySpace as “the fuel that sparks the energy” for the violence between gang members and said that in almost every major gang-related case, the police investigated social media outlets.

Additionally, Collier testified that bringing Taylor and the others to his home had been “wrong,” and had “started [the] whole thing.” Watkins testified that it was “not a very smart idea” and was also “quite dangerous” to go into Bloomfield territory because the Union-ville Crips and Bloomfield do not get along.

1. Taylor first asserts that his convictions for the aggravated assault of Rodrion Gary, possession of a firearm during the commission of a felony, and participation in criminal street gang activity should be set aside and a directed verdict of not guilty entered because jeopardy as to those charges attached when he was found not guilty of malice murder and felony murder. Thus, he contends that his other convictions subjected him to double jeopardy. But the prohibition against double jeopardy is not implicated in this case. No successive prosecution of the same offense occurred; rather, Taylor was tried for all the crimes in the same prosecution in accordance with OCGA § 16-1-8 (a). Similarly, the case presents no issue of multiple convictions for crimes included in one another. See Williams v. State, 288 Ga. 7, 8 (2) (700 SE2d 564) (2010) (setting forth the three governmental abuses against which the bar against double jeopardy was designed to protect); OCGA § 16-1-7 (a) (allowing prosecution, but not conviction for each crime arising from the accused’s conduct, if one crime is included in the other).

But although Taylor framed his enumeration in the language of double jeopardy, the gist of his argument is that the verdict is inconsistent and/or contains mutually exclusive results. “However, since Georgia rejected the ‘inconsistent verdict rule’ in Milam v. State, 255 Ga. 560[, 562] (2) (341 SE2d 216) (1986), a defendant cannot attack as inconsistent a jury verdict of guilty on one count and not guilty on a different count.” (Punctuation omitted.) Coleman v. State, 286 Ga. 291, 295-296 (4) (687 SE2d 427) (2009) (upholding conviction for possession of a firearm during commission of aggravated assault where he was acquitted of aggravated assault). See also Lawrence v. State, 274 Ga. 794 (2) (560 SE2d 17) (2002) (upholding conviction for possession of a firearm in commission of a felony of murder even though defendant was acquitted of murder).

Moreover, Taylor has failed to demonstrate that this case falls into the recognized exception to this rule, which arises “when instead of being left to speculate about the unknown motivations of the jury the appellate record makes transparent the jury’s reasoning why it found the defendant not guilty of one of the charges [.]” Turner v. State, 283 Ga. 17, 20-21 (2) (655 SE2d 589) (2008). Although Taylor argues that by acquitting him of the murder charges the jury must have accepted his defense of justification, nothing in the record demonstrates that the jury made such a finding. Rather, the verdict form in this case “shows no more than ‘guilty’ or ‘not guilty’ as to each count of the indictment,” and thus fails to elucidate the jury’s reasoning. Lee v. State, 300 Ga. App. 214, 218 (2) (684 SE2d 348) (2009). And this Court may not speculate about the jury’s reasoning.

[A]ppellate courts cannot know and should not speculate why a jury acquitted on one offense and convicted on another offense. The reason could be an error by the jury in its consideration or it could be mistake, compromise, or lenity. ... [A]n individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury’s deliberations that the courts generally will not undertake.

(Citations and punctuation omitted.) Turner, 283 Ga. at 20 (2). Therefore, we find no basis for reversal on this ground.

2. Taylor also asserts that the evidence was insufficient to support his convictions. In considering that argument, the issue before us “is not whether an acquittal on one charge would logically necessitate acquittal on another charge on which the jury convicted the defendant; rather, the... question is whether the evidence viewed in favor of the conviction was sufficient to support the guilty verdict.” (Citations and punctuation omitted.) State v. Robinson, 275 Ga. App. 117, 118 (619 SE2d 806) (2005).

(a) Aggravated assault — As previously noted, our Supreme Court has affirmed Kitchens’ convictions for the felony murder and aggravated assault in this case. Taylor argues that because no one testified that they saw him shoot a gun, the evidence must show that he actually did something in aid of the actual shooters in order to sustain his conviction for aggravated assault.

The jury was charged that Taylor could be convicted as a party to the crime of aggravated assault. “A party to a crime is one who intentionally aids or abets the commission of the crime, or intentionally advises, encourages, hires, counsels, or procures another to commit the crime. OCGA § 16-2-20 (b) (3), (4).” (Citation omitted.) Wright v. State, 296 Ga. 276, 284 (3) (766 SE2d 439) (2014). And “[wjhether a person is a party to a crime may be inferred from that person’s presence, companionship, and conduct before, during, and after the crime.” (Citation and punctuation omitted.) Conway v. State, 281 Ga. 685, 687 (1) (642 SE2d 673) (2007). Additionally, “it is the jury’s duty as factfinder to weigh the evidence presented at trial and to determine the credibility of the witnesses. It is not obligated to believe any witness, and it may accept or reject any portion of a witness’s testimony.” (Citation omitted.) McKinney v. State, 293 Ga. App. 419, 420-421 (1) (667 SE2d 210) (2008).

Here, the jury could have concluded that Taylor accompanied the others to Collier’s house with the intent to invade the Bloomfield neighborhood and that he brought a gun with him in his black bag for that purpose. His co-defendants and other witnesses testified that he had a gun at the time of the shooting, supporting an inference that he displayed the gun, even if he did not shoot it, in response to Kitchens’ instructions to shoot if Faulks “jump[ed] in.” After the shooting, he came into the house, wiping off the gun. Even if the record contains no direct evidence indicating Taylor shot his gun, the circumstantial evidence was sufficient to convict him as a party to the crime of aggravated assault as to both Faulks and Gary. Luke v. State, 324 Ga. App. 531, 532 (2) (751 SE2d 180) (2013). And the issue of whether this circumstantial evidence excluded any reasonable hypothesis other than Taylor’s guilt was for the jury. Graham v. State, 320 Ga. App. 714, 720-721 (2) (740 SE2d 649) (2013).

“Likewise, the issues of witness credibility and justification are for the jury to decide, and the jury is free to reject a defendant’s claim that he acted in self-defense.” White v. State, 287 Ga. 713, 715 (1) (b) (699 SE2d 291) (2010). Further, contrary to Taylor’s argument, we find more than sufficient evidence to corroborate the testimony of his co-defendants. “Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict.” (Citation and punctuation omitted.) Threatt v. State, 293 Ga. 549, 551 (1) (748 SE2d 400) (2013).

(b) Possession of a firearm — Taylor does not specifically argue that the evidence was insufficient to support his conviction for possession of a firearm during the commission of a felony, which the indictment alleged as felony or malice murder. However, we find that the same evidence that supported his conviction as a party to the crime of aggravated assault would have been sufficient to find him guilty as a party to the crime of felony murder, even though the jury did not convict him of that crime. Thus, the evidence was sufficient to support Taylor’s conviction on the possession charge.

(c) Criminal street gang activity — Taylor asserts that the evidence was insufficient to support his conviction for participation in criminal street gang activity because the State failed to show that he was taking part in any kind of gang activity, that he was associated with two or more persons constituting a gang, that he was associated with a group that engaged in criminal gang activity, or that his participation was intended in any way to further the interests of the Unionville Crips.

However, the Supreme Court has already decided most of these issues against Taylor’s arguments when it affirmed Kitchens’ conviction for criminal street gang activity, because the same gang-related evidence was introduced against both Kitchens and Taylor at trial. Kitchens, 296 Ga. at 385 (1). The Supreme Court’s affirmance of Kitchens’ conviction on this charge necessarily encompassed findings that gang activity was involved in the incident, that Kitchens was associated with two or more persons engaged in gang activity, that the Unionville Crips were engaged in criminal street gang activity, and that the felony murder was committed in furtherance of the interests of that gang.

The only issue remaining then is whether Taylor was associated with the Unionville Crips. We note that the Supreme Court found the evidence showed that Kitchens, Taylor, Watkins, and Johnson were all associated with the Unionville Crips gang. Kitchens, 296 Ga. at 385 (1). Detective Pinson testified that Taylor was associated with the Crips, and Watkins testified that all that was required to associate with the Crips was “to claim it,” by “just hanging” in the neighborhood or wearing the gang’s color, which was blue. Although we could locate no evidence in the record regarding the color Taylor was wearing that day, the evidence showed that Taylor had “hung” with Watkins and the other Unionville Crips previously. And he was “hanging” with them when he armed himself to travel in a group to the Bloomfield neighborhood that day. Moreover, the jury could have interpreted Taylor’s actions that day as his way of claiming affiliation with the Crips. Accordingly, we find that the evidence was sufficient to support Taylor’s conviction for participation in criminal street gang activity.

