text:
    A10A1884, A10A1885.
    FLINT v. THE STATE (two cases).
    (707 SE2d 498)
   Mikell, Judge.

Sanchez Lorenzo Flint (Case No. A10A1884) and Terrail Devon Flint (Case No. A10A1885), who are cousins, appeal from the denial of their motions for new trial following their convictions by a jury of armed robbery, OCGA § 16-8-41. Their appeals have been consolidated. Finding no reversible error, we affirm.

1. Both appellants argue that their motions for new trial were improperly denied because the evidence was insufficient to find them guilty beyond a reasonable doubt.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and an appellant no longer enjoys the presumption of innocence. This court determines whether the evidence is sufficient under the standard of Jackson v. Virginia and does not weigh the evidence or determine witness credibility.

So viewed, the evidence shows that the robbery occurred on the evening of December 16, 2006. Ramon Perez and Brian Allen were assistant managers of a shoe store, Shoe Department, located on Mall Boulevard in Gwinnett County. Perez and Allen were required to close the store at 9:00 p.m., then clean up, count the proceeds, and prepare bank deposits. Because the store had been robbed before, the bank deposit was split, with Perez and Allen each having a bank bag. Perez’s deposit was composed of twenty-one $100 bills, fifty $20 bills, and two $50 bills, totaling $3,200. As Perez was leaving the store around 10:15 p.m., he saw a man who appeared to be getting ready to cross Mall Boulevard standing near a tree and a streetlight. Perez could see that the man was African-American and that he had twists in his hair.

Nelldra Allen (“Nelldra”), Allen’s wife, had arrived at the store around 10:00 p.m. to pick him up. She had backed her car into a handicapped space near the front door, where she waited around 20 minutes for Perez and Allen to come out of the store. Nelldra also noticed the man standing near a tree and streetlight close to the street. He had not been there when she pulled in and she continued to watch him because she knew the store had been robbed before. Nelldra saw the man run toward Perez and Allen as they came out of the store. He put on a ski mask and pulled out a silver gun. Allen had gotten into the car with Nelldra and she sped around the parking lot blowing her horn. She almost hit the man with the gun.

Perez had walked around the Allens’ car, gotten in his truck, and was reaching for the door when the man wearing a ski mask appeared in front of him with the gun, demanding the money. The man was wearing clothing similar to the man he had seen earlier, a long-sleeved white thermal shirt with a short-sleeved dark shirt over it. Perez gave the man the bank bag and the man ran toward a nearby Barnacles Restaurant. Nelldra, who witnessed the robbery and saw the robber running toward Barnacles, drove back to the store to check on Perez and they called the police. Nelldra also described the robber as having twists in his hair and wearing black with a white long-sleeved shirt on underneath. All three witnesses to the robbery described the shoes worn by the robber as white Air Force Ones.

Gwinnett County Police Sergeant Jay Parish was working an extra job as security at the Gwinnett Prado that evening. He was wearing his uniform and driving an unmarked car with concealed blue lights. He was backed into a parking space on the other side of Mall Boulevard almost directly across from the Shoe Department. After hearing the dispatch call of an armed robbery, he started patrolling the area because the dispatch said the subject fled toward Barnacles, which was near him. Within nine minutes of hearing the dispatch, as Sergeant Parish approached the Enterprise Rental Car lot, which was closed, he saw two men, later identified as Sanchez Flint and Terrail Flint, looking over their shoulders and appearing very nervous. Sergeant Parish stopped his car, flipped his blue lights on, started to get out of his car, and said “stop, can I talk to you for a second.” Both men fled and Sergeant Parish put out a call on his radio. Other officers working off-duty jobs at Barnacles caught the Flints in the Bank of America parking lot. A search of the area revealed a ski mask and a dark t-shirt underneath a shrub at Barnacles. No gun was found. When Parish arrived at the bank, he noticed dollar bills sticking out of the back of Sanchez Flint’s pants.

Gwinnett Officer Jennifer Scott went to Perez and the Allens and began taking their statements. She received information that two suspects had been apprehended. After Nelldra finished her statement, Officer Scott put her in her patrol car and drove her by the bank where the Flints were being held. The two men were about 100 feet apart and were standing under lights in the parking lot. Terrail Flint was wearing white Air Force One shoes. Nelldra noted that both men were out of breath and she identified Terrail Flint as the robber, saying “[tjhat’s him. I’m 99% sure that’s him.” Nelldra noted that he had taken off the white shirt and the mask. When Perez was driven by the two men, he recognized Sanchez Flint as a former employee of the Shoe Department who had worked nights with him and was familiar with the deposit procedures. Perez also noted that the other man, Terrail Flint, had hair twists similar to the person he had seen in the parking lot and was about the same height as the person who committed the robbery. Allen also noted that Terrail Flint was the same height and build as the robber and had similar hair twists. These viewings of the two suspects took place within 45 minutes to an hour after the robbery.

Officer Paul Tremblay, who helped transport the two men to jail, found numerous dollar bills on the floor around Sanchez Flint’s feet. Officers collected twenty-one $100 bills, two $50 bills, and fifty-one $20 bills for a total of $3,220. This was the amount stolen by the robber plus one $20 bill.

DNA samples were taken from the Flints and, according to the forensic biologist who made the comparison, saliva from the area around the mouth hole of the mask found at Barnacles matched the DNA of Sanchez Flint.

We find the evidence legally sufficient to support the conviction of armed robbery of Sanchez Flint and Terrail Flint.

Case No. A10A1884

2. In his first enumeration of error, Sanchez Flint argues that the trial court erred in denying his motion to suppress the DNA evidence because the state failed to introduce evidence at the motion to suppress hearing.

The DNA samples were taken from Sanchez Flint and Terrail Flint pursuant to a search warrant. Sanchez Flint filed a motion to suppress, contending that the affidavit submitted to obtain the warrant was insufficient. Sanchez Flint is correct that, at the beginning of the hearing on his motion, the trial court stated to defense counsel, “[fit’s your motion . . . ,” thereby incorrectly placing the burden on the defendant.

OCGA § 17-5-30 (b) addresses the burden of proof as to suppression of evidence and states that “the burden of proving that the search and seizure were lawful shall be on the state.” This burden “is a burden of persuasion. As such, it does not shift during the course of the motion hearing, even though the burden of producing evidence may shift back and forth.”

The record reflects that copies of the affidavit and the warrant were attached to the motion to suppress and additionally submitted to the Court during the hearing. Here, as in Bowman v. State, the warrant and affidavit were sufficient to satisfy the state’s burden and any error in the procedure followed by the trial court was harmless.

3. In his third enumeration of error, Sanchez Flint contends that the trial court erred in refusing to give his requested jury charge on theft by receiving, which he argued was a lesser included offense of armed robbery.

Theft by receiving, however, is not a lesser included offense of armed robbery. It is a separate offense proved by an entirely different set of facts. As such, Sanchez Flint was not entitled to a charge on theft by receiving, and the trial court did not err in refusing to give the requested charge.

4. Sanchez Flint’s fourth enumeration is that the trial court abused its discretion by permitting opening statements and testimony that mentioned prior robberies at the store.

There was, however, no objection voiced to this evidence below, and this failure constitutes a waiver of appellate review of the issue.

5. In his final enumeration, Sanchez Flint contends that his trial counsel rendered ineffective assistance during his trial for failing to object to the references to other robberies of the store.

In order to prevail on his claims of ineffectiveness, [Flint] must demonstrate that his trial attorney’s performance was deficient and that the deficiency so prejudiced him that a reasonable probability exists that, but for his attorney’s errors, the outcome of his trial would have been different; [Flint] must overcome the strong presumption that counsel’s actions fell within the broad range of professional conduct.

At the hearing on the motion for new trial, Sanchez Flint’s trial attorney was asked if he had a strategic or tactical reason not to object to this evidence. He testified that, in his opinion, the evidence was not relevant to his client because the witnesses testified that they recognized Sanchez at the showup because he was previously employed at the store. As counsel testified, “[o]bviously, if they had seen him at any of the other robberies, they would have identified him at that time.”

“[A]s a general rule, matters of reasonable trial tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel. A reviewing court evaluates trial counsel’s performance from counsel’s perspective at the time of trial.”

We find no error in the trial court’s denying Sanchez Flint’s motion for new trial on this ground.

Case No. A10A1885

6. Terrail Flint argues that the trial court erred in denying his motion to suppress the showup identification.

At a hearing on a motion to suppress, the trial judge sits as the trier of fact.

In cases involving the review of the grant or denial of motions to suppress or motions in limine, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous.
Although a one-on-one showup is inherently suggestive, identification testimony produced from the showup is not necessarily inadmissible. We must apply a two-part test to determine whether the showup was impermissibly suggestive, and, if the showup was impermissibly suggestive, we then consider the totality of the circumstances to determine whether a “very substantial likelihood” existed of irreparable misidentification. With regard to part one of the test, this Court has previously held that on-the-scene showup identifications, like the one in the present case, are often necessary “due to the practicabilities inherent in such situations.” Thus, as long as this type of showup was reasonably and fairly conducted at or near the time of the offense, it is not impermissibly suggestive and we need not reach the second part of the test.

Here, on and off duty police officers quickly converged on the scene of an armed robbery and encountered two suspects in the area who then fled. The victim and two witnesses were driven by officers to the two suspects separately within an hour of the robbery. Nelldra Allen was 99 percent sure Terrail Flint was the robber. Brian Allen noted that Terrail Flint was the same height and build as the robber and had hair twists similar to the robber. Perez also noted the hair twists and identified Sanchez Flint as a former employee of the store. Construing this evidence most favorably to the upholding of the trial court’s findings and judgment, we affirm the trial court’s finding that these showups were not impermissibly suggestive.

