author: Branch, Judge.

text:
    A15A0511, A15A0512.
    ALVEAR v. SANDY SPRINGS TOYOTA, INC.; and vice versa.
    (775 SE2d 172)
   Branch, Judge.

Appellant Nadia Alvear brings the first of these companion appeals from a grant of summary judgment to Sandy Springs Toyota, Inc. (“SST”), in Alvear’s suit for fraud and other claims concerning her June 2012 purchase of a 2007 Honda Civic from the dealership that had, at the time of sale, an odometer reading of 3,650 miles. Prior to the sale to Alvear, an SST technician thought that the car had been driven many more miles than the odometer showed and told his superiors so. Alvear later learned that by June 2011, more than a year before she bought the Honda, a vehicle history report showed the car as having been driven approximately 120,000 miles, or more than thirty times its odometer reading at the time SST obtained the car. In Case No. A15A0511, Alvear argues that the trial court erred when it granted summary judgment to SST because genuine questions of material fact remain as to her claims for fraud and violation of the Fair Business Practices Act (“FBPA”) (OCGA § 10-1-390 et seq.). In Case No. A15A0512, SST argues that the trial court erred when it denied SST summary judgment on Alvear’s claim under Georgia’s odometer statute (OCGA § 40-8-5). We conclude that issues of fact remain as to Alvear’s fraud and odometer statute claims but that she did not comply with the ante litem requirement of the FBPA. We therefore affirm in part and reverse in part in Case No. A15A0511 and affirm in Case No. A15A0512.

On appeal from a grant of summary judgment, we view the facts in a light most favorable to the non-movant in order to determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the movant was entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga. App. 250, 251 (510 SE2d 541) (1998).

Viewed in favor of Alvear, the record shows that SST acquired the 2007 Honda Civic at issue in May 2012, when a customer traded in the car. An odometer disclosure statement completed by the seller and SST stated that the car had been driven 3,650 miles. An Auto-Check vehicle history report obtained by Alvear in February 2013 showed, however, that the odometer reading fell from 120,000 miles in June 2011 to only 2,490 miles in October 2011. The SST technician inspecting the car for possible resale noted the car’s low odometer reading on his report because he “couldn’t believe that it only had 3,000 miles on it” in light of its “wear.” The technician observed that the car was a “typical rally” car, with a “stiffened” suspension, custom wheels, and a “very loud” custom exhaust; substantial wear on its tires and rear brakes; and missing a spare tire and a radio code. The technician also noted his opinion that the car “[would] not pass emissions” because it lacked a catalytic converter. On the basis of these observations, the technician concluded that the car “was a high-mileage vehicle.” The technician then told his supervisor, who worked in the parts department, that he “didn’t think the car[’s mileage] was what [the odometer] says.” The technician also noted, however, that because modern odometers could not be rolled back because “the odometer will break or a blank screen will come up,” he “didn’t know what happened” to this car’s odometer.

Despite the technician’s expressed reservations about the car, SST placed it on its sales lot, where it attracted substantial attention and was given numerous test drives. The car passed an emissions test on June 1, 2012, at which time a catalytic converter was noted as “present.” At some point before its sale to Alvear, an SST employee reviewed an Auto-Check vehicle history report on the car. On June 5, Alvear went to the dealership and discussed the car with a saleswoman, who pointed out the car’s low mileage and said that it had only one prior owner. Although Alvear found it “hard ... to believe” that the car’s mileage was so low, the saleswoman answered her questions on the subject and “seemed pretty credible.”

After a test drive, and without asking for a vehicle history report, Alvear decided to purchase the car “as is,” with “no warranty.” At the time of purchase, Alvear received a document entitled “ODOMETER DISCLOSURE STATEMENT” that read as follows:

I, Sandy Springs Toyota [,] state that the odometer now reads 3650 (no tenths) miles and to the best of my knowledge that it reflects the actual mileage of the vehicle described below, unless one of the following statements is checked.
_(1) I hereby certify that to the best of my knowledge the odometer reading reflects the amount of mileage in excess of its mechanical limits.
_(2) I hereby certify that the odometer reading is NOT the actual mileage. WARNING: ODOMETER DISCREPANCY.

Neither of the two qualifying statements was marked. A “retail buyer’s order” apparently completed at the time of purchase listed the car’s mileage as “36506” with the last digit of this number written in by hand. This document also purported to certify “that to the best of [SST’s] knowledge[,] the odometer of 36506 reflects the actual mileage of the vehicle described above.” This document was signed only by the sales manager, however, and there is no evidence that Alvear received, saw or discussed it before buying the car.

Alvear drove the car for two or three months until its engine failed. Alvear first took the car to a Honda dealership, which gave her a vehicle report noting a problem with the odometer and told her that the engine needed replacing at a cost of $8,000. When Alvear declined the Honda dealership repair and returned to SST, SST refused to repair or take back the car. In January 2013, Alvear filed the instant suit for fraud, breach of contract, and violation of the Georgia odometer statute, later amending her complaint to include a violation of the FBPA. SST moved for partial summary judgment as to Alvear’s fraud, odometer statute, and FBPA claims as well as her request for punitive damages. The trial court granted SST summary judgment on Alvear’s fraud and FBPA claims but denied summary judgment on the odometer statute claim. These appeals followed.

Case No. A15A0511

1. In the first appeal, Alvear argues that the trial court erred when it granted SST summary judgment on her fraud claim because genuine issues of material fact remain as to that claim. We agree.

The five elements of a fraud claim are: “(1) false representation made by defendant; (2) scienter; (3) intention to induce plaintiff to act or refrain from acting in reliance by plaintiff; (4) justifiable reliance by plaintiff; and (5) damage to plaintiff.” Paulk v. Thomasville Ford Lincoln Mercury, 317 Ga. App. 780, 782 (1) (732 SE2d 297) (2012) (citation and punctuation omitted). As the Supreme Court of Georgia has recently repeated, a plaintiff asserting a fraud claim “must show not only that he relied on some misrepresentation, but [also that] his reliance was reasonable.” Raysoni v. Payless Auto Deals, 296 Ga. 156 (766 SE2d 24) (2014) (citation and footnote omitted).

Construed in favor of Alvear, the evidence shows that SST issued an odometer disclosure statement that misstated the mileage of the Honda as one-thirtieth of its actual mileage even after learning, through one of its employees, that the car’s condition belied the content of SST’s statement. Alvear’s evidence also shows that when she specifically asked a saleswoman about the car’s apparently low mileage, the saleswoman emphasized that feature of the car.

The Georgia fraud statute, OCGA § 51-6-2, specifies that “[m]ere concealment of a material fact, unless done in such a manner as to deceive and mislead, will not support an action[,]” id. at (a), and also that “[a] fraudulent or reckless representation of facts as true when they are not, if intended to deceive, is equivalent to a knowledge of their falsehood even if the party making the representation does not know that such facts are false.” Id. at (b). The question “[w]hether it was reasonable for one to rely upon a certain misrepresentation is generally a question for a jury.” Raysoni, 296 Ga. at 157 (citation omitted); see also Catrett v. Landmark Dodge, 253 Ga. App. 639, 641 (1) (560 SE2d 101) (2002). This record creates a question of fact as to whether SST issued a substantially inaccurate odometer statement, made “to the best of [SST’s] knowledge,” and purportedly reflecting “the actual mileage” of the Honda, even when more than one employee either knew that written statement to be false or recklessly disregarded the possibility that it was so, and when a saleswoman assured Alvear that the odometer was accurate. A question of fact therefore remains for a jury to determine whether SST’s representations to Alvear were fraudulent. OCGA § 51-6-2 (b); see also Marrale v. Gwinnett Place Ford, 271 Ga. App. 303, 309 (2) (609 SE2d 659) (2005) (in light of salesman’s lack of knowledge as to a car’s actual condition, his mispresentation that it “had never been in an accident” could amount to fraud under OCGA § 51-6-2 (b)).