3. Taylor further contends that the trial court erred in denying his motion to sever at the beginning of trial. The attorneys for Watkins, Johnson, Taylor, and Kitchens all moved to sever their trials shortly before the case was scheduled to begin, and the trial court held a joint hearing on the issue. Taylor’s attorney argued at that time that Taylor’s defense conflicted with the other defendants who were alleging self-defense, because he was claiming that he was not involved at all. Additionally, he argued he was prejudiced by these antagonistic defenses. Even though Taylor was tried jointly with only Kitchens, he continues to assert that severance was appropriate based on the defenses raised by all the co-defendants below. We find no merit to his arguments.

As the Supreme Court found in Kitchens’ appeal,

[i]t is well-settled that a trial court has broad discretion to grant or deny a motion for severance. See OCGA § 17-8-4. In ruling on a severance motion, the trial court should consider: (1) the likelihood of confusion of the evidence and law; (2) the possibility that evidence against one defendant may be considered against the other defendant; and (3) the presence or absence of antagonistic defenses.

(Citations omitted.) Kitchens, 296 Ga. at 386 (3). Moreover, “[t]he burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing that a joint trial would lead to prejudice and a consequent denial of due process.” (Citation and punctuation omitted.) Id.

We note that the Supreme Court rejected Kitchens’ argument that his trial should have been severed from Taylor’s due to their antagonistic defenses. Kitchens, 296 Ga. at 386 (3). The Supreme Court found little likelihood of jury confusion in this case because there were only two defendants at trial and no difference in the law applied to the two defendants. Id. at 387 (3). Additionally, as the Court noted, the jury addressed the defendants’ indictments separately and returned a separate verdict for each defendant, in which Taylor was acquitted of the murder charges while Kitchens was convicted of felony murder. Moreover, Taylor has failed to demonstrate how his defense was antagonistic to Kitchens, and in any event, antagonistic defenses alone are not sufficient to mandate severance. Id. Based on the Supreme Court’s findings and Taylor’s arguments, we find that the trial court did not abuse its discretion in denying Taylor’s motion to sever.

4. Taylor raises two enumerations of error regarding his sentencing: (1) that the sentence imposed by the trial court constituted cruel and unusual punishment and (2) that the trial court erred in considering his juvenile record for purposes of sentencing. We find no error.

(a) Cruel and unusual punishment — Taylor was sentenced to twenty years in confinement for the aggravated assault on Gary, followed by twenty years for the aggravated assault on Faulks (with five years in confinement and the remainder on probation), followed by an additional fifteen years of probation for the charge of participation in criminal street gang activity and another five years probation for the possession charge, to run consecutively to the other sentences. Each of these sentences was within the statutory range for the crimes of which Taylor was convicted. OCGA §§ 16-5-21; 16-15-4; and 16-11-106.

If the defendant’s sentence falls within the statutory range of punishment set by the legislature, a presumption arises that the sentence does not violate the Eighth Amendment, and the “presumption remains until a defendant sets forth a factual predicate showing that such legislatively authorized punishment was so overly severe or excessive in proportion to the offense as to shock the conscience.”

(Citation omitted.) Bray v. State, 330 Ga. App. 768, 775 (3) (768 SE2d 285) (2015). We find that Taylor has failed to overcome this presumption under the facts of this case, and accordingly, this enumeration is without merit.

(b) Juvenile record — Taylor asserts that the trial court erred in considering his juvenile record, over his objection, for purposes of “enhancing and setting his sentence.” In her order denying Taylor’s motion for new trial, the trial judge noted that she “considered many factors in setting [Taylor’s] sentence, least of which was his juvenile record,” and she cited Burrell v. State, 258 Ga. 841, 844 (7) (376 SE2d 184) (1989), as support for the proposition that “[t]he Supreme Court of Georgia has long recognized that juvenile records could be considered in the sentencing phase of a capital case.” In approving the use of juvenile records in the sentencing phase of that case, the Supreme Court in Burrell relied upon the version of former OCGA § 15-11-38 (b) that was in effect in 1989. That provision expressly allowed the use of juvenile records in dispositional proceedings after a defendant was convicted of a felony. Compare Miller v. State, 231 Ga. App. 869, 870 (2) (501 SE2d 42) (1998) (trial court improperly used juvenile dispositions as felony convictions for the purpose of mandatory maximum sentencing pursuant to OCGA § 17-10-7 (c)).

Decided March 26, 2015.

Robert M. Bearden, Jr., for appellant.

K. David Cooke, Jr., District Attorney, MyraH. Tisdale, Assistant District Attorney, for appellee.

In 2000, the legislature reordered, renumbered, and revised certain provisions relating to the juvenile courts. At that point, OCGA § 15-11-38 (b) was re-codified as OCGA § 15-11-79.1, and that statute provided that juvenile court dispositions could be used, inter alia, in “sentencing in felony offenses,” and the “records of dispositions and evidence shall be available to district attorneys and superior court judges and the accused and may be used in the same manner as adult records.” Ga. L. 2000, pp. 20, 91-92, § 1. This statute was in effect at the time of Taylor’s sentencing, and thus the trial court properly considered his juvenile court records in sentencing him. See also former OCGA § 17-10-1 (e) (“In any case involving a felony in which the defendant previously appeared before a juvenile court, the records of the dispositions of the defendant as well as any evidence used in any juvenile court hearing shall be available to the district attorney, the defendant, and the superior court judge in determining sentencing as provided in Code Section 15-11-79.1.”).

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur.

       Gary’s first name is spelled as “Rodrion” in the indictment, the transcript of the hearing on the motion for new trial, and the trial court’s order on that motion, but it was spelled as “Rodgeren” in the trial transcript. We adopt the first of these spellings.

        Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       However, Watkins testified that Taylor was not associated with the Crips; instead, he had just been invited to “chill” with the others that day.

       Faulks, Gary (the murder victim), and Stroud were identified as associating with Bloomfield.

       Moreover, to the extent Taylor is asserting that the trial court erred in refusing to grant a new trial on what is commonly called “the general grounds,” we note that on appeal, “this court can only review the case under the standard espoused in Jackson[, 443 U.S. 307], to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict.” (Citation and punctuation omitted.) Lewis v. State, 296 Ga. 259, 261 (3) (765 SE2d 911) (2014).

       Although Taylor asserts that his defense was that he was not involved in the crimes at all, we note that Taylor argued in support of his inconsistent verdict argument that he also raised a justification defense at trial.

       The current version of this provision is codified at OCGA § 15-11-703. Ga. L. 2013, p. 294, § 1-1/HB 242. See also OCGA § 17-10-1 (e), as amended by Ga. L. 2013, p. 294, § 4-17/HB 242.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A14A1840.
    DAVIS v. THE STATE.
    (771 SE2d 232)
   BARNES, Presiding Judge.

A jury convicted Javarious Demario Davis of possession of a firearm during the commission of a felony and five counts each of armed robbery and aggravated assault. Following the denial of his motion for new trial, he appealed, arguing that the trial court erred in denying his motion to sever his trial from that of his three co-defendants and in failing to exclude similar transaction evidence against one of his co-defendants. He further argues that he was denied his constitutional right to be present during a critical stage of his trial.

Viewed in the light most favorable to the verdict, the evidence at trial showed that four men in a grey or silver Chevrolet with a Kentucky license plate pulled up to a construction site where five Hispanic workers were taking a lunch break. One man remained in the car while three others got out. While the workers thought at first that the men were approaching to offer them work, one man pointed a black handgun at them and demanded their wallets. Another man acted as a look-out, and the fourth man, later identified as Davis, took the wallets from each worker and extracted a total of $800 to $925, including a $2 bill and a 20-peso bill. Davis tossed the wallets on the ground, and the robbers left. The workers, none of whom spoke English, called their foreman, who called 911, and the police responded to the scene. One of the workers had written the license plate number on a two-by-four with a carpenter’s pencil, and the police issued a be-on-the-lookout for a gray or silver Chevrolet with a particular Kentucky license plate.

Apatrol officer saw the car parked in the driveway of a residence a mile or two from the robbery site. Because there were “a lot of people outside,” she parked with the property in view, called it in, and waited for more officers to arrive. Another officer rode his motorcycle by the house and saw four men and two women standing in front of the car with the Kentucky plates. After additional back-up officers arrived, they converged on the residence, and the men attempted unsuccessfully to flee or hide in the house.