Decided February 22, 2011

Reconsideration denied March 18, 2011

Edwin J. Wilson, for appellant (case no. A10A1884).

Clark & Towne, Jessica R. Towne, for appellant (case no. A10A1885).

Daniel J. Porter, District Attorney, Nigel R. Lush, Assistant District Attorney, for appellee.

Judgments affirmed.

Smith, P. J., and Adams, J., concur.

       This ground is addressed in Sanchez Flint’s second enumeration of error and in Terrail Flint’s first enumeration of error.

       (Footnote omitted.) Buruca v. State, 278 Ga. App. 650-651 (629 SE2d 438) (2006).

       Barnacles’ blue roof could be seen from Enterprise’s parking lot.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Dorsey v. State, 297 Ga. App. 268, 270 (676 SE2d 890) (2009).

       (Citations and punctuation omitted.) Davis v. State, 266 Ga. 212-213 (465 SE2d 438) (1996).

       205 Ga. App. 347, 348 (422 SE2d 239) (1992).

        Frazier v. State, 257 Ga. 690, 699 (17) (362 SE2d 351) (1987).

        Dean v. State, 292 Ga. App. 695, 701 (4) (665 SE2d 406) (2008).

        Hicks v. State, 285 Ga. 386, 389 (4) (677 SE2d 111) (2009).

       (Citation omitted.) Futch v. State, 286 Ga. 378, 380 (2) (687 SE2d 805) (2010).

       (Citations, punctuation and footnotes omitted.) Sillah v. State, 291 Ga. App. 848, 852 (3) (663 SE2d 274) (2008).

        Page v. State, 296 Ga. App. 431 (1) (674 SE2d 654) (2009).

       (Citation and punctuation omitted.) Self v. State, 245 Ga. App. 270, 272-273 (2) (537 SE2d 723) (2000).

       (Footnotes omitted.) Wallace v. State, 295 Ga. App. 452, 454 (1) (671 SE2d 911) (2009).

        Page, supra.


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A10A1923.
    LIGHTFOOT v. HOLLINS et al.
    (707 SE2d 491)
   Adams, Judge.

Harry M. Lightfoot, Jr., M.D., the biological father of J. L., appeals the denial of his motion for summary judgment in this action brought by the child’s maternal grandparents seeking visitation with the child. We affirm.

Construed in favor of the grandparents, the evidence of record shows that Lightfoot and Dawn Hollins were married in 2001 and J. L. was born on December 19, 2002 in Durham, North Carolina. The parents separated in January 2003 and were divorced in June 2004. Hollins had primary custody of the child following the divorce. But, tragically, Hollins died on October 5, 2004, following a long battle with cancer. Lightfoot obtained custody of the child at that time. In September 2006, Lightfoot married Tywanda Ellison. In April 2007, Ellison purported to adopt the child in court proceedings in Durham County, North Carolina. The couple and child now live in Cobb County. As of the date of this opinion, the child is almost eight years old.

Leon and Carol Hollins are the child’s maternal grandparents, and they live in Maryland. On November 2, 2009, the grandparents petitioned the Superior Court of Cobb County for visitation privileges and later amended the petition. The grandparents averred that Carol Hollins lived with Dawn and the child on a daily basis in Durham for the first 22 months of the child’s life during the time that Dawn was struggling with cancer, but that since Dawn’s death, Lightfoot has only allowed the grandparents to visit the child twice, both times in 2005, when the child was two years old.

Six weeks after the petition was filed, Lightfoot filed a motion for summary judgment. He argued that because his current wife had legally adopted the child, the grandparents’ rights to the child had been extinguished by operation of law. Furthermore, he asserted that the grandparents had failed to satisfy the requirements of OCGA § 19-7-3 (c) by providing clear and convincing evidence that the health or welfare of the child would be harmed if visitation were denied and that they failed to show that it would be in the best interest of the child for visitation to be granted. Lightfoot argued that because the grandparents had not seen the child since August 2005 or had any other contact, “[t]here are no facts or circumstances which can be alleged, in the face of this admitted non-relationship, that would sufficiently satisfy the criteria necessary to be successful with the Petition.” He added that he was unaware of any attempts by the grandparents during that time to have contact with the child. Yet he asserted that at one unspecified point in time, the grandparents did seek visitation, for a full week each month and every other weekend, and he admits that communication regarding visitation continued through June 2007. Lightfoot’s current wife averred that “[the child] does not have any memories of Leon and Carol Hollins and does not know who they are.” Both Lightfoot and his wife stated that they did not want the court to order visitation to the grandparents.

In response to the motion, the grandparents averred that Lightfoot thwarted their attempts to have contact with the child, even though, in September 2004, he indicated he would make a good faith effort to arrange grandparent visitation. The grandparents also took steps from January 2005 through June 24, 2007 to attempt to establish visitation. They submitted several affidavits from witnesses who testified to the nature of the relationship between the child and her grandparents during the time that her mother was receiving cancer treatment, and testified that, based on that relationship, it would be in the child’s best interest to know her maternal grandparents.

In January 2010, the grandparents moved for appointment of a guardian ad litem as authorized by OCGA § 19-7-3 (d) (1). At the hearing on the motion for summary judgment, the grandparents also invoked OCGA § 9-11-56 (f), which authorizes a court to refuse to grant summary judgment if the party opposing the motion shows that he or she is unable to present facts essential to justify opposition to the motion. And they encouraged the court to appoint a guardian in order to “develop the facts of this case.”

On February 8, 2010, the trial court held that OCGA § 19-7-3 provides a basis for the grandparents’ claim despite any alleged adoption, a determination that Lightfoot does not contest. The court held that the lack of contact between the grandparents and the child over the four years prior to the petition was not sufficient standing alone to resolve all of the facts relevant to the petition. The court appointed a guardian ad litem for the purpose of representing the best interest of the child. The guardian was given the right and authority “to completely investigate all aspects of the case. ...”

Lightfoot contends the trial court erred by denying summary judgment because the grandparents failed to produce clear and convincing evidence that the health or welfare of the child would be harmed absent their visitation. He also contends the lack of contact for over four years was sufficient as a matter of law to resolve the issue before the court. He argues that there is no reason to invite the intrusions that the grandparents seek during the litigation, such as “therapists to examine the child, to examine the parents; guardian[s] ad litem[ ] to examine the homes; discovery and depositions conducted.”

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. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

The relevant Code section provides the grandparents with the right to seek visitation in the present circumstances:

Except as otherwise provided in this subsection, any grandparent shall have the right to file an original action for visitation rights to a minor child or to intervene in and seek to obtain visitation rights in any action in which any court in this state shall have before it any question concerning the custody of a minor child, a divorce of the parents or a parent of such minor child, a termination of the parental rights of either parent of such minor child, or visitation rights concerning such minor child or whenever there has been an adoption in which the adopted child has been adopted by the child’s blood relative or by a stepparent, notwithstanding the provisions of Code Section 19-8-19.

OCGA § 19-7-3 (b). It is OCGA § 19-8-19 that provides for the termination of all legal relationships between an adopted child and his or her relatives. Thus, as the above language makes clear, the grandparents’ rights are not affected by an adoption by a stepparent.

Tbe Grandparents Visitation Statute provides that a court may grant a grandparent reasonable visitation rights only when the court finds that “the health or welfare of the child would be harmed unless such visitation is granted, and if the best interests of the child would be served by such visitation.” OCGA § 19-7-3 (c). The evidence must be clear and convincing. Ormond v. Ormond, 274 Ga. App. 869, 870 (619 SE2d 370) (2005). The harm requirement means that grandparents must show more than that their contact with the child would be beneficial to the child:

even assuming grandparent visitation promotes the health and welfare of the child, the state may only impose that visitation over the parents’ objections on a showing that failing to do so would be harmful to the child.

Brooks v. Parkerson, 265 Ga. 189, 194 (2) (c) (454 SE2d 769) (1995). Indeed, according to the Supreme Court, “[i]t is irrelevant, to this constitutional analysis, that it might, in many instances be ‘better’ or ‘desirable’ for a child to maintain contact with a grandparent.” Id. See also Hunter v. Carter, 226 Ga. App. 251, 253 (1) (485 SE2d 827) (1997) (“The trial court’s insistence that the ‘child is lucky to have them as grandparents’ and that visitation would be ‘additive,’ i.e., an additional benefit for the child, should not factor into the court’s consideration.”). Also, the effect on the grandparents, themselves, of separation with the child is irrelevant:

[A]ny detrimental impact to the grandparents through the loss of visitation opportunities with a grandchild, whether due to the death or divorce of a child’s parents, relocation of the family, or other unfortunate circumstances, is irrelevant to the court’s determination of whether or not to grant visitation rights to the grandparents.

Hunter, 226 Ga. App. at 253 (1).

In their amended petition, the grandparents allege the child will be harmed by lack of a relationship with them. In opposition to the motion for summary judgment, they cite their own affidavits and others in support. But although those affidavits contain information about the child’s best interest, they do not provide any direct evidence of harm that the child would suffer as a result of not having visitation with the grandparents. Instead, the grandparents rely on OCGA § 9-11-56 (f) and the trial court’s appointment of a guardian, to argue that the facts need to be further developed and that a decision on summary judgment is premature.

OCGA § 9-11-56 (f) provides that if it is shown that the respondents cannot present facts in opposition to the motion, the court may deny summary judgment, allow further discovery, or take other action:

Decided January 26, 2011

Reconsideration denied March 18, 2011.