To avoid this conclusion, SST argues that Alvear’s reliance was not reasonable, pointing to evidence that Alvear bought the car “as is” and that she could easily have obtained either a vehicle report or an independent inspection of the car. As our Supreme Court has recently indicated, however, when written materials received at the time of sale confirm a dealer’s misrepresentation as to a car’s condition, neither a written contract’s general disclaimer that a car is sold “as is” with “no warranty” nor a buyer’s failure to obtain an independent inspection of the vehicle can establish that the buyer was not sufficiently diligent in investigating the purchase as a matter of law. See Raysoni, 296 Ga. at 159-160 (a “general disclaimer of warranties,” including “AS IS NO WARRANTY” clause, which was “at least arguably, equivocal and limited,” did not preclude reasonable reliance on a vehicle report showing that a vehicle had not been damaged; dealer’s written advice to obtain an independent inspection “does not . . . squarely contradict the representations upon which [the plaintiff] bought the [vehicle]” and thus “[did] not make his reliance unreasonable as a matter of law”).

SST’s citation to Paulk, 317 Ga. App. 780, is also unavailing. In that case, a prospective buyer questioned a salesman about apparent damage to a car offered “as is.” Id. at 781. The salesman replied that although he was “not sure” about the damage, the car came with a manufacturer’s warranty such that the buyer should “feel safe, pretty much,” about the purchase. Id. Under these facts, we concluded, which showed only an “expression of uncertainty” as to the car’s condition, the buyer could show neither misrepresentation nor justifiable reliance. Id. at 783 (1). Here, by contrast, SST misrepresented in writing an inarguably material characteristic of the car — its mileage, and a saleswoman confirmed that misrepresentation under questioning by an initially skeptical Alvear. Because the evidence outlined above was thus sufficient to create jury questions on the issues of SST’s knowledge of the misrepresentation, its intent in making that misrepresentation, and Alvear’s justifiable reliance on it, the trial court erred when it granted SST summary judgment on Alvear’s fraud claim.

2. Alvear also contends that genuine issues of fact remain as to her claim under the FBPA, as to which the trial court granted summary judgment to SST on the ground that Alvear had failed to comply with OCGA § 10-1-399 (b). We disagree.

The Act outlaws “[u]nfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce[.]” OCGA § 10-1-393 (a). Unfair practices include representations that “goods or services are of a particular standard, quality, or grade or that goods are of a particular style or model, if they are of another.” OCGA § 10-1-393 (b) (7). Private actions for treble damages are authorized under the Act so long as the alleged violation involves “the breach of a duty owed to the consuming public in general” and thus has “at least some potential ‘impact on the consumer marketplace.’ ” Johnson v. GAPVT Motors, 292 Ga. App. 79, 84 (2) (663 SE2d 779) (2008), quoting Brown v. Morton, 274 Ga. App. 208, 211 (3) (617 SE2d 198) (2005). Offering a product for sale to the public triggers the prohibitions of the Act “if some deceptive act or practice is involved.” Johnson, 292 Ga. App. at 84 (2), quoting Catrett, supra, 253 Ga. App. at 642 (2).

To prevail on a private claim under the Act, “a plaintiff must establish three elements: violation of the Act, causation, and injury.” Johnson, 292 Ga. App. at 84 (2) (citation and punctuation omitted); see also Catrett, 253 Ga. App. at 642 (2). But an FBPA plaintiff must also comply with the ante litem requirement of OCGA § 10-1-399 (b), which provides:

At least 30 days prior to the filing of any such action, a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be delivered to any prospective respondent. . . .

On appeal, Alvear has failed to cite any evidence showing that she sent a written demand for relief to SST at any time before filing suit in January 2013. Instead, she asserts that because she filed suit months before amending her complaint to include her FBPA claim, SST had written notice of her claim more than 30 days before it was actually asserted. Construing the first version of a complaint as “written demand for relief” filed “prior to the filing of any such action” would render OCGA § 10-1-399 (b) meaningless, however. Because Alvear failed to make a written demand of the dealership at least 30 days before bringing her suit, the trial court did not err when it granted SST summary judgment as to Alvear’s FBPA claim. OCGA § 10-1-399 (b); Steed v. Fed. Nat. Mtg. Corp., 301 Ga. App. 801, 810 (2) (a) (689 SE2d 843) (2009) (affirming trial court’s grant of summary judgment under OCGA § 10-1-399 (b) when plaintiff “fail[ed] to demonstrate that the notice requirement was inapplicable in [his] case” and had “fail[ed] to deliver the proper statutory notice”). Compare Johnson, 292 Ga. App. at 85 (2) (car purchaser’s letter stating that dealership had “committed a fraud” on him when it sold him the car and that he had suffered financial injury as a result satisfied OCGA § 10-1-399 (b)); Lynas v. Williams, 216 Ga. App. 434, 435 (3) (a) (454 SE2d 570) (1995) (car owner’s pre-suit letter was sufficient to alert repairer of owner’s FBPA claim).

Case No. A15A0512

3. In the companion appeal, SST argues that the trial court erred when it failed to grant SST summary judgment as to Alvear’s claim under the odometer statute, OCGA § 40-8-5. We disagree.

The statute provides in relevant part:

(a) It shall be unlawful for any person knowingly to tamper with, adjust, alter, change, set back, disconnect, or fail to connect an odometer of a motor vehicle, or to cause any of the foregoing to occur to an odometer of a motor vehicle, so as to reflect a lower mileage than the motor vehicle has actually been drivenf.]
(c) It shall be unlawful for any person knowingly to sell or attempt to sell a motor vehicle which reflects a lower mileage than the motor vehicle actually has been driven due to any illegal acts outlined in subsection (a) of this Code section.

OCGA § 40-8-5 (emphasis supplied). Where there is “considerable conflict in the evidence regarding the actual mileage” of a car, “[i]t is for a jury to determine whether [a seller] took any action to alter the odometer or had any knowledge that it had been altered.” Joseph Charles Parrish, Inc. v. Hill, 173 Ga. App. 97, 99 (3) (325 SE2d 595) (1984).

Although the trial court found “no evidence” that SST “knowingly sold the vehicle with an altered odometer,” it also noted that the SST technician “had reason to suspect” that the car’s odometer reading “was inaccurate” and that the technician informed his supervisor of his suspicions as to the car. SST argues that the first of these findings bars recovery under the odometer statute. But Alvear could survive summary judgment under subsection (c) if any evidence supported a reasonable inference that SST attempted to sell her a car with knowledge that the car’s odometer did not reflect its actual mileage as a result of “any illegal acts” taken by “any person.”