The police drove four of the five victims to the house where the car was located, while one victim waited at the site to make sure their tools were not stolen in their absence. The victims identified three of the four men and the car on-site, and following their arrest, the police found cash on three of the four men, including Davis. One co-defendant also had two $2 bills among the American money, and another had a 20-peso bill. A search of the car uncovered a black handgun hidden under the carpet on the front passenger side. Davis’s aunt had rented the car and had lent it to him around the time of the robbery.

The four men were indicted for possession of a firearm during the commission of a felony and five counts each of armed robbery and aggravated assault, and Trenard Bivins was acquitted of all charges. The other three, Davis, Ryan Davis, and Shannon Bradley, were convicted on all counts. After the trial court merged the aggravated assault counts into the armed robbery counts, Ryan Davis and Bradley were sentenced to life as recidivists, and Javarious Davis was sentenced to fifteen years to serve concurrently on each armed robbery count, plus five years consecutively on the firearms charge, which the court suspended.

1. Although Davis does not challenge the sufficiency of the evidence, we find that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that he was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Davis argues that (a) the trial court erred in denying his motion to sever or alternatively to exclude the similar transaction evidence, and (b) he was denied his constitutional right to be present at all critical stages of his trial because he left the courtroom while the State presented similar transaction evidence against his co-defendant Ryan Davis. The record shows, however, that Davis never moved to sever his trial from his co-defendants’ trial or to exclude the similar transaction evidence, and that he waived his right to be present and acquiesced to his absence while the State presented the similar transaction evidence against Ryan Davis.

The State filed a notice of its intent to present evidence that co-defendant Ryan Davis had committed similar transactions. During a motions hearing on the day before trial began, the trial court heard and addressed the State’s motion in limine to prevent the defendants from referring to the victims’ immigration status. The trial court then referred to a ruling made in regard to co-defendant Bivins only. Davis asked to be included in that ruling as he had moved to adopt the motions of any co-defendant, and the trial court responded that it did not recognize such motions but required each defendant to file a specific motion for the relief he sought. Then, after addressing issues of trial mechanics with the four co-defendants, the trial court asked counsel for everyone but Ryan Davis whether they saw any need for their clients to be present during the rest of the hearing, which would address the State’s motion to introduce evidence of similar transactions against Ryan Davis. No one objected, and the trial court excused Javarious Davis, Bivins, and Bradley, who then left the courtroom. Counsel for Bradley confirmed that he was excused until the next morning, and apparently also left the courtroom.

The trial court proceeded to hear the State’s motion to present the similar transaction evidence against Ryan Davis. It appears from the record that counsel for Bivins remained, but the record does not establish whether or not counsel for Javarious Davis remained during the similar transaction hearing. The State proffered that it could present evidence that a similar group of men committed two additional armed robberies of Hispanic construction workers with a black handgun ten or fifteen minutes before the robbery at issue, both less than eight miles from the one in the current case, that the robbers were in a car with a blue and white out-of-state license, and that a Kentucky license plate is blue and white. Additionally, the State proffered that after a detective who was working on these earlier robberies heard about the arrests in the current case with such similar facts, he presented the victims with a photographic lineup, and both identified Ryan Davis as one of the men who had robbed them. The trial court found that the prior robberies were similar enough in time, in geographic location, and in other details so that evidence about them was admissible in the current case to establish course of conduct, common plan or scheme, and identity.

During the trial itself, the court notified the parties that it would instruct the jury on the limited purpose of the similar transaction evidence as soon as anyone notified it that introduction of that evidence was imminent. Before the State called the first of the two similar transaction witnesses, it asked the court to give the limiting instruction to the jury, and the court took a brief recess. When court reconvened but just before the jury returned, counselfor co-defendant Bradley moved the court to sever the case “if you’re going to allow a similar, because what it does, it’s a spillover with my client. And he’s not charged with this. And it’s a similar against him. And the jury may not be able to differentiate between the two.” The jury returned to the courtroom at that moment, after which the following exchange took place:

THE COURT: Okay. I’ll deny that, but I’ll have to try to make sure that’s clear.
[BRADLEY’S COUNSEL]: Or excuse us, please.
[J. DAVIS’S COUNSEL]: Ditto for Davis.
THE COURT: So is that acceptable with all of you, I mean, if I do that?
[J. DAVIS’S COUNSEL]: The “S” word?
THE COURT: Well, no, just for now.
THE DEPUTY SHERIFF: All jurors are present.
THE COURT: Okay. Well, we may go out again. Hold on a second. They’ve asked me something here. Quickly confer. (Brief pause)
[BRADLEY’S COUNSEL]: Yes.
THE COURT: [Javarious Davis’s counsel], you’re onboard with that?
[J. DAVIS’S COUNSEL]: Yes.

The court sent the jury out again, and then stated:

THE COURT: Okay. The record shall reflect that three of the defendants, Shannon Bradley, Javarious Davis[,] right, and Bivins, Trenard Bivins, and their counsel have all asked to be excused from this portion, which is the similar transaction evidence as to Mr. Ryan Davis only. Correct, everybody?
[BIVINS’S COUNSEL]: Yes, sir.
THE COURT: You’ve asked to be excused. And all of you agree that it’s okay and you’re going to leave Mr. Evans and his client here alone for this purpose; right?
[BIVINS’S COUNSEL]: Yes, sir.
THE COURT: Okay. You may be excused.
[BRADLEY’S COUNSEL]: We just request one — you’re going to charge the jury accordingly on the similar?
THE COURT: Yes, I’m going to give the similar and I’m going to say it applies only to Ryan Davis and I’ve excused y’all by agreement for the rest of the afternoon because this only affects him. Okay?
[BRADLEY’S COUNSEL]: Thank you.

With that, Javarious Davis, Bradley, Bivins, and their lawyers left the courtroom, leaving Ryan Davis, his lawyer, and the prosecutors. The jury returned, and the trial court instructed it that the upcoming evidence was to be considered only against Ryan Davis and only for the limited purpose of showing, if it did show, “the identity of the perpetrator, the course of conduct, the modus operandi, plan or scheme in the crimes which are charged in the case now on trial.” The State then presented evidence consistent with its proffer, which included the testimony of the foreman on one of the similar transaction construction sites and the investigating detective. The detective identified two photographic lineups that included Ryan Davis’s picture in position number four.

The foreman testified that he was working on the foundation of a house in January 2008 with six Hispanic workers when three African-American men robbed them mid-day. One robber pulled out a black handgun and instructed the other men “to check the Hispanic guys for money[, but] don’t mess with the black man, just get them.” The foreman said he was the only African-American present and tried to tell them that the crew did not have any money because they had not been paid in a couple of weeks, but, he testified, the gunman “told me to shut up or that I would be next or that he would get me too.” The robbers took money from the one man who had any and then walked up the street and left in a light blue Chevrolet car with a blue and white license plate. An officer came to the scene after the foreman called 911, and a day or two afterward, the foreman viewed photographic lineups and identified the man in position number four as one of the robbers. He also identified Ryan Davis in the courtroom as one of the robbers and the man he had selected from the photographic lineup. After the foreman finished testifying, the jury was excused for the weekend. When court resumed on Monday, the State recalled a detective to identify photographs of Ryan Davis and Bradley, then rested.

(a) Defendants who are jointly indicted for crimes in which the State does not seek the death penalty “may be tried jointly or separately in the discretion of the trial court.” OCGA § 17-8-4 (a). We review the trial court’s denial of a motion to sever for abuse of discretion. Rhodes v. State, 279 Ga. 587, 590 (3) (619 SE2d 659) (2005). Here, however, Davis made no motion to sever, either before trial or during the somewhat cryptic exchange among counsel and the trial court quoted above, and similarly made no motion to exclude the similar transaction evidence at trial or during the pretrial hearing on the issue. Only Bradley moved to sever the trial or exclude the evidence, and Davis did not join his co-defendants’ motions.

Appellant argues that it was error for the trial court to refuse to grant a co-defendant’s motion for severance. The appellant made no motion for severance on his own behalf.... The appellant in this case did not elect to sever. There is no authority, under the statute, to require the court to sever the trial of a defendant who has made no motion to sever. The right to a severance under both the Georgia law and the American Bar Association Standards Relating to the Administration of Criminal Justice arises only upon an appropriate motion. No motion to sever having been made in the trial court, the contention is without merit. It is too late after an adverse verdict to raise the issue for the first time.