Stearns-Montgomery & Proctor, Mary Stearns-Montgomery, Ryan A. Proctor, for appellant.

Anthony M. Zezima, for appellees.

Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavits facts essential to justify his opposition, the court may refuse the application for judgment, or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had, or may make such other order as is just.

OCGA § 9-11-56 (f). See also Rudd v. Paden, 279 Ga. App. 141, 143-144 (2) (630 SE2d 648) (2006). A decision under this subsection lies in the sound discretion of the court. Fine v. Communication Trends, 305 Ga. App. 298, 301 (1) (a) (699 SE2d 623) (2010).

In this case, the trial court denied the motion for summary judgment and simultaneously appointed a guardian ad litem. Although the trial court did not state that it was operating under OCGA § 9-11-56 (f) in the order, it is apparent from the proceedings that the court chose to allow the case to go forward under that Code section, as it had the discretion to do. We cannot say the trial court abused its discretion in doing so. There was some evidence that Lightfoot had thwarted attempts at visitation in the early years following Dawn Hollins’s death. Thus, the lack of a relationship between the grandparents and the child might not be the fault of the grandparents. At any rate the trial court had the discretion to deny the motion for summary judgment and allow the guardian to investigate the facts.

The case of Hunter v. Carter, 226 Ga. App. 251, is not controlling. That case involved the question of whether the grandparents had presented any evidence at trial to support their petition. Here, the trial court decided that further proceedings were necessary to develop the case.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.


author: MIKELL, Judge.

text:
    A10A2066.
    SIERRA-CORRAL HOMES, LLC v. POURREZA.
    (708 SE2d 17)
   MIKELL, Judge.

Fatemah Pourreza sued Sierra-Corral Homes, LLC (“Sierra”) for breach of a construction contract. The trial court entered default judgment against Sierra and denied its motions to compel arbitration and to recover attorney fees. Sierra appeals, and we affirm.

The record shows that on April 17, 2007, Fatemah Pourreza entered into a contract with Sierra for the construction of a new home in Gainesville. Disputes arose, and on May 23, 2008, Pourreza sued Sierra, asserting claims of breach of contract, specific performance, equitable relief, and damages. Sierra’s registered agent for service of process could not be located, so Sierra was served through the Secretary of State on October 17, 2008. Sierra filed an untimely answer and moved to open the default. Following a hearing, the trial court denied the motion and entered default judgment on March 20, 2009. Sierra filed a direct appeal from that order. We dismissed the appeal because the order was not final, given that the issue of damages had not been adjudicated.

After the remittitur was issued, the trial court scheduled a hearing on damages for November 9, 2009. On November 5, Sierra filed a motion to set aside the default judgment, asserting that the trial court lacked jurisdiction because the parties’ contract was governed by an arbitration clause. Sierra also filed a motion to compel arbitration. Sierra also filed a motion seeking attorney fees and litigation expenses pursuant to OCGA § 9-15-14 (b). Pourreza filed a motion to stay arbitration. Following a hearing, the trial court issued an order on March 18, 2010, granting Pourreza’s motion and denying Sierra’s motions to compel arbitration and to recover attorney fees. Sierra appeals, enumerating nine errors.

1. Sierra’s first through fifth, and seventh, enumerations of error complain of the trial court’s denial of its motion to open default, the entry of default judgment, and the court’s failure to rule on its motion to set aside the default judgment.

Under OCGA § 9-11-55 (b), a prejudgment default may be opened on one of three grounds if four conditions are met. The three grounds are providential cause, excusable ne-gleet, and a proper case; the four conditions are a showing made under oath, an offer to plead instanter, an announcement of ready to proceed to trial, and setting up a meritorious defense.

Although “the rule permitting opening of default is remedial in nature and should be liberally applied,” “the trial court has broad discretion in deciding whether or not to open the default, and its decision not to open a default will not be interfered with unless that discretion is manifestly abused.” In the case at bar, the trial court did not abuse its discretion in deciding not to open the default.

Certain salient facts are undisputed. When the complaint was filed on May 23, 2008, Gustavo Corral, Sierra’s registered agent for service of process, could not be found, and service was returned “non est.” Pourreza then attempted service upon Sierra’s other member, Luis Perez, at the address listed for him with the Secretary of State. That service was returned “non est” as well, with the sheriffs notation “house empty and foreclosed on.”

According to the affidavit of Pourreza’s counsel, Lauren Gunnels, the trial court instructed her, at a calendar call in September 2008, that the case would be dismissed for want of prosecution unless Sierra was served by October 20, 2008. In reviewing certain documents, Gunnels became aware of an attorney, Craig Oakes, who had represented Sierra at one time. Gunnels sent Oakes an e-mail on September 24 stating, in part: “We represent [Pourreza] in an action against your client, [Sierra].” Oakes contacted Gunnels, and she asked whether he would accept service on behalf of Sierra. Gunnels indicated that she required a response by October 20, as the case had been set for a calendar call on that date. Gunnels averred that, in order to prevent dismissal of the case, she served Sierra through the Secretary of State on Friday, October 17, 2008. At the end of the following week, Gunnels received a letter from Oakes stating that Sierra had directed him to accept service and asking Gunnels to forward a copy of the complaint, summons, and a waiver of service.

Gunnels did not communicate further with Oakes, and Perez discovered the pending action upon searching public records in connection with a threatened foreclosure on the construction loan on the property. On January 21, 2009, Oakes filed an entry of appearance and a “Notice of Communication to Accept Service,” asserting that Gunnels disregarded their communication concerning service and engaged in a “bad faith effort to gain an unfair advantage over [Sierra].” Nevertheless, Sierra did not immediately file defensive pleadings. Rather, it was not until February 4, 2009, that Sierra filed a motion to open default, a pronouncement of ready for trial, a verified answer, and a counterclaim.

At the hearing held on the motion, Oakes argued that he was unable to file an answer before February 4 because he was negotiating with the bank to forestall foreclosure on the construction loan. Perez admitted that his address was listed incorrectly in the records filed with the Secretary of State; that Corral was no longer a member of Sierra by the time the complaint was filed and should not have been listed as its registered agent; and that Corral was supposed to change Sierra’s registered agent to Perez.

OCGA § 9-11-55 (b) “recognizes three legal excuses or bases for opening a default: (1) ‘providential cause’ preventing the filing of required pleadings, (2) ‘excusable neglect’ explaining the failure to timely file the required pleadings, and (3) circumstances making it a ‘proper case’ for opening the default.” In its order of March 19, 2009, denying the motion to open default, the trial court expressly relied upon Sierra’s failure to maintain a registered agent for service of process or a proper address for its sole remaining member, Perez. Accordingly, the trial court found that Sierra had failed to satisfy any of the three grounds for opening default. We conclude that where, as here, a defendant offers no reasonable explanation for failing to maintain a proper registered agent for service of process, the trial court does not abuse its discretion in refusing to open default.

2. Sierra contends that the trial court erred in entering default judgment because Pourreza had not made a motion therefor. The record shows, however, that Pourreza requested a default judgment in her response to Sierra’s motion to open default. In any event, because Sierra did not timely file an answer, the case automatically became in default by operation of law. Thereafter, Sierra did not open the default within 15 days as a matter of right, so the case could be opened only as authorized by OCGA § 9-11-55 (b). Pourreza thus was not required to file a motion for default judgment.

3. Sierra next contends that the trial court erred in overruling its objection to Pourreza’s cross-examination of Perez regarding the accuracy of records maintained by Sierra with the Secretary of State. “Control of the nature and scope of cross-examination of a witness is a matter within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion.” Sierra, as a limited liability company, was required by OCGA § 14-11-209 (a) (2) to maintain a registered agent for service of process, and contrary to Sierra’s argument, the cross-examination to which Sierra objected related to this issue. It follows that the trial court did not abuse its discretion in overruling Sierra’s objection to Pourreza’s questions regarding whether Sierra’s registered agent for service of process was correctly reflected in the proper records.

4. In its fourth enumeration of error, Sierra argues that the trial court should have stricken Gunnels’s affidavit because she did not appear at the hearing and was thus unavailable for cross-examination. Sierra has waived this issue, however, by refusing the trial court’s offer of a continuance.

The record shows that attorney Jeffrey Schneider represented Pourreza at the hearing. Sierra sought to question Schneider, but the trial court ruled that he could not be called as a witness. Sierra then moved to strike Gunnels’s affidavit. The trial court offered to continue the hearing so that Gunnels could be summoned as a witness, but Sierra declined. By its conduct, Sierra waived this issue. “A party cannot complain of error created by his own legal strategy, trial procedure or conduct.”

5. In its fifth enumeration of error, Sierra argues that the trial court erred in denying its request to question Schneider regarding the affidavit of service he filed with the Secretary of State. Sierra argues that the affidavit fails to comply with OCGA § 14-11-209 (f), which sets out the requirements for substituted service upon a limited liability company, as follows:

Whenever a limited liability company shall fail to appoint or maintain a registered agent in this state or whenever its registered agent cannot with reasonable diligence be found at the registered office, then the Secretary of State shall be an agent of such limited liability company upon whom any process, notice, or demand may be served. Service on the Secretary of State of any such process, notice, or demand shall be made by delivering to and leaving with him or her or with any other person or persons designated by the Secretary of State to receive such service two copies of such process, notice, or demand. The plaintiff or his or her attorney shall certify in writing to the Secretary of State that the limited liability company failed either to maintain a registered office or appoint a registered agent in this state and that he or she has forwarded by registered or certified mail or statutory overnight delivery such process, notice, or demand to the most recent registered office listed on the records of the Secretary of State and that service cannot be effected at such office.