Here, SST’s own technician actually suspected that the Honda’s odometer reading was inaccurate, and reported his suspicion to his superior, with the result that SST had a duty to investigate before selling the car to Alvear with a certification that the odometer reading was accurate. Winder v. Paul Light’s Buckhead Jeep Eagle Chrysler Plymouth, 249 Ga. App. 707, 711 (2) (549 SE2d 515) (2001). In Winder, for example, the evidence included testimony from a dealership’s mechanics that the car at issue “appeared to have substantially more miles on it than shown by the odometer” such that the car “had been driven far in excess” of the mileage reflected on the odometer when the dealership acquired the car. Id. at 710-711. We reasoned that “[i]f [the dealership] had reason to suspect that the car’s odometer reading was inaccurate, then it had a duty to reasonably investigate that suspicion before selling the car to Winder and giving her an odometer disclosure statement certifying that the odometer reading was accurate.” Id. at 711. Specifically, a factfinder could conclude from the testimony of the technician who inspected the car that the dealership “had reason to suspect that the... car had been driven more miles than the odometer reflected” and “knew or should have known by conducting a reasonable investigation that the odometer reading was not accurate[.]” Id. As we have described in greater detail above, this case presents just this evidence, with the result that the trial court did not err when it denied SST summary judgment as to Alvear’s claims under OCGA § 40-8-5 (c). Id. (reversing grant of summary judgment as to a claim against car seller under OCGA § 40-8-5 (c)).

Decided July 7, 2015.

Cuadra & Patel, Norman H. Cuadra, Chirag Patel, for appellant.

Magill Atkinson Dermer, David M. Atkinson, Adam M. Masarek, for appellee.

Judgment affirmed in Case No. A15A0512. Judgment affirmed in part and reversed in part in Case No. A15A0511.

Andrews, P. J., concurs. Miller, J., concurs in judgment only.

       This report does not appear in the record.

       The saleswoman’s statements to Alvear were offered not for their truth but for the fact that they were made, and are thus not hearsay. See OCGA § 24-8-801 (c) (defining hearsay as including a statement “offered in evidence to prove the truth of the matter asserted”).

       We understand that Raysoni found evidence sufficient to create a question of fact as to the “limited” nature of the disclaimer in the sales contract at issue itself, such that the trial court erred in dismissing the plaintiff’s suit for fraud and other claims. 296 Ga. at 159. Here, the fact that Alvear produced evidence outside of the language of her contract with SST does not change the result that SST’s representations as to the accuracy of the car’s odometer create genuine issues of fact as to Alvear’s claims.


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A15A0544.
    WILLIAMS v. THE STATE.
    (775 SE2d 178)
   McFADDEN, Judge.

After a jury trial, Demarques Lee Williams was convicted of aggravated assault and aggravated battery. In this appeal, he argues that the trial court should have merged the convictions for sentencing because they arose from the same course of conduct. We find that the trial court did not err in declining to merge the convictions because the aggravated assault was a separate act from the ensuing act of aggravated battery. Williams also challenges the sufficiency of the evidence, but we find that the evidence supports the convictions. We therefore affirm.

1. Facts.

When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citations and punctuation omitted).

Viewed in this light, the evidence showed that the victim was invited to a Christmas party at an apartment complex in Clayton County. When he got there, Williams asked him to play dice. They began playing at the back of the victim’s van. The victim won all of Williams’ money. Williams left, and the victim continued playing with another person. Williams came back with another $30 or $40, and lost that, too, and left again. Williams returned again, approaching the victim from behind. He said something, and the victim turned to see that Williams had a gun pointed to his head. The victim pushed Williams’ hand away. Williams came back swinging and hit the victim with the pistol. The victim grabbed Williams, and they tussled. Williams then shot the victim, severing his spine. The victim is now confined to a wheelchair.

Williams testified at trial that he and the victim began fighting when the victim insulted his cousin. Williams testified that he shot the victim when he saw the victim reaching for his weapon.

Williams argues that the evidence is insufficient to support the aggravated assault conviction because it shows that the victim was not afraid. OCGA § 16-5-21 (b) (2) provides, “A person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]” Contrary to Williams’ argument, the statute does not require “that the victim have a reasonable fear of immediately receiving a violent injury but rather that the victim have a reasonable perception that he is about to receive a violent injury.” Moore v. State, 286 Ga. App. 313, 316 (1) (649 SE2d 337) (2007) (citation omitted). “Reasonable apprehension of injury is not the same as simple fear, and the fact that the victim does not necessarily experience fear does not preclude a finding of reasonable apprehension.” Howard v. State, 288 Ga. 741, 742 (2) (707 SE2d 80) (2011) (citations and punctuation omitted).

Decided July 7, 2015.

Stanley W. Schoolcraft III, for appellant.

Williams further argues that both convictions must be reversed because he acted in self-defense.

But the question of whether [Williams] acted in self-defense was solely for the jury, which obviously resolved the issue against [him], [Williams] in effect asks us to reweigh the evidence to place greater credence in [his] justification defense than did the jury, but this court does not weigh the evidence or assess the credibility of witnesses.

Carter v. State, 303 Ga. App. 142, 144 (1) (692 SE2d 753) (2010) (citations and punctuation omitted).

We conclude that the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Williams was guilty of the crimes of which he was convicted. Jackson, supra, 443 U. S. at 319 (III) (B).

2. Merger.

Williams argues that the two crimes merged because they arose from the same course of conduct. We disagree.

After Williams initially pointed the gun at the victim’s head, the victim pushed Williams’ hand away. Williams came back swinging and hit the victim with the pistol. The victim grabbed Williams, and they tussled. Only then did Williams shoot the victim. Williams’ aggravated assault caused the victim

to move defensively, and [Williams] then took a separate action of moving toward [the victim], which led to the struggle that resulted in [the victim] getting shot in [the spine]. It follows that [Williams’] initial act of pointing the gun at [the victim’s head], an aggravated assault, was a separate act from the ensuing act[ ] of aggravated battery. Accordingly, the crimes do not merge.

Thomas v. State, 325 Ga. App. 682, 684 (2) (754 SE2d 661) (2014) (citations and footnotes omitted).

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.


author: Ray, Judge.

text:
    A15A0618.
    TIGNER v. THE STATE.
    (775 SE2d 180)
   Ray, Judge.

A Fulton County jury found Demarius Tigner guilty on four counts of aggravated assault; two counts each of armed robbery, criminal attempt to commit armed robbery, and theft by receiving stolen property; and one count of possession of a firearm during the commission of a felony. On appeal, Tigner contends that the evidence was insufficient to support his conviction on one of the counts of theft by receiving. Tigner does not challenge his convictions on the remaining offenses. For the reasons that follow, we reverse his conviction only as to the one count of theft by receiving at issue.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the [defendant] is no longer entitled to the presumption of innocence.” (Citation omitted.) Newsome v. State, 324 Ga. App. 665, 665 (751 SE2d 474) (2013). In determining the sufficiency of the evidence, we neither weigh the evidence nor assess the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the appellant guilty of the crime charged beyond a reasonable doubt. Byrd v. State, 325 Ga. App. 24, 24 (752 SE2d 84) (2013).