(Citations and punctuation omitted.) Way v. State, 239 Ga. 316 (2) (236 SE2d 655) (1977). While Davis raised the issue in his motion for new trial, his failure to raise it at trial waives his right to argue the issue on appeal. Moore v. State, 272 Ga. 359, 360 (3) (528 SE2d 793) (2000) (right to severance arises only on an appropriate motion at trial).

(b) Davis also argues that he was denied his constitutional right to be present during a critical stage of his trial, which was the introduction of the similar transaction evidence against co-defendant Ryan Davis.

“[EJmbodied within the Georgia constitutional right to the courts is a criminal defendant’s right to be present and see and hear[ ] all the proceedings which are had against him on the trial before the [c]ourt.” (Citation, punctuation and emphasis omitted.) Pennie v. State, 271 Ga. 419, 421 (2) (520 SE2d 448) (1999). That right “is a fundamental right and a foundational aspect of due process of law.... Notwithstanding, the right to be present belongs to the defendant and the defendant is free to relinquish that right if he or she so chooses.” Ward v. State, 288 Ga. 641, 645-646 (4) (706 SE2d 430) (2011). “The right is waived if the defendant personally waives it in court; if counsel waives it at the defendant’s express direction; if counsel waives it in open court while the defendant is present; or if counsel waives it and the defendant subsequently acquiesces in the waiver.” Hampton v. State, 282 Ga. 490, 492 (2) (a) (651 SE2d 698) (2007).

As the trial court observed in its order denying Davis’s motion for new trial on this ground, Davis was present in the courtroom when his counsel waived his right to attend the proceedings while the State introduced the similar transaction evidence against Ryan Davis. Thus Javarious Davis “waived his right to be present through the representations of his trial counsel made in open court while he was present.” Hampton, 282 Ga. at 492 (2) (a).

Further, Davis waived his right to be present by acquiescing in the proceedings described above.

Acquiescence means a tacit consent to acts or conditions, and implies a knowledge of those things which are acquiesced in. One can not acquiesce in a wrong while ignorant that it has been committed, and the knowledge must be of facts. Acquiescence may arise where a person who knows that he is entitled to enforce a right neglects to do so for such a length of time that, under the circumstances of the case, the other party may fairly infer that he has waived or abandoned his right. Whether appellant knowingly acquiesced to the waiver of his presence, by his counsel, is a mixed question of law and fact.

(Citations and punctuation omitted.) Russell v. State, 230 Ga. App. 546, 547 (1) (497 SE2d 36) (1998).

In its order denying Davis’s motion for new trial, the trial court noted that it had “advised those in the courtroom, including the Defendant, about the request of his attorney to excuse him for the remainder of the day during the testimony against co-defendant [Ryan] Davis.” The court further found that Davis

Decided March 26, 2015

Sutherland Asbill & Brennan, Thomas W. Curvin, KurtE. Lentz, Yvonne M. Williams-Wass, for appellant.

Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Herbrina D. Sanders, Sheila E. Gallow, Assistant District Attorneys, for appellee.

voiced no objection, and declined to question the Court regarding his counsel’s decision. Moreover, the following day when trial resumed for all defendants, the Defendant again failed to object or question the Court as to his lack of presence during the presentation of the similar transaction evidence the previous day.

Davis thus waived his right to be present during that portion of the trial by failing to object to his absence. Heywood v. State, 292 Ga. 771, 775 (3) (743 SE2d 12) (2013) (failure to voice objection to absence from bench conference after trial judge advised those in courtroom about topic of discussion “constituted acquiescence in his counsel’s waiver of his right to be present”). Accordingly, we find no error.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       In Case No. A12A0526, this court affirmed Bradley’s judgment of conviction in an unpublished opinion (315 Ga. App. XXV) issued on May 9, 2012.


author: MCMlLLIAN, Judge.

text:
    A14A2045.
    SULLIVAN v. THE STATE.
    (771 SE2d 237)
   MCMlLLIAN, Judge.

Following a jury trial, Michael Sullivan was convicted of one count of aggravated assault, one count of criminal damage to property in the first degree, and one count of criminal damage to property in the second degree. He appeals following the denial of his motion for new trial, contending that the trial court erred in failing to merge the two counts of criminal damage to property and that his trial counsel was ineffective for failing to object during the State’s closing argument. Finding no error, we affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979). So viewed, the record shows that in 2008, Sullivan was in the process of a divorce, and his wife hired a private investigative firm to conduct surveillance on him and his paramour. Janette Gagnon worked as a private investigator for the firm and was assigned to conduct surveillance of Sullivan while his wife was out of town. On the morning of September 6, 2008, she positioned herself at the corner of Bethel Road and Brown’s Bridge Road in Gainesville, Georgia to monitor certain vehicles coming or going from Sullivan’s nearby house. At approximately 3:00 p.m., she saw one of the vehicles turn onto Bethel Road, and she proceeded to follow the vehicle down Bethel Road and onto Lake Hollow, the street where Sullivan’s house was located. She passed Sullivan’s house but lost track of the vehicle and decided to return to her previous post. As she was driving back to Bethel Road, a large, four-wheel all-terrain vehicle (“ATV”) came up out of the woods and drove right up to the rear bumper of her car. She saw the driver standing up over the handlebars oftheATV and recognized him as Sullivan. Realizing that Sullivan had caught on to the surveillance, Gagnon called her partner, Ben Pierce, who had also set up surveillance nearby, to let him know.

As soon as she hung up the phone, Sullivan took off on his ATV through the woods, and Gagnon pulled into the nearby driveway of an abandoned barn to call Pierce again to determine what they should do next. Within seconds, Sullivan came “flying across the street at a high rate of speed, right up to [her] car.” It appeared to Gagnon that Sullivan was purposely headed right for her car, and she became frightened. He blocked her in between his ATV and a tree, with the ATV parked beside her driver’s side door. He was standing up on the ATV and appeared to be in a rage, shouting and cursing at Gagnon. He got off the ATV and walked toward her, still shouting and cursing. Gagnon told him she was just turning around and to leave her alone or she would call the police.

However, Sullivan grabbed the car window, which was rolled down one to two inches, and tried to pull it off. He also tried to forcibly pull the car door open, while yelling at her to “get out of the car, bitch.” Gagnon, fearing that Sullivan was going to hurt her, hung up the call she had been on with Pierce, and started to call 911. Sullivan then got back on the ATV and drove away toward the road before coming back at her, in reverse, at full speed, and smashing into the driver’s side door of her car, breaking the window and sending glass flying everywhere. Before speeding off, Sullivan turned to her and said, “oops, sorry, bitch.” She immediately dialed 911, and as she and Pierce were waiting for police to arrive, she saw a white BMW 745, one of the vehicles owned by Sullivan, drive by, “flying... kicking up dust” headed out toward Brown’s Bridge Road. Gagnon suffered minor scrapes from the glass and swelling of her knee that had been resting against the car door. Photographs introduced at trial showed the damage to her car door, rear view mirror, and windshield, which cost $2,868.64 to repair.

Sullivan testified in his own defense and admitted to following “real close behind [Gagnon’s] car” when he first spotted her driving past his house. He followed her to the spot where she had pulled over, “shoot[ing]” fast across Bethel Road and stopping within five feet of her car door. According to Sullivan, he asked her if he could help her with something, and she rolled her window down one to two inches but did not respond. He admitted to climbing down from the ATV, trying to look through the car window, and calling her a “bitch.” However, he claimed that when he left, he meant to speed off quickly to spray rocks on her car, but accidentally put the ATV in reverse and ran into her car. He further admitted to saying, “sorry, bitch” and immediately returning to his house before taking off with friends for dinner plans.

In rebuttal, the State presented the testimony of Sandra Partridge, the Forsyth County Chief Assistant District Attorney. Partridge stated that during a calendar call for his case, Sullivan approached her and asked to speak to her about the case. Although she instructed him several times that he should not talk to her about the facts of the case and that anything he said to her could be used against him at trial, he insisted on telling her that all he was trying to do to Gagnon was “to scare her.”

1. In his first enumeration of error, Sullivan asserts that the trial court erred in failing to merge his convictions for the criminal damage to property charges because criminal damage to property in the first degree and criminal damage to property in the second degree “are merely variations of the same act which vary only by degree and the commensurate sentencing range.” Sullivan is correct that Georgia law generally prohibits multiple convictions if one crime is included in the other or if one crime differs from the other only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission. See OCGA § 16-1-7 (a) (l) and OCGA § 16-1-6. However, because criminal damage to property in the second degree is not a lesser included offense to criminal damage to property in the first degree and the two statutory provisions protect against different risks of injury, we find no merit to this enumeration.