Here, in his affidavit of service, Schneider certifies that he has

forwarded by certified mail, return receipt requested, the process concerning the above-named case to the last registered office/agent of [Sierra] as listed on the records of the Georgia Secretary of State as follows: . . . Gustavo Corral, 600 Garnett Street, Buford, Gwinnett County, Georgia 30518. ... I also certify that service cannot be effected at such office.

The tried court found that service upon Sierra complied with OCGA § 14-11-209 (f). “Factual disputes regarding service are to be resolved by the trial court, and the court’s findings will be upheld if there is any evidence to support them.” Sierra argues that the court’s finding is erroneous because the affidavit fails to state that two copies of the complaint were filed with the Secretary of State. We note, however, that the record contains an “Acknowledgment of Receipt” issued by the Secretary of State indicating that she had received “copies of legal documents relating to service of process upon” Sierra. The use of the plural “copies” is some evidence that Schneider complied with the statutory requirement that two copies be provided. Therefore, the trial court’s finding in this regard is not clearly erroneous and must be affirmed.

Anthony Hill Grading, Inc. v. SBS Investments, upon which Sierra relies, is distinguishable. In that case, we affirmed the grant of a motion to set aside a judgment because the evidence supported the trial court’s findings that appellant’s affidavit failed to comply with OCGA § 14-11-209 (f) and that appellant had actual knowledge of the appellee’s business address at the time suit was filed, so substituted service through the Secretary of State was improper under OCGA § 9-11-4 (e) (1) as well. By contrast, in the case at bar, the evidence supports the trial court’s findings that Sierra could not be served through its registered agent or any other officer because Sierra failed to maintain accurate information with the Secretary of State.

6. Sierra argues that the trial court erred in failing to rule on its “renewed” motion to set aside the default judgment, filed on February 10, 2010. The motion, filed pursuant to OCGA § 9-11-60 (d), asserts that the trial court lacked personal jurisdiction over Sierra because plaintiff did not properly serve it pursuant to OCGA § 14-11-209 (f). As we have already rejected its argument that substituted service was improper, we will not revisit it here.

7. In its eighth enumeration of error, Sierra argues that the trial court erred in denying its motion for attorney fees pursuant to OCGA § 9-15-14 (b). This argument fails, because this Code section only permits attorney fees to be awarded for claims that are successful. Sierra did not succeed on any claim, so the trial court did not err in denying its request for attorney fees.

8. In its ninth, and final, enumeration of error, Sierra contends that the trial court erred in denying its motion to compel arbitration. In a related enumeration, Sierra argues that the court should have granted its motion to set aside the default judgment pursuant to OCGA § 9-11-60 (d) (1) because the arbitration agreement in the parties’ contract deprived the court of subject matter jurisdiction. We disagree.

[A] judgment by default properly entered against parties sui juris operates as an admission by the defendant of the truth of the definite and certain allegations and the fair inferences and conclusions of fact to be drawn from the allegations of the declaration. . . . The default concludes the defendant’s liability, and estops him from offering any defenses which would defeat the right of recovery.

Decided February 22, 2011

Reconsideration denied March 18, 2011

Bryant & Oakes, Craig S. Oakes, for appellant.

Weissman, Nowack, Curry & Wilco, Jeffrey H. Schneider, for appellee.

In Conseco Finance Servicing Corp. v. Hill, this Court held that a default judgment by failure to answer the complaint waived all defenses to liability between the parties to a contract, including the defense of arbitration. Here, Sierra filed an untimely answer asserting as a defense that the complaint was barred by the arbitration clause in the parties’ contract. As default judgment was properly entered against Sierra, it was estopped from asserting the defense of arbitration. Therefore, Sierra’s motion to compel arbitration was properly denied, and the trial court did not err in failing to set aside the judgment for lack of subject matter jurisdiction.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

       Before the scheduled hearing on damages, Pourreza voluntarily dismissed her complaint without prejudice, and the trial court entered an order concluding that Sierra’s motions to set aside the default judgment and to compel arbitration were moot because of the dismissal. It appears that the court disregarded the voluntary dismissal, as the court subsequently held a hearing on the arbitration issue and issued a ruling thereon. Accordingly we express no opinion on the effect of the voluntary dismissal of the complaint.

       (Footnote omitted.) Crawford v. Dammann, 277 Ga. App. 442, 450-451 (4) (b) (626 SE2d 632) (2006). Accord Water Visions Inti. v. Tippett Clepper Assocs., 293 Ga. App. 285, 286-287 (2) (666 SE2d 628) (2008).

       (Citation omitted.) Vibratech, Inc. v. Frost, 291 Ga. App. 133, 144 (2) (661 SE2d 185) (2008).

       (Punctuation and footnote omitted.) Crawford, supra at 451 (4) (b).

        BellSouth Telecommunications v. Future Communications, 293 Ga. App. 247, 248 (666 SE2d 699) (2008).

       See Vibratech, supra at 145 (2) (appellant’s failure to receive timely notice of lawsuit was imputable in part to its own failure to advise authorities of the withdrawal of its registered agent). Accord Broadcast Concepts v. Optimus Financial Svcs., 274 Ga. App. 632, 634 (1) (618 SE2d 612) (2005) (no abuse of discretion where defendant waited more than a month, without reasonable excuse, to move to open default).

        Roberson v. Gnann, 235 Ga. App. 112, 113 (2) (508 SE2d 480) (1998).

       OCGA § 9-11-55 (a) provides, in relevant part:
      If in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default unless the time for filing the answer has been extended as provided by law. The default may be opened as a matter of right by the filing of such defenses within 15 days of the day of default, upon the payment of costs.

       (Footnote omitted.) Latimore v. Dept. of Transp., 250 Ga. App. 360, 361 (1) (552 SE2d 439) (2001).

       (Citations and punctuation omitted.) LN West Paces Ferry Assocs. v. McDonald, 306 Ga. App. 641, 648-649 (3) (a) (703 SE2d 85) (2010).

       (Citation and punctuation omitted; emphasis in original.) Vibratech, supra at 140 (1) (b).

       297 Ga. App. 728 (678 SE2d 174) (2009).

       Id. at 730-731 (1), 732-733 (2).

       See Franklin Credit Mgmt. Corp. v. Friedenberg, 275 Ga. App. 236, 242 (2) (d) (620 SE2d 463) (2005); Lawrence v. Direct Mtg. Lenders Corp., 254 Ga. App. 672, 676 (4) (563 SE2d 533) (2002) (whole court).

       (Citations and emphasis omitted.) NorthPoint Group Holdings v. Morris, 300 Ga. App. 491, 495 (2) (685 SE2d 436) (2009); accord Roberson, supra at 113 (1).

       252 Ga. App. 774, 779 (4) (556 SE2d 468) (2001).


text:
    A10A2173.
    JEFFERSON v. THE STATE.
    (707 SE2d 496)
   Adams, Judge.

On September 30, 1993, following a trial in the Superior Court of DeKalb County but before the jury reached a verdict, Eric Jefferson pleaded guilty to aggravated assault with intent to rape an adult female; the incident had occurred on July 9, 1992. He was sentenced to five years to serve with credit for time served. He was not required to register in Georgia as a sex offender at the time. In fact, the sex offender registration statute did not become law until 1996. See Ga. L. 1996, p. 1520, § 1. When passed, it required prisoners who had previously been convicted of a “sexually violent offense” or “an offense that has as its element engaging in physical contact with another person with intent to commit such an offense,” who were released from prison on or after July 1, 1996, to register. Id. Jefferson was released from prison in 1997 but did not register. He asserts that he was never told to do so until recently, when the State took out a warrant for his arrest for failing to register. He now resides in Louisiana.

On April 20, 2010, Jefferson petitioned the Superior Court of DeKalb County to be relieved of the requirements of OCGA § 42-1-12 et seq. on the ground that aggravated assault with intent to rape was not listed in the statute as a “sexually violent offense” until 2005. See Ga. L. 2005, p. 453, § 1. See also OCGA § 42-1-12 (a) (10) (A) (i). Jefferson also asserted that he is not a “sexual predator” as defined in the statute and that the evidence presented at trial did not show that he had been physically violent with the victim.

On May 11, 2010, the superior court denied the petition. The court construed Jefferson’s petition as “a motion for determination of whether he must register as a sex offender,” and it reasoned that whether a person is required to register is controlled by OCGA § 42-1-12, not by the sentencing court. The court also reasoned that registration as a sex offender is controlled by the state of residence, not the convicting court. The court cited OCGA § 42-1-12 (g) for the proposition that Jefferson should petition the court in the county in which he resides.

Jefferson contends the trial court erred by concluding that it lacked jurisdiction to hear his petition. He relies on former OCGA § 42-1-12 (g) (1) (2009), which, as of the date of Jefferson’s petition and the trial court’s order, provided that a sexual offender could petition the court for release from the registration requirements and that the petition may be filed in the “jurisdiction in which the sexual offender is registered”:

Any sexual offender required to register under this Code section who meets the criteria set forth in paragraph (2) of this subsection may petition the superior court of the jurisdiction in which the sexual offender is registered to be released from the registration requirements of this Code section.

OCGA § 42-1-12 (g) (1) (2009).

But according to the plain words of the statute then in effect, Jefferson was not authorized to file in the Superior Court of DeKalb County because he was not registered there. “Where statutory language is plain and unequivocal and leads to no absurd or impracticable consequence, the court has no authority to place a different construction upon it.” (Citation and punctuation omitted.) Frazier v. State, 284 Ga. 638, 641 (2) (668 SE2d 646) (2008).