The evidence shows that on September 10, 2009, Jocquilynn Millines was walking to her car when she was approached by two men. One of the men had a gun, and Millines was ordered to get on the ground. After the men took her car keys and cell phone, one of the men asked her for money. When Millines stated that she did not have any, the two men got in her car and drove away. The vehicle stolen from Millines was a silver, 2008 Pontiac Grand Prix. She had recently purchased the car, and it still had the drive-out dealer tag affixed. During the subsequent investigation, the police presented Millines with photographic lineups of possible suspects. However, she was unable to identify the two perpetrators from those lineups.

Two days later, on September 12, 2009, Millines’s stolen car was used during the commission of two armed robberies and two attempted armed robberies. Based on witness testimony, the car had several occupants at that time, and the evidence shows that Tigner was one of the passengers. Shortly after the victims reported the incidents to the police, a police officer located a car matching the description given by the victims parked in the driveway of a residence. Police officers detained four men who were found at the scene, later identified as Tigner, Fabian Avery, Lawrence Burton, and Randy Redding. Three of the victims were later able to identify these men as the perpetrators.

At trial, Burton testified that he had obtained the car that was used on September 12, 2009, from a friend who was not involved in the case. There was no evidence presented at trial to show that Tigner was involved in the previous theft of Millines’s car or that he knew, or should have known, that the car had been stolen.

On appeal, Tigner contends that the evidence was insufficient to support his conviction for theft by receiving Millines’s stolen car. We agree.

Pursuant to OCGA § 16-8-7 (a),

[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.

All the evidence presented indicates that Tigner was a passenger in the stolen car, not the driver. Therefore, we must consider whether the State presented sufficient evidence that Tigner knew the car was stolen and that he acquired possession or control of the car or otherwise actively aided or abetted in the theft of the car.

[RJiding in a stolen . . . automobile as a passenger does not support a conviction for theft by receiving unless the accused also, at some point, acquires possession of or controls the vehicle, i.e., has the right to exercise power over a corporeal thing, or there exists some evidence, either direct or circumstantial, that the accused was a party to the crime by aiding and abetting its commission.

(Citations and punctuation omitted.) In the Interest of C. W., 226 Ga. App. 30, 31 (485 SE2d 561) (1997).

In Hurston v. State, 202 Ga. App. 311 (414 SE2d 303) (1991) (physical precedent only), we concluded that the State presented sufficient evidence that the defendant passenger knew the car was stolen by establishing that: the defendant admitted doubting the car belonged to the driver; the steering wheel was damaged; the car was driven without keys; personal papers including the car registration in the owner’s name were strewn about the disheveled interior; and a picture of the owner’s daughter was displayed on a visor. Id. at 312-313 (1). We determined that the State presented sufficient evidence of “possession or control” as required by OCGA § 16-8-7 by establishing that the driver “left [the defendant] alone in the car with the vehicle running when he went into the convenience store.” Id. at 313 (1).

Similarly, in Sanders v. State, 204 Ga. App. 545 (419 SE2d 759) (1992), we affirmed the defendant passenger’s conviction of theft by receiving where the State showed that: the defendant was in the car only a few hours after it was stolen; the owner’s personal items were strewn about the car; the steering column was damaged; the car was driven without keys; the defendant fled the scene when stopped by a police officer; and the defendant had in his possession items “that appeared to have been taken from the car[.]” Id. at 546 (1) (a).

Finally, in Johnson v. State, 236 Ga. App. 356 (511 SE2d 921) (1999), we affirmed the defendants’ convictions for theft by receiving a stolen vehicle where the evidence showed that: the defendants admitted that the car was stolen; the car was used in an armed robbery in which the defendants participated, after which a chase ensued; and the steering column was damaged. Id. at 357 (1).

Unlike the cases cited above, in the case before us, the State presented no evidence to show that it would have been readily apparent to Tigner that the car had been stolen, that he had taken items from the car that belonged to Millines, or that he admitted doubts as to the car’s ownership. Furthermore, the State presented no evidence that Tigner exerted possession or control over the car or otherwise participated in the theft of the car. The evidence presented was that Tigner was later a passenger in the car and had participated in the crimes that took place on September 12, 2009. As the evidence was insufficient to show that Tigner knew or should have known the car was stolen, and because there was no evidence to show that he possessed or controlled the car or was involved in the theft of the car, his conviction of theft by receiving a stolen motor vehicle must be reversed. See In the Interest of C. W., supra. Accord Morgan v. State, 280 Ga. App. 646, 648-650 (634 SE2d 818) (2006) (defendant passenger’s conviction for theft by receiving motor vehicle reversed where there was no evidence that defendant possessed or exercised control over the car or that he aided or abetted in the theft); Harris v. State, 247 Ga. App. 41, 42 (543 SE2d 75) (2000) (same). See generally Owens v. State, 192 Ga. App. 335, 340 (1) (b) (384 SE2d 920) (1989) (the fact that defendant was guilty of another crime tried jointly with the theft by receiving charge was simply insufficient evidence to authorize a finding, beyond a reasonable doubt, that he was in possession or control of the stolen property).

Decided July 7, 2015.

Steven E. Phillips, John R. Mayer, for appellant.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellee.

Applying the foregoing authorities to the particular facts of this case, we must reverse Tigner’s conviction for theft by receiving stolen motor vehicle. However, our holding in no way affects his convictions on the remaining offenses.

Judgment reversed in part.

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

       The State did not attempt to have Millines identify Tigner at trial.

       It was later determined that the residence belonged to Sheneal Redding and her two sons, Randy and Lamarkus Redding.


author: MCFADDEN, Judge.

text:
    A15A0621.
    BURDEN v. THE STATE.
    (775 SE2d 183)
   MCFADDEN, Judge.

A jury found Ishmael Burden guilty of aggravated assault. The trial court entered judgment of conviction, imposed a 15-year sentence and denied a motion for new trial. Burden appeals, claiming that the trial court erred in overruling an objection to a leading question by the state, failing to give a jury charge on simple assault as a lesser included offense, refusing to allow evidence of prior acts of violence by the victim and admitting Burden’s confession into evidence. However, the challenged question was not leading, any error in the jury charge was harmless, the trial court did not abuse its discretion in excluding evidence of prior acts by the victim and the trial court did not clearly err in admitting the confession. We therefore affirm.

Construed in favor of the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that on March 7, 2011, Burden called a taxicab company for a ride, giving a false phone number and home address. At approximately 1:30 a.m., the taxi driver dispatched to the location found Burden and an accomplice waiting near the address. Once inside the cab, Burden and his accomplice attacked the driver. Burden hit the driver on the head as his accomplice sprayed the driver with pepper spray. During the attack, Burden and the accomplice demanded money from the driver and tried to reach into his pockets. When the driver began to drive erratically, Burden and his accomplice jumped out of the moving vehicle and fled. The police were contacted and subsequently-apprehended Burden and the accomplice. Burden gave a statement to the police, confessing that he and his accomplice had planned to rob the taxi driver, that they had hit and pepper-sprayed him and that they had tried to take his money.

1. Leading question.

Burden claims that the trial court erred in overruling his objection to an improper leading question when the prosecutor asked the victim, “Was any money demanded of you?” But contrary to Burden’s claim, this was not a leading question because it did not suggest a desired answer, and instead simply called for a “yes” or “no” response from the witness.