To determine if one crime is included in and therefore merges with another under OCGA § 16-1-6 (1), “we apply the required evidence test set forth in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006). Under that test, we examine whether each offense requires proof of a fact which the other does not.” (Citations and punctuation omitted.) Thomas v. State, 292 Ga. 429, 433 (4) (738 SE2d 571) (2013). Thus,

[a] single act may constitute an offense which violates more than one statute, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

(Citation and punctuation omitted.) Linson v. State, 287 Ga. 881, 885 (4) (700 SE2d 394) (2010).

Here, Sullivan’s conviction for criminal damage to property in the first degree, as indicted, requires proof that he “[kjnowingly and without authority interfere [d] with any property in a manner so as to endanger human life.” OCGA § 16-7-22 (a) (1). And his conviction for criminal damage to property in the second degree, as indicted, requires proof that he “[ijntentionally damage [d] any property of another person without [her] consent and the damage thereto exceeds $500.00.” OCGA § 16-7-23 (a) (1). Thus, each requires proof of a fact which the other does not because criminal damage to property in the first degree requires evidence that the defendant acted in a manner that endangered human life, whereas criminal damage to property in the second degree requires evidence that the damage to property exceeds $500, neither of which is required in the other.

Moreover, to the extent that Sullivan is asserting that his convictions should have been merged under OCGA § 16-1-6 (2), we find his contentions to be unavailing for similar reasons. OCGA § 16-1-6(2) provides that a crime is included in another if “[i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” See Stepp v. State, 286 Ga. 556, 557 (690 SE2d 161) (2010) (describing OCGA § 16-1-6 (2) as one of several “additional statutory provisions concerning prohibitions against multiple convictions for closely related offenses”) (citation omitted). Here, although the criminal damage to property charges are defined by degrees, they prohibit different risks of injury — knowing interference with property in a manner that endangers human life and damage that results in a certain level of damage to the property. Accordingly, the trial court did not err in declining to merge the two convictions. See Carthern v. State, 272 Ga. 378, 380 (529 SE2d 617) (2000) (explaining the fundamental differences between the two separate offenses addressed in OCGA § 16-7-22 (a), the primary purpose of which is to protect human life and safety, and OCGA § 16-7-23 (a), which has a primary purpose of protecting private property).

2. Sullivan also argues that his trial counsel was ineffective for failing to object to the State’s closing argument regarding his defense of accident, which Sullivan contends improperly shifted the burden of proof to him. To succeed on this claim, Sullivan “must show both that his counsel’s performance was deficient and that, but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different.” Batten v. State, 295 Ga. 442, 445 (3) (761 SE2d 70) (2014). “It is the appellant’s heavy burden to prove the ineffective assistance of counsel” and counsel “is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Citation and punctuation omitted.) Id.

While acknowledging the general principle that the defense of accident does not apply when the accused was criminally negligent, Sullivan asserts that the State improperly argued that Sullivan could not assert accident as a defense because he was criminally negligent when he was “pissed off” and confronting Gagnon. However, the record reveals that the State argued Sullivan was criminally negligent for more than simply being angry. It argued that the accident defense did not apply in this case because Sullivan had a criminal scheme or undertaking or acted with criminal negligence when he was “riding right on her bumper . . . gunning it across the street. . . screaming at her, saying cuss words.” The State also pointed out that Sullivan’s own testimony showed he was confronting her on purpose and that there was “more than enough evidence to show that he intended this to happen. He rear ended her on purpose.” Thus, the State’s closing argument correctly stated the law on accident, and Sullivan’s trial counsel was not deficient for failing to object. See Yeager v. State, 281 Ga. 1, 2-3 (2) (635 SE2d 704) (2006) (correct statement of the law on accident includes the phrase “criminal negligence” to enable the jury to apply the charge on accident to the facts as they might be found to exist); Sampson v. State, 282 Ga. 82, 85 (6) (646 SE2d 60) (2007) (failure to make meritless objections cannot support a claim of ineffective assistance of counsel).

Decided March 26, 2015.

Sharon L. Hopkins, for appellant.

Penny A. Penn, District Attorney, James A. Dunn, Assistant District Attorney, for appellee.

Moreover, the record shows that the trial court charged the jury on the State’s burden of proof on each element of the crime, including the State’s burden to prove intent on each of the charges, and the State’s burden to disprove any defense raised by the evidence. And the trial court properly charged the jury on the defense of accident. Accordingly, the trial court did not err in denying Sullivan’s motion for new trial on this ground. See Allen v. State, 277 Ga. 502, 504 (3) (c) (591 SE2d 784) (2004) (rejecting appellant’s claim of ineffective assistance of counsel for failing to object to closing argument and pretermitting “whether the prosecutor misrepresented the law of justification during closing argument because qualified jurors under oath are presumed to follow the instructions of the trial court”).

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur.

       Pierce testified that he had remained on the phone with Gagnon during this time and heard a male screaming at her and calling her a “bitch.” He then heard Gagnon frantically screaming and what sounded like a loud accident. He quickly called 911 and rushed to her location where he found the driver’s side door of her car was smashed, the window broken, and Gagnon with cuts on her face.

       OCGA § 16-1-7 (a) (2) applies to crimes that “differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct” and is not implicated here.

       OCGA § 16-1-6 (1) provides that a crime is included in a crime charged in an indictment when “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged.”

       In contrast, criminal trespass is a lesser included offense of second degree criminal damage to property because the “salient difference” between the two crimes is whether the damage to the property exceeds $500. See Hill v. State, 259 Ga. App. 363, 365 (1) (577 SE2d 61) (2003).


author: Branch, Judge.

text:
    A14A2108.
    VEATCH v. AURORA LOAN SERVICES, LLC et al.
    (771 SE2d 241)
   Branch, Judge.

In a previous action to quiet title, JohnM. Veatch (‘Veatch” or the ‘Veatch Estate”), acting as the administrator of his father’s estate, successfully established that someone had forged two deeds in order to transfer estate property to a person who used the property to secure a $187,700 loan. The trial court’s decision to quiet title was affirmed by the Supreme Court. Aurora Loan Svcs. v. Veatch, 288 Ga. 808, 809 (710 SE2d 744) (2011). While the quiet title action was pending, Aurora Loan Services, LLC, with the assistance of McCalla Raymer, LLC, recorded in the Fulton County property records an assignment to Aurora of the secured party’s interest in the $187,700 loan. After the Supreme Court upheld the decision to quiet title to the property in the estate, Veatch sued Aurora and McCalla, asserting that by recording the assignment, they had slandered the title of the real property and wrongfully interfered with the estate’s property rights. The trial court granted summary judgment to the defendants, and Veatch appeals. We affirm because Veatch has failed to present any evidence to establish special damages.

“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.” Walker v. Gwinnett Hosp. System, 263 Ga. App. 554, 555 (588 SE2d 441) (2003) (citations and punctuation omitted). A trial court’s grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the nonmovant. Ethridge v. Davis, 243 Ga. App. 11, 12 (530 SE2d 477) (2000). “If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (citation omitted).

The facts, supplemented as shown, are set out in the Supreme Court’s decision affirming the trial court’s order striking the two forged deeds from the Fulton County Records and quieting title to the property in the estate:

Elsie Veatch owned the subject property until her death in 1974; her sole heir was Raymond Wesley Veatch, Jr., Veatch’s father, who died on March 20,2006. After his death, two forged deeds were recorded in the Fulton County deed records, purporting to convey title to the property to Antonio Simpson. One forged deed was styled “Quitclaim Deed,” purportedly executed on May 19, 2006 by Elsie Veatch, who had then been dead for 32 years; this purported deed was recorded on October 17,2006. The other purported deed was styled “Executors Deed,” and was purportedly executed by Raymond Wesley Veatch, Jr., on March 15, 2006, a date on which he lay in a coma; it was recorded on November 6,2006. After these forged deeds were executed and recorded, a warranty deed purportedly from Antonio Simpson to Darryl Matthews was recorded on November 8, 2006. [In May 2007,] Matthews then executed a security deed in favor of [MERS as the nominee of] First Magnus Financial Corporation in connection with a loan for $187,500. [On November 1, 2007, t]he security deed was . .. assigned to Aurora[, but the assignment was not recorded until April 9, 2009].
[Meanwhile, o]n September 5, 2007, after Veatch discovered activity on the property and applied for, and was granted, letters of administration of the estate of Raymond Wesley Veatch, Jr., he filed in the Fulton County land records an affidavit stating that the Executor’s and Quitclaim deeds were false. [On September 18, 2008, h]e then filed in the superior court [a] petition to quiet title [seeking to cancel the two forged deeds, the deed to Matthews, and the MERS security deed; Veatch also filed a lis pendens regarding the subject property]. OCGA § 23-3-40 et seq. [Although Aurora initially was not named as a party to the quiet title action, Aurora was added as a defendant on April 1, 2009; nine days later, Aurora recorded the assignment of the security deed from MERS, which was drafted by McCalla.] The trial court appointed a Special Master who concluded that Aurora was a bona fide purchaser for value. See Roop Grocery Co. v. Gentry, 195 Ga. 736, 745 (1) (25 SE2d 705) (1943). However, the trial court disagreed, finding that there was record notice that the forged deeds were fraudulent, and that in any event, a forged deed is a nullity and cannot convey title.