Meanwhile, the relevant statute was revised shortly after the trial court’s order. And “[a]n appellate court must apply the law as it exists at the time of its judgment and may, therefore, even reverse a judgment that was correct at the time it was rendered, where, as here, the law has changed in the meantime and no vested rights are impaired. [Cits.]” Outdoor Systems v. Cobb County, 274 Ga. 606, 608 (1) (555 SE2d 689) (2001). Cf. Fowler Properties v. Dowland, 282 Ga. 76, 78 (1) (646 SE2d 197) (2007) (mere procedural changes in the law may operate retrospectively).

Decided February 11, 2011

Reconsideration denied March 18, 2011.

Eric Jefferson, pro se.

Gwendolyn Keyes Fleming, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

As of May 20, 2010, subsection (g) now provides:

A sexual offender required to register under this Code section may petition to be released from the registration requirements and from the residency or employment restrictions of this Code section in accordance with the provisions of Code Section 42-1-19.

OCGA § 42-1-12 (g); see also Ga. L. 2010, p. 168, § 9. And OCGA § 42-1-19 provides that “[a] petition for release pursuant to this Code section shall be filed in the superior court of the jurisdiction in which the individual was convicted.” OCGA § 42-1-19 (b) (1); see also Ga. L. 2010, p. 168, § 15. Although under these changes a person “required to register” may file suit in the jurisdiction where he was convicted, Jefferson contends he was never required to register. Again, we find no authority for Jefferson’s approach.

Jefferson appears to have at least three options: register and then file a motion under OCGA § 42-1-12 (g) in the Superior Court of DeKalb County; raise the need to register as a defense to the charge of failure to register, Thomas v. Warren, 284 Ga. 788, 789-790 (671 SE2d 837) (2009); or file a motion to vacate an illegal sentence. See, e.g., Jackson v. State, 299 Ga. App. 356 (683 SE2d 60) (2009).

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.


text:
    A10A2326.
    NEAL v. THE STATE.
    (707 SE2d 503)
   Adams, Judge.

Willie Henry Neal was convicted of rape and sentenced to life in prison without parole. He appeals the judgment and the denial of his amended motions for new trial. He contends that the evidence was insufficient to support the verdict, that the court erred by denying his motion to suppress, that the trial was flawed by prosecutorial misconduct, and that he received ineffective assistance of counsel. We affirm.

1. At trial, the victim testified that late on the night of September 5, 2003, as she was waiting for her mother to pick her up after a high school football game, a man she did not know approached her, asked her a question, walked away for a moment but returned. The man then grabbed her, tried to pick her up, and dragged her to some bushes as she attempted to fight with him to get away. The man threatened her with a knife, forced her pants and underwear off, choked her, and had intercourse with her over her screams and protests. Afterward he told her not to tell her parents, that he knew where she lived, and that if she told anybody, he was going to kill her. He even correctly told her the area where she lived and what type of car her mother drove. He then rode away on a bicycle. The victim’s mother did not arrive, so the victim began to walk home when the man returned on the bicycle and again threatened her not to tell.

There was blood on her jeans when she got home. She told her mother what had happened, and they went to the hospital for an examination and later to the police station to make a report. A sexual assault kit was prepared at the hospital. There was medical evidence of penetration. The investigation of the incident took some time, and, about two years later, the victim selected Neal from a photo lineup. At some point the rape kit was submitted for comparison with a cheek swab taken from Neal, and the substances found on the victim revealed semen and DNA from Neal. At trial, the victim identified Neal as the rapist.

The evidence was sufficient to support the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Neal contends the trial court erred in denying his motion for new trial based on his assertion of several incidents of prosecutorial misconduct.

(a) He first contends the prosecutor required him to wear a “shock belt” during trial. But he has not cited any evidence to support this assertion nor that he objected at trial. Unsupported assertions of error leave us nothing to review. See Jefferson v. State, 279 Ga. App. 97, 98 (630 SE2d 528) (2006). Moreover, at a hearing on Neal’s motions for new trial, trial counsel testified that he did not remember Neal complaining about a shock belt or even remember that Neal had to wear one. At the hearing on his motions for new trial, Neal testified that he wore a shock belt. But Neal essentially admitted that the belt was under his clothes and not visible. Finally, Neal has not cited any evidence to show that wearing any such belt was attributable to the prosecution nor explained how the incident amounts to reversible error.

(b) Neal contends the prosecutor engaged in misconduct during opening argument because, even though the victim’s mother never testified, the prosecutor stated the evidence would show that the victim’s mother had fallen asleep and lost track of time and that when the victim came to the door, the mother knew something was wrong. We find no possible harm. In the end, the victim testified to most of the same information, and Neal has not explained how he was prejudiced as a result. “It is axiomatic that harm as well as error must be shown to authorize a reversal by this court.” (Punctuation and footnote omitted.) Albarran v. State, 249 Ga. App. 331, 334 (4) (548 SE2d 440) (2001). See also Kersey v. Williamson, 284 Ga. 660, 663 (3) (670 SE2d 405) (2008).

(c) Neal contends the prosecutor violated the “golden rule” during closing argument and that he made several other improper statements. But “[i]n the appeal of a non-capital case in either appellate court, the defendant’s failure to object to the State’s closing argument waives his right to rely on the alleged impropriety of that argument as a basis for reversal.” Mullins v. State, 270 Ga. 450, 451 (2) (511 SE2d 165) (1999).

3. Neal contends the trial court erred by denying his oral motion to suppress introduction of the photo lineup from which the victim identified Neal. When the prosecutor began to question Detective Brad Mules about the photo lineup, Neal objected to its introduction on the ground that it showed him in a prison uniform. The prosecutor explained that the photo lineup was what the victim had been shown. The court reviewed the exhibit and said, “I don’t think it’s abundantly apparent that what he has on is what you have indicated. I think I’ll overrule the objection.”

On appeal, Neal first contends the photo lineup should have been excluded on the ground that it was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. But counsel did not raise this ground at trial, and therefore it is waived. Wallace v. State, 302 Ga. App. 410, 411 (1) (691 SE2d 557) (2010). Neal contends the photo lineup brought his character into evidence. But we have reviewed the exhibit and agree with the trial judge that it is not apparent that Neal is wearing prison clothing. We see no harm.

4. Finally, Neal contends his counsel was ineffective in five ways. To show ineffective assistance, a criminal defendant must show both that his counsel’s performance was deficient and but for counsel’s unprofessional errors, there is a reasonable probability that the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). And, “mere ‘(s)peculation is insufficient to satisfy the prejudice prong of Strickland.’” (Footnote omitted.) Peterson v. State, 284 Ga. 275, 276 (663 SE2d 164) (2008).

(a) Neal contends trial counsel failed to thoroughly investigate the facts of the case and to interview all potential witnesses. But trial counsel testified that the victim and her mother refused to speak to him, and Neal has not identified any other witnesses or their potential testimony that should have been presented. Without this information, he can show no harm.

(b) Neal contends trial counsel failed to adequately advise him both before and during trial. He adds that he never authorized counsel to use consent as a defense and that he wanted to testify but was not allowed by counsel. But again, even assuming he is correct on these assertions, Neal has not presented any information to show a reasonable probability that the outcome of the trial would have been different had counsel acted otherwise. Furthermore, by Neal’s own admission, he met with trial counsel “just about as much as anybody would want to meet with their attorney,” or perhaps ten or twelve times prior to trial. And trial counsel testified that he went over the evidence with Neal numerous times, discussed strategy, and that Neal relied on his advice and decided not to testify.

(c) Neal contends counsel failed to adequately cross-examine the State’s witnesses. He notes that counsel only cross-examined the victim and two other witnesses but failed to cross-examine three other witnesses — the first responding officer, the forensic scientist, and the Georgia Bureau of Investigation (GBI) crime lab biologist. He argues that, as a result, counsel failed to develop the only defense that he claimed to be pursuing — that the victim had consented.

“The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client.” (Citation and punctuation omitted.) Stuart v. State, 274 Ga. App. 120, 122 (616 SE2d 855) (2005).

Moreover, Neal simply has no information regarding what any asserted cross-examination would have revealed. His entire argument is based on pure speculation that something would have been discovered to help his case. He therefore has not shown a reasonable probability that the outcome of the trial would have been different had counsel engaged in further cross-examination.

(d) Neal contends that counsel failed to properly object to admission of the sexual assault kit and that counsel should have objected to the chain of custody of the kit.

Nurse Denise Atkinson, who performed the sexual assault examination, testified that she prepared the sexual assault kit by collecting vaginal swabs, fingernail scrapings, a blood sample, the victim’s clothing, and other material found on the victim or her clothing. She testified that she recognized Exhibit 9 as the kit she used in this case. Lieutenant Bobby Brantley of the Warner Robins Police Department testified that Atkinson turned the kit over to him, and he logged it into evidence. Melissa Murphy, a DNA analyst for Bode Technology group located in Springfield, Virginia, testified that her employer has a contract with the Georgia crime lab to process DNA samples. Under that agreement, she received vaginal/cervical swabs and a blood stain card regarding the victim. She determined that there were two different DNA profiles in the sample, one from a man and one from the victim. She returned that information to the GBI crime lab. Michael Gehring, a forensic biologist with the GBI crime lab testified that he received a swab of substance obtained from Neal’s cheek and he compared it with the sample returned from Bode Technology in order to determine whether there was a match. He concluded that the DNA profile of the two samples matched.