“A question is leading when it is so framed as to suggest to the witness the answer which is desired; on the other hand, a question not suggesting the desired answer is not leading where it inquires only into a single fact.” Milner v. State, 258 Ga.App. 425, 429 (1) (574 SE2d 457) (2002) (citations and punctuation omitted). Thus, “a question is not open to the objection that it is leading when it does not suggest the answer desired. [Cits.]” Ealey v. State, 139 Ga. App. 110, 111 (227 SE2d 902) (1976). Because the question here inquired only into a single fact and did not suggest an answer, the trial court properly overruled Burden’s objection. See Riley v. State, 268 Ga. 640, 642 (2) (d) (491 SE2d 802) (1997) (question not leading where it asked for a “yes or no” response); Milner, supra (no improper leading where “state propounded a yes-or-no question”).

2. Jury charge.

Burden contends that the trial court erred in failing to give a jury charge on simple assault as a lesser included offense of aggravated assault. However, even if we assume error, “we hold that in light of the overwhelming evidence against [Burden, including his confession], it is highly probable that the failure to give this charge did not contribute to the verdict.” Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994). Accordingly, any error in the trial court’s failure to charge simple assault as a lesser included offense was harmless. See Holeman v. State, 226 Ga. App. 879, 880 (1) (487 SE2d 700) (1997) (harmless error in failing to give lesser included offense charge where there was overwhelming evidence that defendant committed aggravated assault).

3. Prior acts of victim.

Burden argues that the trial court erred in excluding evidence of prior acts of violence by the victim against third parties. The argument is without merit.

“An exception to the general rule that a victim’s violent character is rarely relevant in a criminal proceeding exists when a defendant claims his actions were justified and offers evidence that the victim was the aggressor. [Cit.]” Smith v. State, 292 Ga. 316, 317-318 (2) (737 SE2d 677) (2013). Under that exception, evidence of a victim’s specific acts of violence against third parties is admissible when a defendant makes a prima facie showing of justification, follows certain procedural requirements, “and establishes the existence of the prior violent acts by competent evidence.” Arnold v. State, 286 Ga. 418, 419 (2) (687 SE2d 836) (2010) (citations omitted). “We review the trial court’s decision to exclude evidence of a victim’s acts of violence against third parties only for abuse of discretion. [Cit.]” Slaughter v. State, 292 Ga. 573, 576 (2) (740 SE2d 119) (2013).

Here, during the hearing on the motion to admit such evidence, Burden relied on the victim’s prior criminal record, but “offer[ed] no witnesses or other evidence to establish the facts underlying the [prior] crime[s].” Arnold, supra at 420 (2). Likewise, on appeal, he simply refers to the prior criminal record and a protective order obtained by the victim’s spouse. Thus, Burden has not met his burden of introducing competent evidence that “meet[s] the requirements for admission of [specific] violent acts by the victim against third parties [.]” Id. Accordingly, the trial court did not abuse its discretion in excluding the evidence. See Brown v. State, 295 Ga. 804, 811-813 (5) (c) (764 SE2d 376) (2014) (no abuse of discretion in excluding evidence where defendant proffered only inadmissible hearsay police reports to prove alleged prior acts of violence by victim).

Moreover, “[e]ven assuming the trial court abused its discretion in excluding the evidence, ... any error was harmless in light of the overwhelming evidence against [Burden].” Bennett v. State, 289 Ga. App. 110, 114 (2) (657 SE2d 6) (2008). See also Allen v. State, 288 Ga. 263, 268 (6) (702 SE2d 869) (2010) (given overwhelming evidence of appellant’s guilt, highly probable that the erroneous exclusion of evidence did not affect the verdict); Westbrook v. State, 291 Ga. 60, 65 (4) (d) (727 SE2d 473) (2012) (in context of ineffective assistance claim, finding no reasonable probability that failure to present evidence of victim’s acts of violence against third parties would have resulted in different verdict where there was overwhelming evidence of guilt).

4. Denial of motion to suppress confession.

The trial court did not err in denying Burden’s motion to suppress evidence of his confession. At the time of trial, OCGA § 24-3-50 provided that “[t]o make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” The hope of benefit “that will render a confession involuntary under OCGA § 24-3-50 must relate to the charge or sentence facing the suspect.” White v. State, 266 Ga. 134, 135 (3) (465 SE2d 277) (1996). Here, while the detective interviewing Burden told him that he might garner sympathy by being honest and forthcoming, the officer did not promise a lighter sentence or reduced charges. Such “[e]xhortations to tell the truth are not a hope of benefit that renders a confession inadmissible under OCGA § 24-3-50.” Cantrell v. State, 299 Ga. App. 746, 748 (1) (683 SE2d 676) (2009).

Decided July 7, 2015.

The Wotorson Firm, Ronnie B. Wotorson, for appellant.

D. Victor Reynolds, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

Likewise, a detective’s statement that he was getting “pissed off” did not amount to a threat of injury that renders the confession inadmissible. At the hearing on the motion to suppress, the detective testified that Burden giggled when the detective used that phrase and thus he did not think Burden was intimidated. “Physical or mental torture is the type of fear of injury that prevents a confession from being admissible pursuant to former OCGA § 24-3-50.” Browner v. State, 296 Ga. 138, 142 (2) (765 SE2d 348) (2014) (citations omitted). Here, while we do not condone the detective’s choice of words, there simply is no evidence that they amounted to a threat that would give rise to any such fear of injury, and the trial court’s determination that the confession was not the result of any intimidation or threats is not clearly erroneous. See Raulerson v. State, 268 Ga. 623, 627 (2) (b) (491 SE2d 791) (1997) (trial court’s admission of confession upheld where defendant claimed confession was product of intimidation because interrogating officer became angry during interview and brushed back jacket revealing gun). “Considering the totality of the circumstances, the trial court did not clearly err in admitting [Burden’s] statement.” Ashmore v. State, 323 Ga. App. 329, 332 (1) (746 SE2d 927) (2013).

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.

       Under the current Evidence Code, OCGA § 24-8-824 similarly provides that “[t]o make a confession admissible, it shall have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.”


author: Boggs, Judge.

text:
    A15A0459.
    BULLOCH COUNTY BOARD OF COMMISSIONERS v. WILLIAMS.
    (773 SE2d 37)
   Boggs, Judge.

In this discretionary appeal, the Bulloch County Board of Commissioners (“the Board”) appeals from a superior court order reversing its denial of a conditional use permit for a personal care home. In related enumerations of error, the Board contends that the trial court erred by failing to properly apply the “any evidence” standard of review to a local government body’s zoning decision. For the reasons explained below, we agree and therefore reverse.

When reviewing a local governing body’s zoning decision, the superior court applies the any evidence standard of review. In the appellate courts, the standard of review is whether there is any evidence supporting the decision of the local governing body, not whether there is any evidence supporting the decision of the superior court.

(Citation and punctuation omitted.) Jackson County v. Earth Resources, 280 Ga. 389, 391 (627 SE2d 569) (2006).