Aurora Loan Svcs., 288 Ga. at 808-809. On March 18, 2011, the Supreme Court affirmed the trial court’s decision quieting title in the estate on the ground that a forged deed is a nullity and therefore the trial court did not err by quieting title to the property in the estate unencumbered by the security deed held by Aurora. Id. After the Supreme Court’s decision, Veatch sold the subject property for $ 18,000.

One year later, Veatch filed suit against Aurora and McCalla alleging slander of title and interference with property rights, seeking damages, punitive damages, and attorney fees and expenses. Veatch alleged that as a result of the defendants’ actions, Veatch was unable to convey clear title to the property from 2007 through when the Supreme Court affirmed the decision to quiet title and that the defendants therefore should be liable for the loss in value of the property during that time. Veatch moved for partial summary judgment on the issue of liability, and the defendants moved for summary judgment on all of Veatch’s claims. In December 2013, the trial court granted summary judgment in favor of Aurora and McCalla. Veatch now appeals.

1. Veatch contends the trial court erred by granting summary judgment to Aurora and McCalla on his claim of slander of title. Veatch raised the claim of slander of title as follows:

By recording the Aurora Assignment on the Fulton County Records, then consciously acting to maintain the existence of the invalid encumbrance on the Fulton County Records, Defendants knowingly and voluntarily published false and defamatory words against the Veatch Estate’s title to the Veatch Property.

Veatch further alleged that as a result, the estate could not convey clear title to the subject property, or even attempt to sell it, until after the Supreme Court affirmed the trial court’s decision to quiet title. Veatch claimed that as a result, the estate suffered special damages “by the loss in value of the slandered Veatch Property.”

“The owner of any estate in lands may bring an action for libelous or slanderous words which falsely and maliciously impugn his title if any damage accrues to him therefrom.” OCGA § 51-9-11. “In order to sustain an action of this kind, the plaintiff must allege and prove the uttering and publishing of the slanderous words; that they were false; that they were malicious; that he sustained special damage thereby; and that he possessed an estate in the property slandered.” Latson v. Boaz, 278 Ga. 113, 114 (598 SE2d 485) (2004) (citations and punctuation omitted).

Pretermitting analysis of the other elements of proof, this case is controlled by Veatch’s failure to raise an issue of fact regarding special damages. A plaintiff asserting a slander of title claim is entitled to “only such special damages as he actually sustained as a consequence of the wrongful acts, which damages must be pled and proven with particularity.” Sanders v. Brown, 257 Ga. App. 566, 568 (571 SE2d 532) (2002). “Special damages are those which actually flow from a tortious act.” OCGA § 51-12-2 (b). Generalized allegations of damages are insufficient to establish special damages. Hicks v. McLain’s Bldg. Materials, 209 Ga. App. 191, 192 (1) (433 SE2d 114) (1993). Summary judgment in favor of a defendant in a slander of title action will be affirmed when the appellant fails to present proof of special damages in response to a motion for summary judgment that points out the absence of such evidence in the appellant’s case. Giles v. Swimmer, 290 Ga. 650, 652 (2) (725 SE2d 220) (2012) (a slander of title case).

In their motions for summary judgment, the appellees claimed that there was no evidence of special damages to support Veatch’s claim. In response, Veatch points to his verified answers to interrogatories in which he made the following assertions of damage resulting from the alleged slander of title: (1) the estate was unable to take action to sell the property before March 18, 2011, the date of the Supreme Court’s decision in the quiet title action; (2) beginning in June 2011, the estate took steps to sell the property and received two offers before entering into an agreement to sell on August 29,2011 for a price of $18,000; (3) the price obtained was “consistent with other nearby listings”; and (4) Veatch accepted that price based on an evaluation of the depressed market conditions and the unlikelihood that conditions would improve in the “foreseeable future.” In his briefs, Veatch suggests that the estate was damaged by the difference in the amount of the 2007 loan, $187,700, that was obtained based on the forged deeds, and the ultimate price that Veatch was able to obtain for the property in 2011, $18,000. This evidence is insufficient to raise an issue of fact regarding special damages.

First, a claim of slander of title “accrues when the false, slanderous, and malicious words impugning the title of the person’s land are first published, causing special damages.” Sanders, 257 Ga. App. at 567-568 (citation omitted). Thus, the time frame for assessing damages runs from April 9, 2009, the date the assignment was recorded, to March 18, 2011, the date of the Supreme Court’s decision. Accordingly, the amount of the loan obtained in May 2007 is not relevant to a determination of damages. Second, Veatch has not brought forth any facts regarding the value of the property at any time between April 2009 and March 2011 nor shown how the value of the property during that period suffered from the fact that the relevant assignment was recorded. This utter failure to show specific figures to support the claim of damages is fatal to the claim of slander of title. Harmon v. Cunard, 190 Ga. App. 19 (378 SE2d 351) (1989); Giles, 290 Ga. at 652-653 (2). In Harmon, the plaintiff alleged slander of title and asserted that by recording a false lien on her property, the defendants had “prevented her from obtaining funds necessary to complete her house and prevented her from selling her house, without offering specific figures for the damage allegedly suffered.” Id. at 20 (emphasis supplied). This Court noted that during the trial, following which the jury returned a judgment in her favor, the plaintiff did not “testify to or otherwise prove any special damages actually sustained in this regard.” Id. Accordingly, this Court affirmed the trial court’s grant of judgment notwithstanding the verdict. Id. Here, Veatch failed to offer any specific figures to show special damage resulting from the defendants’ actions at the relevant times. Thus, the trial court did not err by granting summary judgment on the claim of slander of title. See, e.g., M & M Mtg. Co. v. Grantville Mill, 302 Ga. App. 46, 50 (3) (690 SE2d 630) (2010) (“General evidence that the lien hindered [party’s] ability to obtain a loan was also insufficient to establish special damages.”) (citations omitted); Bell v. King, Phipps & Assoc., P.C., 176 Ga. App. 702, 704 (1) (b) (337 SE2d 364) (1985) (evidence of a decline in property value over the relevant period of time is insufficient without evidence that the value of the property was affected by the allegedly slanderous lien).

Decided March 26, 2015.

Robinson & Blazer, John E. Robinson, Gregory FI. Blazer, for appellant.

McCalla Raymer, Mindi C. Robinson, Kent E. Altom, Steven J. Flynn, Brett C. Giordano, RCO Legal, Lori L. McGowan, for appellees.

Veatch’s assertion that he was damaged by having to litigate the quiet title action is also without merit. Costs of litigation and attorney fees “do not constitute the special damages necessary to support [a claim of slander of title].” Sanders, 257 Ga. App. at 568 (citation omitted); M & M Mtg., 302 Ga. App. at 50 (3) (attorney fees necessary to remove allegedly slanderous lien in prior proceeding did not constitute special damages); Bell, 176 Ga. App. at 704 (“The expenses of defending a lawsuit do not constitute special damages.”) (citation omitted).

Because Veatch failed to present any evidence of special damages in response to the motions for summary judgment, the trial court correctly granted summary judgment on Veatch’s claim of slander of title.

2. Because Veatch’s claims for punitive damages and attorney fees are derivative of his claim for slander of title, the trial court also did not err by granting summary judgment on those claims. See Green v. Flanagan, 317 Ga. App. 152, 156 (1) (730 SE2d 161) (2012); Canton Plaza v. Regions Bank, 315 Ga. App. 303, 308 (1) (b) (732 SE2d 449) (2012).