Neal points out that no testimony was given about where the kit was stored, how the kit got to Bode Technology, who handled the kit at certain times, and how it ended up at trial. He contends that therefore, the proper chain of custody was not established, and that trial counsel provided ineffective assistance by failing to object on that ground.

But, “[c]ounsel’s decisions on which motions and objections to make are matters of trial strategy and tactics that are within the lawyer’s exclusive province and do not amount to ineffective assistance of counsel.” Howard v. State, 252 Ga. App. 465, 468 (1) (556 SE2d 536) (2001). Moreover, in order to prove chain of custody, “[t]he State is not required to foreclose every possibility of tampering; it need only show reasonable assurance of the identity of the evidence.” (Citations, punctuation and footnotes omitted.) Maldonado v. State, 268 Ga. App. 691-692 (1) (603 SE2d 58) (2004). When “no showing of tampering has been made and only a bare speculation of possible tampering exists, the chain of custody is not broken and the evidence is admissible, with any doubts going to its weight.” Winter v. State, 252 Ga. App. 790, 791 (2) (557 SE2d 436) (2001). And the simple fact “that one of the persons in control of a fungible substance does not testify at trial does not, without more, make the substance or testimony relating to it inadmissible.” (Citations and punctuation omitted.) Gassett v. State, 289 Ga. App. 792, 795 (3) (658 SE2d 366) (2008). Accordingly, Neal has not shown that the outcome of the trial would have been different if trial counsel had objected. See, e.g., Thomas v. State, 288 Ga. App. 602, 606 (2) (654 SE2d 682) (2007) (not error to admit DNA results over chain of custody objection even though sample had been sent to a private lab in New Orleans for testing and no witness testified about custody of the sample at that lab). See also Johnson v. State, 271 Ga. 375, 382 (13) (519 SE2d 221) (1999).

(e) Finally, Neal contends trial counsel failed to object to the second trial on the ground of double jeopardy and improperly allowed his first scheduled trial to be canceled in his absence.

Neal’s case was called for trial on Monday, June 19, 2006, and a jury was selected and seated by about 5:30 p.m., but there is no indication in the transcript that the jury was sworn. At that point, Neal’s trial counsel mentioned that he needed to get some medicine from home and that he had sent someone earlier to get it. After a brief discussion between the attorneys and the judge, it was agreed that the proceedings would continue in the morning, the selected jurors were released for the evening, and the unselected jurors were released for good. The transcript shows that the next morning the judge announced that defense counsel had “some pretty serious health problems” because he missed taking some medicine. The court announced that the jurors were going to be dismissed as a panel and that the case would be tried in July, which it was, with a new jury. During the announcement, the judge stated that “it’s technically not a mistrial, because we haven’t begun. ...” The transcript does not indicate who was present on that morning.

At a hearing on his motion for new trial, Neal testified that the first jury was sworn on the first day. He testified that he was not taken to the court on the second day and that later, he learned that there would be no trial that day. No one asked his permission or consent to terminate the trial.

Neal contends counsel should have objected to the second trial on the ground of double jeopardy. But without the jury having been sworn in, jeopardy did not attach to the first trial. See Ogletree v. State, 300 Ga. App. 365, 366 (685 SE2d 351) (2009). Although Neal contends the jury was sworn, the transcript does not support his assertion. The court was authorized to conclude that the jury was never sworn and that jeopardy did not attach. Therefore we find no ineffective assistance with regard to any claim of double jeopardy.

Neal contends counsel failed to protect his rights by allowing his first trial to be terminated in his absence. See Vaughn v. State, 281 Ga. App. 475, 477 (636 SE2d 163) (2006) (“[A] criminal defendant must be present when the court takes any action materially affecting his case.”). But Neal has not proved an ineffective assistance claim on this point.

[W]here, as here, a defendant is not challenging his conviction directly based on an alleged violation of the right to be present, but instead raises the issue only indirectly under the aegis of an ineffective assistance of counsel claim, he or she must satisfy both prongs of the Strickland test for constitutional ineffective assistance of counsel claims.

Decided February 22, 2011

Reconsideration denied March 18, 2011.

Jeffrey L. Grube, for appellant.

Kelly R. Burke, District Attorney, Jason E. Ashford, Venita S. McCoy, Assistant District Attorneys, for appellee.

Peterson, 284 Ga. at 280. Neal simply has not shown that the outcome of his trial would have been different if he had been present that Tuesday morning to hear that his counsel was too ill to proceed. Accordingly, Neal’s ineffective assistance claim fails.

Judgment affirmed.

Smith, E J., and Mikell, J., concur.


author: BARNES, Presiding Judge.

text:
    A08A2315.
    ADAMS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (707 SE2d 928)
    Decided March 18, 2011.

      Chambers, Aholt & Rickard, Clyde E. Rickard III, for appellant.

      Harper, Waldon & Craig, Russell D. Waldon, Kimberly A. McNamara, William M. Cheves, Jr., Jane N. Wilkes, Ryan A. Johnson, Rodney S. Shockley, for appellee.
   BARNES, Presiding Judge.

In State Farm Mut. Automobile Ins. Co. v. Adams, 288 Ga. 315 (702 SE2d 898) (2010), the Supreme Court of Georgia reversed this Court’s decision in Adams u. State Farm Mut. Automobile Ins. Co., 298 Ga. App. 249 (679 SE2d 726) (2009). The Supreme Court held that the trial court did not err in granting summary judgment to State Farm Mutual Automobile Insurance Company and in denying summary judgment to Randolph Adams. Accordingly, our prior judgment in this case is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the judgment of the trial court is affirmed.

Judgment affirmed.

Ellington, C. J., Smith, P J., Miller, P J., Phipps, P. J., Blackwell and McFadden, JJ., concur.

Matthew Nasrallah, Jonah A. Flynn, amici curiae.


text:
    A10A1852.
    STRONG v. THE STATE.
    (707 SE2d 914)
   BARNES, Presiding Judge.

A jury convicted James Edward Strong of two counts of aggravated assault and two counts of possession of a firearm during those assaults, involving two victims. He appeals, contending that his trial counsel was ineffective for failing to obtain certified copies of one victim’s prior felony convictions and first offender plea. For the reasons that follow, we affirm.

Strong asserts he was denied his constitutional right to the effective assistance of counsel when his trial counsel failed to show the bias of or impeach a victim-witness about his first offender plea to child molestation or his two felony convictions.

[T]o prevail on a claim of ineffective assistance of counsel, a convicted defendant must show that counsel performed deficiently and that the deficient performance prejudiced the defendant such that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.

Allen v. State, 286 Ga. 392, 398 (5) (687 SE2d 799) (2010). Because Strong “must show both deficient performance and actual prejudice stemming from the deficient performance, an insufficient showing on either prong relieves the reviewing court of the need to address the other prong.” Id.

Viewing the evidence at trial in the light most favorable to the verdict, Brown v. State, 293 Ga. App. 633 (667 SE2d 899) (2008), it showed that Strong and the two victims, a married couple, were next-door neighbors. The victims had loaned Strong a car vacuum that Strong would not return, so they knocked on his door and the woman asked him to give it back. Strong responded, “[G]et away from my door, bitch” or he would shoot them and became loud and “belligerent . . . [l]ike he wanted to fight or something.” He closed the door, then opened it with a 9-millimeter pistol in his hand, “cursing and carrying on.” Strong cocked the handgun to put a bullet in the chamber and pointed it at the victims, “letting [them] know that there was no way [they] were going to get that car vacuum back without going through some type of changes.” Strong and the woman cursed at each other, and the victims left the doorway and called the police. At trial, three witnesses in addition to the two victims testified that Strong pointed a handgun at the victims when they went to his door. Strong was indicted and convicted in Douglas County of two counts of aggravated assault and two counts of possession of a firearm during the commission of a crime.

At the motion for new trial hearing, Strong’s trial counsel testified that the defense presented at trial was that Strong never brandished a gun, and that the victims and other witnesses contrived this story because they had “a beef” with Strong. When counsel obtained a copy of the male victim’s GCIC report, counsel saw he had a 1988 conviction for robbery by intimidation and a 1990 conviction for aggravated assault, both in Bibb County. Trial counsel sent a letter to the Bibb County Superior Court clerk’s office but received no response. At the motion for new trial hearing, appellate counsel tendered into evidence certified copies of the two convictions. When asked why he did not try harder to obtain certified copies of the convictions, trial counsel explained that he decided to focus his limited resources on other avenues of defense because the Bibb County Superior Court clerk’s office was about an hour and a half away and he knew he would have difficulty getting the convictions into evidence due to their age.

In reviewing the victim’s GCIC report, trial counsel also noticed that the victim had been arrested in 2002 for child molestation, but the report indicated no disposition of the charges and the Fulton County Superior Court clerk’s office did not respond to his request for more information. Counsel testified that he did not think much about the arrest because he thought the charge must have been dead-docketed as the victim was not in prison. Although the victim did not respond when counsel tried to contact him for an interview, at the Monday calendar call two days before the case began, the victim was present in court and counsel had an opportunity to talk to him. The victim mentioned he was on probation in Fulton County, and as a result of that conversation trial counsel again ran the victim’s GCIC report, and again found only the 2002 child molestation arrest. Trial counsel then found the victim’s name and picture listed in the GBI Sex Offender Registry, but when his field investigator went to the Fulton County Superior Court clerk’s office to retrieve a certified copy of the conviction, the clerk advised him that the file was in archives and would not be available until the end of the week. When the case was called for trial, the court denied trial counsel’s motion for a continuance to investigate the issue further, finding that the questionably admissible evidence would not lead to exculpatory evidence or otherwise support Strong’s defense but would simply be a means of attacking the victim’s credibility. At the new trial motion hearing, appellate counsel tendered a certified copy of the victim’s first offender plea to the child molestation charge.