So viewed, the record shows that Kimberly Williams applied for a conditional use permit to operate a personal care home on 7.52 acres on Ponderosa Road in an Agricultural 5 acre (AG-5) zoning district. The Bulloch County Planning and Zoning Department conducted and completed a multi-point written assessment of seven conditional use standards. It recommended approval of the application with the following conditions: (1) approval of the personal care home by the State; (2) the personal care home must begin operation within six months of approval; and (3) the permit would be limited to Kimberly Williams. The Planning and Zoning Commission also recommended approval of the request by a vote of 3-1.

The written assessment included the following information: fire service would be available within 6.8 miles (response time 23 minutes) ; response time from the County Sheriff’s Department is approximately 18 minutes, but depending on patrol patterns the “response time may be greater or lesser”; “the capacity and general condition of the roads accessing the proposed development is good [and] Ponderosa Road is a county maintained dirt road”; minimal impact on the existing school; approval “should not create a significant traffic impact”; street providing access to proposed use is adequate; access into and out of the property is adequate for traffic and pedestrian safety, the anticipated volume of traffic, and access by emergency vehicles; hours and manner of operation would not have adverse effects on other properties in the area; no evidence that proposed change in use should injure or detract from existing neighborhoods; and that the proposed use would be appropriate for a rural open area.

In a meeting before the Board, it was presented with the written departmental review recommending approval with the above-stated conditions. Additionally, both Williams and her attorney spoke on behalf of her application, while an attorney representing adjoining landowners spoke against the application.

Williams advised the Board “that the personal care home would have to meet all the local and state requirements and also it would be governed by the Department of Community Affairs”; that “by state law they can only have up to six (6) patients in the home and that none of the patients would have any type of dementia or Alzheimer disease”; and that “there should not be any safety issues” because “they will have supervision twenty-four (24) hours per day and seven (7) days per week.”

An attorney representing 11 adjacent landowners stated that several reasons supported a denial of the application, including: (1) the personal care home could only be reached by traveling down an unpaved “washboard dirt road, especially during inclement weather”; (2) “the driveway is narrow and hard to find”; (3) the distance from the home to the nearest hospitals was over 18 miles; and (4) an adjacent property owner was concerned about liability if a personal care home resident were to fall in a pond located within 150 feet of the proposed personal care home. The Board voted to deny the application with a 3-2 vote.

The Bulloch County Zoning Code states:

The planning and zoning commission and board of commissioners will consider the following standards in arriving at a decision on the conditional use:
(1) Is the type of street providing access to the use adequate to serve the proposed conditional use?
(2) Is access into and out of the property adequate to provide for traffic and pedestrian safety, the anticipated volume of traffic flow, and access by emergency vehicles?
(3) Are public facilities such as schools, EMS, sheriff and fire protection adequate to serve the conditional use?
(4) Are refuse, service, parking and loading areas on the property located or screened to protect other properties in the area from such adverse effects as noise, light, glare or odor?
(5) Will the hours and manner of operation of the conditional use have no adverse effects on other properties in the area?

Decided June 10, 2015

Reconsideration denied July 8, 2015.

Brown Rountree, Laura H. Wheaton, for appellant.

R. H. Reeves III; Edenfield, Cox, Bruce & Classens, Michael J. Classens, for appellee.

(6) Will the height, size, or location of the buildings or other structures on the property be compatible with the height, size, or location of buildings or other structures on neighboring properties?
(7) Is the proposed conditional use consistent with the purpose and intent of the zoning ordinance?

County Code, Appendix C, § 413 (c). The code lists a personal care home as a permissible conditional use in areas zoned AG-5 “upon approval by the board of commissioners.” The Board “is not bound by the recommendation of the planning and zoning commission,” and “[t]he power to approve a conditional use . . . rests with the board of commissioners.” County Code, Appendix C, § 410 (f) (1) and (5).

Where, as here, a special permit is sought under terms set out in the local ordinance, the local governing body “acts in a quasi-judicial capacity to determine the facts and apply the law.” Dougherty County v. Webb, 256 Ga. 474, 478, n. 3 (350 SE2d 457) (1986). And “[i]n an administrative or quasi-judicial proceeding, due process requires only an informal hearing, not strict adherence to the rules of evidence.” Chamblee Visuals v. City of Chamblee, 270 Ga. 33, 35 (4) (506 SE2d 113) (1998). While “a verbatim transcript of the proceedings is preferred to assist the courts on appeal, the comprehensive rendition of the discussion in the minutes provides an adequate basis for judicial review.” Jackson v. Spalding County, 265 Ga. 792, 795 (4) (462 SE2d 361) (1995).

Here, the information before the Board regarding the washboard dirt road and the greater distance from the nearest hospital in comparison to other approved personal care homes adequately supports the Board’s decision to deny the application for a conditional use permit. We must therefore reverse the superior court’s order directing the Board of Commissioners to grant the application.

Judgment reversed.

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

Taulbee, Rushing, Snipes, Marsh & Hodgin, Christopher R. Gohagan, amicus curiae.

       We note that the county zoning ordinance states: “Any person desiring a transcript of the hearing must arrange for a court reporter at their own expense.” County Code, Appendix C, § 410 (d) (1).


author: Dillard, Judge.

text:
    A15A0072.
    THE STATE v. REYNOLDS.
    (775 SE2d 187)
   Dillard, Judge.

A jury convicted Shareef Reynolds of two counts of aggravated assault, two counts of false imprisonment, armed robbery, burglary, theft by taking, possession of a firearm during the commission of a felony, possession of marijuana less than one ounce, and possession of a firearm by a convicted felon. Thereafter, Reynolds retained new counsel and filed a motion for a new trial, which the trial court granted because it found that he received ineffective assistance of counsel when his trial counsel intentionally elicited testimony about his prior drug convictions. The State appeals, arguing that the trial court erred in granting Reynolds a new trial because his counsel’s decision to present evidence of his prior convictions was in furtherance of a reasonable trial strategy. We agree, and for the reasons set forth infra, reverse.

In the case sub judice, the evidence shows that on July 20, 2007 at around 3:00 a.m., the victims, two female roommates, were asleep in an upstairs bedroom of their home when two men kicked in the balcony door to the bedroom, pointed guns at them, demanded money, and told the victims to give them “everything that [they] had.” Then, one of the perpetrators pointed a gun at a victim and asked where she kept her money. The victim grabbed the gun, but the assailant pulled it back and struck her in the face with it. At some point, a third man — later identified as Reynolds — arrived and held the victims at gunpoint while the other men ransacked the home. And when one of the victims began praying out loud, Reynolds told her that “he was trying to make this a robbery, don’t make it into a homicide.” In the end, the perpetrators stole several items from the victims, including an Xbox, a computer, clothes, a necklace, $800 in cash, and a car. Immediately after the perpetrators left, the victims called 911 to report the robbery. A few minutes later, a police officer arrived, and the victims provided him with a detailed description of their attackers.