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       Veatch does not challenge the trial court’s grant of summary judgment on Veatch’s claim of interference with property, and therefore that claim is not before us.


text:
    A14A2265.
    LOWRY v. FENZEL.
    (769 SE2d 522)
   McMillian, Judge.

Heather E. Lowry (“Lowry”), as administratrix for the estate of William B. Lowry, appeals from the trial court’s grant of summary judgment to defendant Roberta K. Fenzel f/k/a Roberta K. Lowry (“Fenzel”), directing that Fenzel has the right to funds held in various accounts upon the death of her ex-husband, William B. Lowry (“decedent”). Lowry also asserts as error the trial court’s failure to grant her motion to strike the affidavit of a witness submitted by Fenzel in support of her motion for summary judgment. For the reasons that follow, we affirm in part and reverse in part.

“Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.” (Citations and punctuation omitted.) Rollins v. Rollins, 329 Ga. App. 768, 772 (3) (a) (766 SE2d 162) (2014). And in our de novo review of the grant of a motion for summary judgment, we view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant. Id.

The relevant facts are largely undisputed. Fenzel and decedent were married on May 6, 1995. On October 1, 2008, Fenzel and decedent executed a “Settlement Agreement” that was incorporated into the “Final Judgment and Decree of Divorce” entered by the Superior Court of Cobb County on October 9, 2008. Decedent died intestate on March 14, 2011, and Lowry, his niece, was appointed the administratrix of his estate. At the time of his death, decedent held several checking and investment accounts with various financial institutions as follows:

1. Ameriprise Financial Services, Inc. brokerage account in the amount of $225,116.49 (“Ameriprise”);
2. Atlanta Postal Credit Union draft checking account and certificates of deposit totaling $174,424.34 (“APCU”);
3. GEMC Federal Credit Union checking account in the amount of $51,734.98 (“GEMC”); and
4. LGE Community Credit Union checking account containing $27,388.57 (“LGE”).

The Ameriprise account and three of the certificates of deposit held with APCU — with a subtotal of $60,525.84 — were held solely in decedent’s name with Fenzel listed as the beneficiary or transfer-on-death recipient. All other accounts were held jointly in decedent and Fenzel’s names. Fenzel admits that she accepted transfer of all funds from the Ameriprise, APCU, and GEMC accounts.

On November 1, 2012, LGE filed an interpleader action in the Superior Court of Cobb County, naming both Lowry and Fenzel as defendants and alleging that Lowry had presented a demand for payment of the funds on deposit in decedent’s account and that F enzel is listed as the joint owner of the account. On December 4, 2012, Lowry filed suit against Fenzel in Fulton County on behalf of decedent’s estate to recover all funds from the Ameriprise, APCU, and GEMC accounts after Fenzel refused to return those funds to decedent’s estate. On March 11, 2013, the Cobb County action was transferred to Fulton County where LGE was dismissed as a party following deposit of the interpleader funds into the court registry, and Lowry was realigned as the plaintiff. The case was then reassigned to the judge who had been assigned to the December 2012 action filed by Lowry. The trial court subsequently granted the parties’ motion to consolidate the two actions into one case. Following discovery, Fenzel filed a motion for summary judgment, which the trial court granted after a hearing. This appeal followed.

1. In her first and second enumerations of error, Lowry asserts that the trial court erred in granting summary judgment to Fenzel as to the accounts held solely in decedent’s name, with Fenzel listed as a beneficiary. It is undisputed that decedent never completed any change of beneficiary forms or removed Fenzel’s name from the accounts. Rather, Lowry argues that Fenzel waived her interest in any such accounts through the Settlement Agreement entered into by Fenzel and decedent, pointing specifically to Paragraphs 3 and 8. Paragraph 3 is entitled “PERSONAL PROPERTY (GENERAL)” and provides, in toto:

All items of personal property of every kind, nature and description, and wherever located, currently in the possession of the respective parties, in addition to all transfers herein provided, shall, upon the signing of this Agreement, be the sole and exclusive property of that party. Each shall own and enjoy this property independently free and clear of all claims or rights of the other; however, in the event a provision below provides for the later transfer of any personal property, that provision shall control.

And Paragraph 8, entitled “PERSONAL PROPERTY (SPECIFIC),” includes a specific list of household and personal items to be given to Fenzel and the manner in which she may retrieve those items. Paragraph 8 also states:

Except as may otherwise be stated in this Agreement, each party shall be entitled to any and all bank accounts, money accounts, investment accounts, including stock portfolios, in that party’s name and the other party shall make no claim whatsoever, legal, equitable, or otherwise, to same.

“Settlement agreements in divorce cases must be construed in the same manner and under the same rules as all other contractual agreements.” Schwartz v. Schwartz, 275 Ga. 107, 108 (1) (561 SE2d 96) (2002). And, “ [construction of a contract by the court involves three steps. First, if no ambiguity appears, the trial court enforces the contract according to its terms irrespective of all technical or arbitrary rules of construction.” (Citations omitted.) Frier v. Frier, 303 Ga. App. 20, 21 (692 SE2d 667) (2010). Then, if ambiguity does appear, the existence or nonexistence of an ambiguity is a question of law for the court. Id. Thus, “a jury question arises only when there appears to be an ambiguity in the contract which cannot be negated by the court’s application of the statutory rules of construction.” Id.

We discern no ambiguity in the language of the Settlement Agreement here. “Ambiguity in a contract is defined as duplicity, indistinctness, or an uncertainty of meaning or expression.” (Citation and punctuation omitted.) Frier, 303 Ga. App. at 21. As an initial matter, Paragraph 3 of the Settlement Agreement provides for the division of personal property in the possession of the parties at the time of the agreement and does not apply to the financial accounts at issue here. Rather, the more specific language of Paragraph 8 governs the division of the parties’ accounts. See Holland v. Holland, 287 Ga. 866, 868 (1) (700 SE2d 573) (2010) (“In construing contracts, a specific provision will prevail over a general one.”).

Fenzel concedes that Paragraph 8 extinguished any claims she may have had to the accounts held solely in decedent’s name that arose by virtue of their marriage. However, she argues that her beneficiary interest in those accounts is not by virtue of her marriage to decedent, but rather through the contractual agreements between decedent and the financial institutions and that she did not waive her expectancy interest in those accounts. Lowry contends, however, that the language of Paragraph 8 is broad enough to waive Fenzel’s right to payment as a beneficiary, pointing us to two cases that addressed similar waiver language. We agree and find that Fenzel waived her expectancy interest as a beneficiary to the accounts held in decedent’s name.

Kruse v. Todd, 260 Ga. 63 (389 SE2d 488) (1990), is particularly instructive. In that case, the administratrix of the decedent’s estate and the decedent’s ex-wife both claimed an interest in a life insurance policy and an IRA in which the ex-wife remained the designated beneficiary at the time of the decedent’s death. The divorce settlement agreement provided in part:

Any stocks, bonds, IRA’s or any other monies wherever located presently is [sic] the sole and exclusive property of the designated depositor or named owner or recipient, and the other party shall have no interest therein.
Except as otherwise expressly provided, the parties shall and do mutually remise, release, and forever discharge each other from any and all actions, suits, claims, demands, and obligations, whatsoever, both in law and in equity, which each of them ever had, now has, or may hereafter have against the other upon or by reason of any matter, cause, or thing up to the date of the execution of this Agreement.

(Punctuation omitted.) Id. at 65. The Supreme Court held that the agreement expressed no intent that the wife release her expectancy interest as a beneficiary of the husband’s life insurance policy, finding that “up to the date of the execution” the wife had no claim or right against the husband to be named beneficiary of his life insurance policy and he was under no legal or equitable obligation to maintain the wife as beneficiary. Id. at 67 (1). Thus, any rights the wife had to the proceeds arose after the husband’s death, and any claim to the proceeds was against the life insurance company and not against the husband. Id.

However, in addressing the wife’s claim to an IRA account, on which she also remained the beneficiary at the time of the husband’s death, the Court found that the language clearly and unambiguously expressed the parties’ intent that the wife release any interest in any IRA of which the husband was the designated depositor and was sufficiently broad to include her expectancy interest in the IRA. Kruse, 260 Ga. at 69-70 (5).

And in another similar case, Young v. Stump, 294 Ga. App. 351, 353 (669 SE2d 148) (2008), the executrix of the decedent’s estate and the decedent’s ex-wife both claimed an interest in an IRA in which the ex-wife remained the designated beneficiary at the time of decedent’s death. The divorce settlement agreement in that case provided:

Husband shall have all right, title, and equity in and to any retirement account which is presently titled in his name, or which was established for his benefit, including, but not limited to IRAs. Wife shall make no claim to or against any such account and herewith specifically waives and relinquishes any and all claims which she may have to same.