In its order denying the motion for new trial, the trial court found that trial counsel was reasonably effective, particularly in light of the fact that Strong denied having a gun despite five witnesses’ testimony to the contrary. The court found that Strong’s testimony put his trial counsel

in the impossible posture of having to argue that all five witnesses were lying about the weapon’s presence while his client was telling the truth. The only defense with any reasonable probability of success in this case was self-defense^ . . . but] Strong instead stubbornly insisted on lying about the gun, placing [trial counsel] in a hopeless defense posture, and cannot cast his own poor decision on his attorney under the rubric of ineffective assistance.

The trial court noted that the victim’s GCIC report did not reveal the first offender plea, which trial counsel uncovered only through diligent investigation, and that it had never been asked to determine whether evidence of the prior convictions or plea would have been admissible. Finally, the trial court found no reasonable probability that the outcome might have been different if the evidence had been admitted, in light of the State’s overwhelming evidence of Strong’s guilt.

Strong argues on appeal that trial counsel was ineffective for failing to obtain certified copies of the victim’s prior felony convictions and first offender plea, which he asserts would have been admissible to impeach the victim and show bias.

OCGA § 24-9-84.1 (a) (1), (3) provides that a witness may be impeached with a prior felony conviction upon the trial court finding the probative value of the evidence to outweigh its prejudicial effect to the witness, or with a conviction for a crime involving dishonesty or making a false statement regardless of whether it was a felony or misdemeanor. However, such evidence is not admissible if more than ten years has elapsed since the date of the conviction or the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect, and the proponent has given the adverse party sufficient advance written notice of the intent to use such evidence so that the adverse party has a fair opportunity to contest the use of such evidence. OCGA § 24-9-84.1 (b).

(Punctuation omitted.) Allen, 286 Ga. at 394 (2). Strong argues that the probative value of the victim’s convictions would have outweighed their prejudicial effect despite their age. The victim’s 1990 convictions were for aggravated assault and robbery by force of a man over age 65, and Strong is also an older man. The victim’s 1988 burglary would have shown that the victim had a history of breaking into people’s houses, and Strong claimed that the victims came into his house and threatened him. Finally, Strong argues that the victim had not been eligible for first offender status because of these prior felonies, and therefore evidence of the child molestation plea would have been admissible for impeachment purposes as well as to show bias.

When reviewing a trial court’s ruling on an ineffective assistance of counsel claim, we defer to its factual findings unless they are clearly erroneous, but we review the court’s legal conclusions de novo. Sallins v. State, 289 Ga. App. 391, 392 (1) (657 SE2d 309) (2008). We have held that the decision about whether to impeach a witness by introducing certified copies of prior convictions is a matter of trial strategy, Lewis v. State, 302 Ga. App. 506, 508 (a) (691 SE2d 336) (2010), but here Strong argues that trial counsel never made that decision because he never obtained the certified copies. Strong is right that trial counsel did not obtain the information, but counsel made a strategic decision not to expend the limited resources of his office to obtain the certified copies, choosing instead to focus on other avenues of defense. “It is generally a tactical decision of trial counsel to determine how to allot the resources available in the defense of [his] client.” Herndon v. State, 235 Ga. App. 258, 259 (509 SE2d 142) (1998). The trial court’s conclusion that this decision did not constitute ineffective assistance is not clearly erroneous.

Regarding the witness-victim’s first offender plea, while evidence about the plea was inadmissible for impeachment purposes, it was admissible to show potential bias in favor of the State while the victim was still on probation under that plea. Manley v. State, 287 Ga. 338, 346 (5) (698 SE2d 301) (2010); Smith v. State, 276 Ga. 263, 265 (2) (577 SE2d 548) (2003). In this case, however, trial counsel was not ineffective for failing to obtain and introduce evidence about the plea. First, the existence of the plea only came to light because trial counsel made extraordinary efforts to track it down after he succeeded in interviewing the victim two days before trial, considered the child molestation arrest in light of the victim’s comments about being on probation in Fulton County, and looked up the victim in the Sex Offender Registry. Although counsel was not successful in determining the details of the plea before trial, his efforts to do so were well within the standard of effective assistance.

Decided March 18, 2011.

J. Scott Key, for appellant.

David McDade, District Attorney, James A. Dooley, Thomas E. Kegley, Assistant District Attorneys, for appellee.

Further, aside from the question of whether the victim should have been allowed to enter a first offender plea with his previous felony record and whether the trial court here could have made that determination, Strong has not shown a reasonable probability that the trial would have ended differently if his trial counsel had uncovered all the details about the Fulton County plea and cross-examined the victim about his possible bias toward the State. As the trial court observed, “[f]ive witnesses separately testified that Strong assaulted [the victims] with the gun.” Thus, even if the jury decided to completely disregard the victims’ testimony based on successful cross-examination, the testimony of three other eyewitnesses remained.

In light of the evidence, appellant was not able to establish there is a reasonable probability that, but for the alleged deficient performance of trial counsel, the outcome of appellant’s trial would have been different. Accordingly, the trial court did not err when it did not find ineffective assistance of counsel.

Allen, 286 Ga. at 398-399 (5) (a).

Judgment affirmed.

Blackwell and Dillard, JJ., concur.


author: Doyle, Judge.

text:
    A10A1968.
    ROBINSON v. THE STATE.
    (708 SE2d 303)
   Doyle, Judge.

Joseph Robinson was charged with three counts of child molestation and three counts of sexual battery. A Fulton County jury found him guilty of two counts each of child molestation and sexual battery, and he was acquitted of the remaining two counts. Robinson appeals the denial of his motion for new trial, arguing that the trial court erred by (1) instructing the jury to disregard evidence that the victim had sexual relations with her brother based on the rape shield statute; (2) violating the continuing witness rule by sending out with the jury a copy of his arrest warrant and the supporting affidavit; and (3) denying his motion for mistrial after the State improperly commented on his silence. He also contends that he received ineffective assistance of counsel. For the reasons that follow, we vacate and remand for new trial.

“On appeal from a criminal conviction, the evidence must be construed in [the] light most favorable to the verdict, and [Robinson] no longer enjoys a presumption of innocence.”

So viewed, the record shows that during a telephone conversation in August 2006, 11-year-old J. C. told her friend that she had been “raped” by Robinson, her older sister’s former boyfriend. J. C. told the friend that Robinson’s “thing went in, but it didn’t go in all the way,” and that Robinson had threatened to kill J. C. if she told anyone. The friend urged J. C. to talk to the friend’s mother, Diana House, who was a counselor and social worker, and J. C. told House that Robinson had raped her and threatened to hurt her mother if she told anyone about the rape. House encouraged J. C. to tell her mother about the assault, but instead J. C. told her mother that she should speak with House. J. C.’s mother, Iris Colvard, then called House, who relayed her conversation with J. C.

Colvard then spoke with J. C., who told her mother that on one occasion, she was at Robinson’s house when he pushed her on the bed, covered her mouth, put his hand down her pants, and rubbed her vagina; he also threatened J. C., Colvard, and the rest of their family if she told anyone about the incident. J. C. also relayed two other incidents, one during which Robinson “tried to touch her” while she was sitting on his lap in the car and another one in a basement during which Robinson forced her to take off her pants and “tried to feel on her again.” Colvard contacted the authorities, who began an investigation.

The police report from the initial responding officer stated that J. C. advised her mother that Robinson “did disrobe her and sexually assault her, making penetration of her vagina with his penis,” and that he threatened her. C. R. Hampton, an investigator with the child exploitation unit, interviewed J. C., who told him that Robinson touched her on three separate occasions, once at her house and twice at his house. According to Hampton’s report, J. C. explained that on one of the occasions, which occurred in the summer of 2005 in Robinson’s basement, Robinson took off her pants, unzipped his own pants, and “tried to kiss her and touch her between her legs.” A second incident occurred in Robinson’s car, when he had her sit in his lap and pulled down his pants, and she could feel his “thing on her butt.” J. C. reported that there was a third incident, but did not give any details. J. C. did not tell Hampton that she had been raped.

J. C. was also interviewed at the Children’s Advocacy Center, during which she told Heidi Reese-Anderson that Robinson had “raped her.” J. C. told Reese-Anderson that Robinson touched her inappropriately on three separate occasions, two times in his house and once in hers; J. C. did not relay an incident in an automobile. According to Reese-Anderson, J. C. told her that on one of the occasions, Robinson “tried to put his thing between her legs”; she never indicated that Robinson penetrated her vagina.

Robinson was charged with three counts of child molestation and three counts of sexual battery. At trial, J. C. testified that Robinson “raped” her. According to J. C., Robinson touched her during four separate incidents. The first occurred at his house in his room, and Robinson touched her vagina. The second time, J. C. was sitting on Robinson’s lap while he was driving the car, and he pulled down his shorts, pulled J. C.’s shorts up, and put his penis “inside” her, but “not all the way.” On a third occasion, J. C. was in Robinson’s basement when he instructed her to remove her pants and he touched her vagina with his finger. In the fourth and final incident, which also occurred at his house, Robinson put his hands “in [J. C.’s] vagina.” J. C. denied that Robinson threatened her, but she testified that she did not tell anyone about the incidents initially because she “was afraid” of Robinson.

The jury found Robinson guilty of two counts of child molestation and two counts of sexual battery, and he was acquitted of the remaining two counts. This appeal follows the denial of his motion for new trial.