Shortly thereafter, an officer with the Palmetto Police Department heard a radio alert to be on the lookout for a “getaway car” connected to a home invasion. Three to four minutes later, the officer observed a vehicle, with two male occupants, that matched the description of the stolen car. The officer activated his flashing lights to stop the vehicle, but instead of stopping, the vehicle slowed down and the men fled from the car. The driver and passenger sprinted in opposite directions, and the officer gave chase to the driver. After the driver — who was later identified as Mark Newsome — was detained, the officer provided a description of the passenger to other officers who arrived on the scene, and eventually, one of them apprehended a man matching that description. The passenger — who was later identified as Reynolds — had mud and debris on his clothes, and was in possession of marijuana. During the investigation that ensued, weapons and items that were taken from the victims were found inside the stolen car. Additionally, a latent fingerprint, which matched Reynolds’s right thumbprint, was lifted from the exterior of the stolen car near the right front-door handle.

Reynolds and Newsome were charged, via indictment, with two counts of aggravated assault, two counts of false imprisonment, armed robbery, burglary, theft by taking, possession of a firearm during the commission of a felony, possession of marijuana less than one ounce, and possession of a firearm by a convicted felon. And after a joint trial, a jury convicted them of all charges.

Reynolds obtained new counsel and filed a motion for a new trial, arguing, inter alia, that he received ineffective assistance of counsel when his trial counsel presented evidence that he had two prior convictions for possession with intent to distribute cocaine. After a hearing, the trial court granted Reynolds’s motion, finding that, instead of presenting evidence of Reynolds’s convictions, effective counsel would have objected to the admission of those convictions in the event that the State sought to admit them. The court further noted that, if the State had attempted to introduce Reynolds’s prior convictions to impeach him, the convictions would have been inadmissible because the State did not have certified copies. In sum, the court concluded that, having heard the evidence in the case and judged the credibility of the witnesses, there was a probability of a different result if the convictions had not been introduced. This appeal by the State follows.

In its sole enumeration of error, the State argues that the trial court erred in granting Reynolds’s motion for a new trial because his trial counsel’s decision to present evidence of his prior convictions was in furtherance of a reasonable trial strategy. Specifically, the State contends that counsel’s reasonable strategy was to portray Reynolds as a drug dealer to support the defense’s theory that his fingerprint was found on the stolen car because he sold drugs to someone driving the same car, not because he was involved in the armed robbery. We agree.

At the outset, we note that, while the first grant of a new trial on general grounds is reviewed for abuse of discretion, this Court reviews “de novo the trial court’s first grant of a new trial on a special ground involving a question of law.” And here, the trial court granted Reynolds a new trial on a special ground, namely that defense counsel’s deficiencies were so serious that they deprived Reynolds of his Sixth Amendment right to effective assistance of counsel. And the determination of whether Reynolds received effective assistance of counsel “involves a mixed question of law and fact, which requires the Court to employ two different standards of review.” Accordingly, we review de novo the trial court’s decision as to any questions of law, while applying the clearly-erroneous standard of review to the trial court’s factual findings and credibility determinations.

Specifically, in evaluating claims of ineffective assistance of counsel, we apply the two-pronged test established in Strickland v. Washington. Under this test, the appellant first must show that counsel’s performance was deficient and, second, that he was prejudiced by counsel’s deficient performance. Moreover, there is a “strong presumption” that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that “any challenged action by trial counsel might be considered sound trial strategy.” In applying the second prong, the question is whether “there exists a reasonable probability that, but for his counsel’s errors, the jury would have had a reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” While this burden is not impossible to carry, it is “a heavy one.” With these guiding principles in mind, we turn now to the State’s specific claim of error.

Initially, we note that Reynolds testified in his own defense and denied any involvement in the robbery. But Reynolds admitted that he was found to be in possession of less than one ounce of marijuana. And as to a possible explanation for why his thumbprint was found on the stolen car, Reynolds testified that, two days before the robbery, he sold drugs to an acquaintance who was driving the same car. Reynolds further testified that, during this transaction, he leaned into the passenger-side window, and that he “probably touched [the] car more than once.” Then, the following exchange between Reynolds and his counsel occurred:

Q. Have you ever been in trouble with the law before . . . ?
A. Yes. I got a lot of possession with intent charges. I got two of them, two possession with the intent to deliver cocaine.
Q. Now, let’s slow down and make sure the jury understands exactly what you are saying, okay?
A. I was selling crack in Delaware, and I got locked up twice for selling crack.
Q. So you got arrested two different times in Delaware for selling crack cocaine?
A. Yes, Sir.

Later, during his closing argument, defense counsel emphasized Reynolds’s testimony that his thumb came into contact with the stolen car during a drug transaction and reminded the jury that “[he] was selling drugs, [he] was selling marijuana, [he] sold cocaine back in Delaware.”

As previously noted, the State contends that Reynolds’s counsel was not ineffective because it was a reasonable trial strategy for defense counsel to portray him as a drug dealer in an effort to show that his thumbprint was found on the car due to a drug transaction, not as a result of his involvement in the robbery. In this regard, the Supreme Court of Georgia has held that matters of trial strategy and tactics “do not amount to deficient performance unless they are so unreasonable that no competent attorney would have made them under similar circumstances.” And here, Reynolds’s trial counsel did not testify at the motion-for-new-trial hearing, which makes it “extremely difficult to overcome the presumption that counsel’s conduct resulted from reasonable trial strategy.”

In Henderson v. State, the Supreme Court of Georgia held, under similar factual circumstances, that a defendant’s trial counsel was not ineffective for eliciting testimony that portrayed his client as a drug dealer because it was a reasonable trial strategy to elicit such testimony to show that the defendant was present at the scene of an armed robbery to sell drugs, not to commit a pre-planned robbery. Thus, our Supreme Court concluded that the defendant had “failed to overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.”

Similarly, in Einglett v. State, we held that trial counsel’s strategy of attempting to portray his client as a drug addict, rather than as an armed robber, was a reasonable trial strategy. In Einglett, the defendant was tried for burglary and armed robbery, and two eyewitnesses identified him as being at the residence where the crimes allegedly took place. The defense presented testimony that the victim was a drug dealer, who had purchased drugs from the defendant on several occasions. On cross-examination, the State presented evidence of the defendant’s prior drug-related offenses, and defense counsel did not object. Under these particular circumstances, we held that trial counsel was not ineffective for declining to object to the admission of the defendant’s prior drug convictions when his counsel’s strategy was to show that his client “had a long history of drug problems.”

Here, as in Einglett and Henderson, we simply cannot say that trial counsel’s strategy — eliciting testimony regarding Reynolds’s history of drug-related offenses in an attempt to exculpate him from the more serious charges related to the armed robbery — was so unreasonable that no competent attorney would have pursued it under similar circumstances. And while we defer to the trial court’s credibility determinations and findings of fact unless they are clearly erroneous, no testimony or other evidence was presented at the motion-for-new-trial hearing that required findings of fact or credibility determinations. Thus, the trial court necessarily determined, as to the deficiency prong of Strickland, that trial counsel’s chosen trial strategy was deficient as a matter of law, and we owe no deference to that conclusion.

We acknowledge that, in evaluating whether Reynolds was prejudiced by counsel’s allegedly deficient conduct under the second prong of Strickland, the trial court noted that it had considered the evidence presented at trial and judged the credibility of the witnesses. But, as our Supreme Court has explained, the failure to satisfy either prong of the Strickland test will “defeat an ineffective assistance of counsel claim.” And because Reynolds failed to show that his counsel’s trial strategy was deficient as a matter of law, we conclude that the trial court erred in granting Reynolds’s motion for a new trial.