(Punctuation omitted.) Id. at 351. This Court found the language showed that the wife intended to disclaim any and all interest in the husband’s retirement accounts and operated as a waiver of her beneficiary designation. Id. at 353 (1).

We are unpersuaded by Fenzel’s attempt to distinguish these cases. She argues that the Settlement Agreement does not cover any beneficiary interests arising outside of the marriage and that her claims to these funds arise from the contracts with the financial institutions. In support of her argument, Fenzel points to Paragraph 5 of the Settlement Agreement, asserting that it makes clear that the Agreement only governs “matters arising out of the divorce.” However, the settlement agreement in Kruse also included a similar clause:

Except for those rights and claims for which this Agreement provides, and except for the provisions of any valid Last Will and Testament of the other, each party hereby waives and releases his or her respective rights and claims against the other or the estate of the other including, but not limited to, alimony, division of property, curtesy, year’s support, and any rights or claims he or she may have against the other or the estate of the other by reason of the marriage of the parties.

(Punctuation omitted; emphasis supplied.) Kruse, 260 Ga. at 65-66. Notwithstanding that clause, the Supreme Court held the agreement’s waiver language clearly expressed the intent of the parties and was sufficiently broad to include the wife’s expectancy interest in the IRA. Id. at 69-70 (5). We reach the same result here and hold that the language in the Settlement Agreement providing that “each party shall be entitled to any and all bank accounts, money accounts, investment accounts, including stock portfolios, in that party’s name and the other party shall make no claim whatsoever, legal, equitable, or otherwise, to same” is unambiguous in expressing Fenzel and decedent’s intent that the Ameriprise and APCU accounts held solely in decedent’s name would remain the personal property of decedent and that Fenzel waived any claim to those accounts, including any expectancy interest therein. (Emphasis supplied.) Accordingly, the trial court erred in granting summary judgment to Fenzel as to the Ameriprise and APCU accounts that were held in decedent’s name.

2. In her third and fourth enumerations of error, Lowry contends that the trial court erred in granting summary judgment to Fenzel as to the accounts that were jointly held by Fenzel and decedent. As explained in Division 1, Paragraph 8 governs the division of the parties’ financial accounts. However, it merely states that each party shall be entitled to all such accounts in that party’s name. Nowhere does the Settlement Agreement address accounts that were jointly held by the parties. Thus, “[t]he agreement is not ambiguous; rather, it completely fails to describe and dispose of the property” at issue. Newborn v. Clay, 263 Ga. 622, 623 (436 SE2d 654) (1993) (“agreement is not ambiguous simply because it fails to dispose of or make reference to the disposition of property in which both parties have an interest”). And where title to property is not described in the divorce decree, it is unaffected by the decree and remains titled in the name of the owner. Id. at 623-624. See also Gonzalez v. Crocket, 287 Ga. 430, 432 (696 SE2d 623) (2010) (“a divorce decree must specifically describe and dispose of property in which both parties have an interest or the decree will not divest either party of their interest in the property”) (citation omitted).

And under Georgia law, “[s]ums remaining on deposit at the death of a party to a joint account belong to the surviving party as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created. OCGA § 7-1-813 (a).” (Punctuationomitted.) Trust Co. Bank v. Thornton, 204 Ga. App. 903, 904 (1) (420 SE2d 817) (1992). See also OCGA § 7-1-815 (“Any transfers resulting from the application of [OCGA §] 7-1-813 are effective by reason of the account contracts involved in this article and are not to be considered testamentary.”).

Lowry urges us, however, to find that the joint accounts were included within the property settlement as defined by Paragraph 13 of the Settlement Agreement:

In consideration of any and all claims, actions, and demands that the Plaintiff may otherwise have against the Defendant, as a result of the parties’ marriage, and the property accumulated therein, and in order to equitably divide said marital property, the [husband] shall pay to the [wife] the total sum of $186,000.00, as a complete and final satisfaction of same. . . .

But, by its express terms, Paragraph 13 applies to the settlement of all claims arising from the parties’ marriage and includes no explicit waiver of any additional interest either party may have arising outside of the marriage. Because Fenzel did not specifically waive her interest in the joint accounts, the funds remaining therein upon decedent’s death were transferred to her according to the account contracts. See Frier, 303 Ga. App. at 22 (“although [wife] had no interest in the account by virtue of her marriage, [wife’s] expectancy interest (if any) as a death beneficiary was not waived”). See also Floyd v. Floyd, 291 Ga. 605, 612, n. 12 (732 SE2d 258) (2012) (divorce decree did not affect title of gold and silver items not sufficiently described therein). Therefore, the trial court did not err in granting summary judgment to Fenzel as to Lowry’s claims regarding those accounts held jointly in both decedent and Fenzel’s names.

Decided February 24, 2015

Reconsideration denied March 27, 2015

William G. Maston, for appellant.

Michael E. McLaughlin, for appellee.

3. In her final enumeration of error, Lowry asserts that the trial court erred by failing to grant her motion to strike the affidavit of Terry Hopkins, which was submitted by Fenzel in support of her motion for summary judgment. However, she failed to support her enumeration with any briefing, much less citation to authority, and it is deemed abandoned. See Court of Appeals Rule 25 (c) (2). Moreover, there is nothing in the record to indicate that the trial court issued a ruling either granting or denying her motion to strike. And, “[i]ssues which have not been ruled on by the trial court may not be raised on appeal.” (Citation and punctuation omitted.) Forum Group at Moran Lake Nursing and Rehabilitation Center, LLC v. Terhune, 318 Ga. App. 281, 289 (8) (733 SE2d 808) (2012).

Judgment affirmed in part and reversed in part.

Phipps, C. J., and Ellington, P. J., concur.

       Lowry also asserted claims with respect to two life insurance policies in which Fenzel was identified as the beneficiary, but later conceded that the estate had no claim to those policies because Terry Hopkins, a friend of decedent, was listed as the successor beneficiary.

       Fenzel argues that the two cases should be treated separately for certain purposes, including on appeal. However, although Fenzel continued to treat the two cases separately below, it is unclear from the record that the trial court intended anything other than to consolidate the two cases into one as urged by both parties below. Thus, we will review the trial court’s grant of summary judgment on all claims in this appeal. See Thomas v. Brown, 308 Ga. App. 514, 514-515 (1) (707 SE2d 900) (2011).

       A third case cited by Lowry is instructive but factually distinguishable. In Barnett v. Platz, 261 Ga.App. 51 (581 SE2d 682) (2003), the parties twice married and divorced. According to the terms of the first divorce settlement agreement, if the husband sold the marital residence, remarried, or died, the wife would receive half of the home’s equity. The second agreement, however, provided that “the parties shall and do mutually remise, release, and forever discharge each other from any and all actions, suits, debts, claims, demands and any and all obligations whatsoever against each other” and that “ ‘each party hereby waives any past, present or future claim or right which he may have against the other party.’ ” Id. at 52. This Court found that the release included the husband’s contingent obligation to give the wife half the home’s equity. Id.

       Nor are we persuaded by Fenzel’s reliance on Frier, in which the husband died following the couple’s divorce, having left his ex-wife as the beneficiary to a certificate of deposit account. 303 Ga. App. 20. The settlement agreement in that case provided that the parties “shall have and receive any sums of money in their respective checking accounts, savings accounts, IRAs, retirement funds or accounts or other properties in their own individual names.” (Punctuation and footnote omitted.) Id. at 20. In finding the wife had not waived her expectancy interest (if any) as a death beneficiary, this Court noted that — unlike in the case at bar — the parties’ agreement did not contain an explicit waiver of any party’s interest. Id. at 22.

       Paragraph 5, entitled “FINAL SETTLEMENT,” provides:
      The parties acknowledge that the provisions of this Agreement for the payment of funds and disposition of assets, transfer of title to assets and all other matters pertaining to the division of assets were arrived at through negotiations and that this Agreement constitutes a complete and final settlement, accord and satisfaction and release of each party to and of the other, for any and all claims which either may have against the other for any matters arising out of the divorce.
      This Agreement is acknowledged by each party to be sufficient satisfaction and settlement of all claims of each party against the other.

       As in Kruse, we note the record shows that Fenzel was aware of the existence of the Ameriprise and the APCU accounts before the Settlement Agreement was executed. See Kruse, 260 Ga. at 70 (5).