1. Robinson argues that the trial court erred by instructing the jury to disregard certain evidence based on the rape shield statute, OCGA § 24-2-3. We agree.

During the trial, Robinson’s trial counsel elicited testimony that J. C.’s older sister discovered 11-year-old J. C. and her 12-year-old brother having sexual intercourse. After J. C.’s sister testified about the incident on direct and cross-examination, the State moved to strike the testimony on the basis that it violated the rape shield statute and requested a curative instruction. Initially, the trial court concluded that the State had waived any objection to the testimony by failing to object at the time it was offered and by cross-examining the witness on the matter. During further argument, Robinson’s trial counsel asserted that the State “opened the door” to the evidence by introducing testimony that the victim’s demeanor and character changed after the alleged molestation by Robinson (which occurred during the same time frame that J. C. and her brother were discovered having sex), and the trial court appeared to agree. The trial court asked the prosecutor, “What does the rape shield [statute] say precisely?” The prosecutor responded that, “It holds, Judge, that in cases concerning sexual offenses, such as aggravated sodomy, where the rape shield statute does not apply, the past sexual behavior of the victim with persons other than the defendant is not admissible on direct or cross-examination.” After concluding that Robinson had failed to give notice that he sought to introduce the evidence and had failed to seek a hearing as required by OCGA § 24-2-3 (c), the trial court granted the State’s motion to strike and instructed the jury to disregard evidence of the victim’s alleged sexual conduct with her brother.

The State’s explanation to the trial court regarding the rape shield statute was incorrect. OCGA § 24-2-3 (a) currently provides:

In any prosecution for a violation of Code Section 16-6-1, relating to rape; Code Section 16-6-2, relating to aggravated sodomy; Code Section 16-6-4, relating to aggravated child molestation; or Code Section 16-6-22.2, relating to aggravated sexual battery, evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses, except as provided in this Code section. For the purposes of this Code section, evidence of past sexual behavior includes, but is not limited to, evidence of the complaining witness’s marital history, mode of dress, general reputation for promiscuity, nonchas-tity, or sexual mores contrary to the community standards.

This statute was amended in 2005. Prior to the 2005 amendment, OCGA § 24-2-3 (a), provided, in relevant part: “In any prosecution for rape, evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses, except as provided in this Code section.” This Court previously interpreted the prior version of the rape shield statute as applying to child molestation cases until the Supreme Court of Georgia ruling in Abdulkadir v. State. In Abdulkadir, the Supreme Court held that the rape shield statute, “by its plain terms, applies only to prosecutions for rape,” reiterating that

in all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly. In so doing, the ordinary signification shall be applied to all words. Where the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly. In fact, where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden. Moreover, Georgia law provides that the express mention of one thing in an Act or statute implies the exclusion of all other things. In our reading of a statute, this Court is not authorized to disregard any of the words used therein unless the failure to do so would lead to an absurdity manifestly not intended by the legislature.

The Abdulkadir Court further noted that

[w]hile there may be compelling policy reasons to apply the rape shield statute in prosecutions for crimes other than rape, the statute’s terms state only that it applies to prosecutions for rape. That singular designation by the legislature indicates that the rape shield statute is excluded from prosecutions for all crimes other than rape. A court of law is not authorized to rewrite the statute by inserting additional language that would expand its application to include such other crimes. Any expansion of the rape shield statute’s applicability must come from the legislature, as it alone is entrusted with the authority to amend existing laws.

Following Abdulkadir, the legislature amended OCGA § 24-2-3 to extend the shield to “aggravated sodomy,” “aggravated child molestation,” and “aggravated sexual battery.” The amendment did not extend the rape shield statute to child molestation cases. Applying the reasoning and principles set forth in Abdulkadir, we hold that OCGA § 24-2-3, as it is currently written, does not apply to prosecutions for child molestation or sexual battery.

The State relies upon Purvis v. State, in which this Court stated in dicta that

OCGA § 24-2-3 (b) — applicable in child molestation cases — excludes evidence relating to the past sexual behavior of the complaining witness with some limited exceptions, including: “(a) to show that someone other than the defendant caused the injuries to the child; (b) to show lack of victim credibility if the victim’s prior allegations of molestation were false; and (c) to show other possible causes for the symptoms exhibited.”

This statement conflicts with our holding in this case and the express language of OCGA § 24-2-3 (a). We therefore disapprove of the above-quoted language in Purvis.

In the instant case, Robinson was charged with child molestation and sexual battery, neither of which is expressly listed in the rape shield statute.

Admission of evidence is a matter which rests largely within the sound discretion of the trial court and an appellate court will not interfere with its rulings absent abuse of that discretion. However, this court has held repeatedly that the failure to exercise discretion when the law vests discretion in a judge, is reversible error. This is made very clear in those cases where the judge lets it be known that he does not think he has any discretion,

The trial transcript clearly indicates that the trial court thought that the evidence regarding the victim’s sexual history should have been excluded by the rape shield statute and did not think it had discretion to admit the evidence. Thus, the trial court erred by applying OCGA § 24-2-3 (a) to this case and striking the testimony regarding the victim’s previous alleged sexual conduct with her brother based on its conclusion that the rape shield statute prohibited Robinson from presenting evidence regarding J. C.’s prior sexual history.

Nevertheless, the trial court’s error does not necessarily mandate a new trial. Rather, in order for an error to be grounds for reversal, the appellant must show not only error but ensuing harm. ... [A] reversal is not required if the evidence of guilt is overwhelming in that there is no reasonable probability that the verdict of the jury would have been different in the absence of this error.

In the instant case, the only direct evidence of Robinson’s guilt was J. C.’s testimony that Robinson sexually abused her. “In addition, the jury’s split verdict supports [Robinson’s] argument that even without the excluded testimony, the State’s case was far less than overwhelming.” And “[w]e cannot determine what role this excluded evidence would have played in the jury’s deliberations.” Therefore, because “we cannot say that it is highly probable that the error in excluding evidence of [J. C.’s] prior sexual history did not contribute to the jury’s verdict,” we vacate Robinson’s convictions for child molestation and sexual battery and remand the case for a new trial.

Decided March 18, 2011.

Steven E. Phillips, for appellant.

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

2. Based on our holding in Division 1, we need not address Robinson’s remaining enumerations of error.

Judgment vacated and case remanded.

Ellington, C. J., Smith, E J., Barnes, P. J., Miller, P. J., Phipps, P. J., Andrews, Mikell, Adams, Blackwell, Dillard and McFadden, JJ., concur.

       OCGA § 16-6-4 (a).

       OCGA § 16-6-22.1 (b).

       OCGA § 24-2-3.

       (Punctuation omitted.) Gresham v. State, 281 Ga. App. 116, 117 (635 SE2d 316) (2006).

       Robinson was 20 years old when he began dating J. C.’s 16-year-old sister.

       The trial court merged the two sexual battery counts into the child molestation counts for sentencing.

       See Ga. L. 2005, p. 27, § 13.1. See also Gresham, 281 Ga. App. at 118.

       See Gresham, 281 Ga. App. at 118-119.

       See, e.g., Carson v. State, 259 Ga. App. 21, 23-24 (4) (576 SE2d 12) (2002); Jarvis v. State, 253 Ga. App. 581, 583 (2) (560 SE2d 29) (2002); McGarity v. State, 224 Ga. App. 302, 303-304 (1) (480 SE2d 319) (1997); Flowers v. State, 220 Ga. App. 814, 816-817 (5) (468 SE2d 199) (1996).

       279 Ga. 122 (610 SE2d 50) (2005).

       Id. at 123 (2).

       (Punctuation and footnotes omitted; emphasis in original.) Id. at 123 (2).

       (Footnotes omitted; emphasis supplied.) Id. at 124 (2). The Supreme Court specifically disapproved this Court’s holdings that the rape shield statute applied to prosecutions for child molestation in Abdulkadir v. State, 264 Ga. App. 805, 807-808 (3) (592 SE2d 433) (2003); McGarity, 224 Ga. App. at 303-304 (1); and Flowers, 220 Ga. App. at 816 (5). See Abdulkadir, 279 Ga. at 124 (2), n. 15.

       (Emphasis supplied.) OCGA § 24-2-3 (a).

       See Cantu v. State, 304 Ga. App. 655, 656 (1) (697 SE2d 310) (2010) (noting that the rape shield statute applies to aggravated child molestation prosecutions, not prosecutions for child molestation).

       301 Ga. App. 648 (689 SE2d 53) (2009), rev’d on other grounds, 288 Ga. 865 (708 SE2d 283) (2011).

       Id. at 652 (2) (c), citing Williams v. State, 236 Ga. App. 667 (1) (512 SE2d 363) (1999). We note that Williams was decided prior to Abdulkadir, 279 Ga. at 124 (2) and the 2005 amendment to OCGA § 24-2-3.

       (Citation and punctuation omitted; emphasis supplied.) Gresham, 281 Ga. App. at 117-118.

       See Abdulkadir, 279 Ga. at 124 (2); Gresham, 281 Ga. App. at 118.

       (Citations and punctuation omitted.) Gresham, 281 Ga, App. at 119.

       Id.

       (Punctuation omitted.) Snelling v. State, 215 Ga. App. 263, 267 (1) (c) (450 SE2d 299) (1994).

       (Punctuation omitted.) Gresham, 281 Ga. App. at 120.

       We note that double jeopardy attaches and bars Robinson’s retrial on Counts 3 (child molestation) and 6 (sexual battery) because he was acquitted of those charges. See id. at 120, n. 18.