For all of the foregoing reasons, we reverse.

Judgment reversed.

Ellington, P. J., and McFadden, J., concur.

Decided July 8, 2015.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellant.

Zell & Zell, Rodney S. Zell, for appellee.

       In a separate appeal, we affirmed Newsome’s convictions, but vacated in part, and remanded for resentencing. Newsome v. State, 324 Ga. App. 665 (751 SE2d 474) (2013).

        See OCGA § 5-7-2 (c) (“[T]he granting of a motionfor new trial or an extraordinary motion for new trial shall be considered a final order.”).

        State v. James, 292 Ga. 440, 441 (1) (738 SE2d 601) (2013); OCGA § 5-5-50 (“The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.”).

        James, 292 Ga. at 441 (1); accord State v. Kelly, 290 Ga. 29, 30-31 (718 SE2d 232) (2011); O’Neal v. State, 285 Ga. 361, 363 (677 SE2d 90) (2009); see OCGA § 5-5-25 (“In all motions for a new trial on other grounds not provided for in this Code, the presiding judge must exercise a sound legal discretion in granting or refusing the same according to the provisions of the common law and practice of the courts.”).

        See U. S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to... have the Assistance of Counsel for his defence.”); Georgia Const. Art. 1, § 1, ¶ XIV (“Every person charged with an offense against the laws of this state shall have the privilege and benefit of counsel.. . .”).

        See State v. Shelton, 329 Ga. App. 582, 583 (765 SE2d 732) (2014) (noting that the trial court granted a motion for a new trial based on the special ground of ineffective assistance of counsel); Lowe v. State, 241 Ga. App. 335, 337 (3) (526 SE2d 634) (1999) (characterizing a motion for a new trial based on ineffective assistance of counsel as one based on a special ground); Ivory v. State, 234 Ga. App. 858, 861 (4) (508 SE2d 421) (1998) (same).

        Shelton, 329 Ga. App. at 583.

        See Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000); Shelton, 329 Ga. App. at 583; State v. Wakefield, 324 Ga. App. 587, 587-88 (751 SE2d 199) (2013).

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984); see also Ashmid v. State, 316 Ga. App. 550, 556 (3) (730 SE2d 37) (2012).

        Ashmid, 316 Ga. App. at 556 (3); see also Strickland, 466 U. S. at 687 (III).

        Ashmid, 316 Ga. App. at 556 (3) (punctuation omitted); see also Strickland, 466 U. S. at 689 (III) (A).

        Ashmid, 316 Ga. App. at 556 (3) (punctuation omitted); Strickland, 466 U. S. at 694 (III) (B).

        Williams v. State, 292 Ga. 844, 847 (3) (742 SE2d 445) (2013); see Miller v. State, 296 Ga. 9, 12 (4) (764 SE2d 823) (2014) (same).

        Miller, 296 Ga. at 12 (4) (a) (punctuation omitted); see also Washington v. State, 294 Ga. 560, 566 (3) (755 SE2d 160) (2014) (same).

       Reynolds did not subpoena his trial counsel to testify at the hearing, but his new counsel made several unsuccessful attempts to contact his trial counsel, who no longer resided in Georgia.

        Brown v. State, 288 Ga. 902, 908 (5) (708 SE2d 294) (2011) (punctuation omitted); see also Lewis v. State, 302 Ga. App. 506, 509 (b) (691 SE2d 336) (2010) (presuming that a defense counsel’s decision not to call a witness was a matter of trial strategy because counsel did not testify at the motion-for-new-trial hearing).

       285 Ga. 240 (675 SE2d 28) (2009).

        Id. at 242-43 (2) (b).

        Id. (punctuation omitted).

       283 Ga. App. 497 (642 SE2d 160) (2007).

        Id. at 499 (2).

        Id. at 497.

        Id. at 497-98.

        Id. at 499 (2).

        Id.

        See Washington, 294 Ga. at 566 (3) (holding that matters of trial strategy and tactics do not amount to deficient performance unless they are “so unreasonable that no competent attorney would have made them under similar circumstances”); Miller, 296 Ga. at 12 (4) (a) (same).

        See supra footnote 8.

        See Suggs, 272 Ga. at 88 (4) (explaining that, in the context of an ineffective-assistance-of-counsel claim, appellate courts “owe no deference to the trial court’s legal conclusions”).

        Barker v. Barrow, 290 Ga. 711, 712 (723 SE2d 905) (2012); see Freeman v. State, 278 Ga. 349, 352 (2) (c) (603 SE2d 214) (2004) (The “failure to satisfy either prong of the test for ineffective assistance of counsel is fatal to the claim of ineffectiveness.”).


author: Miller, Judge.

text:
    A15A0184.
    LION ANTIQUE CARS & INVESTMENTS, INC. v. TAFEL.
    (775 SE2d 191)
   Miller, Judge.

Lion Antique Cars & Investments, Inc. (“Lion”) brought suit against its former business associate, Jim Tafel, to recover two Ferrari race cars. In the course of discovery, the trial court ordered Lion to produce documents relating to its use of the race cars and found Lion in contempt after it failed to produce the documents. Lion appeals from the trial court’s denial of its motion to purge the contempt, contending that it was unable to comply with the trial court’s order. For the reasons that follow, we affirm.

“The question of whether a contempt has occurred is for the trial court, and its determination will be overturned only if there has been a gross abuse of discretion.” (Citation and punctuation omitted.) G. I. R. Systems v. Lance, 228 Ga. App. 329, 331 (4) (491 SE2d 530) (1997). If there is any evidence in the record to support a trial court’s determination of contempt, the decision will be affirmed on appeal. See id.

Lion is a California corporation that buys, sells and trades vehicles, including race cars. Tafel is a Georgia resident and he served as CEO and CFO of Tafel Racing, Inc., a professional racing team. In December 2007, Lion entered into an agreement with Tafel Racing to purchase two Ferrari race cars and loan them to Tafel Racing for the 2008 American LeMans series. In exchange, Pierre Ehret, the German president of Lion, would drive one of the race cars during the series. Tafel Racing was required to insure both race cars and, after the conclusion of the series, it was required to purchase or sell both cars. The race cars remained the property of Lion.

Tafel breached the race car agreement by failing to obtain insurance on the cars, and Lion filed suit against Tafel and Tafel Racing in the Superior Court of California. The parties stipulated to a judgment, equal to the purchase price of the race cars, in favor of Lion.

Lion thereafter filed a petition in the Superior Court of Fulton County to recover the race cars and to domesticate the California judgment. In January 2009, the trial court issued a turnover order directing Tafel and Tafel Racing to return the race cars to Lion and directing Lion to “immediately” market and sell the vehicles at the highest price obtainable. The sale price was then to be subtracted from the judgment against Tafel. Tafel Racing returned the cars to Lion.

Rather than selling the returned cars, Ehret delivered one of the cars to the Farnbacher Racing Team, owned by Horst Farnbacher, a German resident, and Ehret raced the car as part of that team. Ehret lent Farnbacher the car so that Farnbacher could fulfill his obligations under a racing sponsorship agreement with Hankook Tire. Ehret drove race cars for Farnbacher’s racing teams numerous times from 2005 to 2009 and considered him a personal friend.

Tafel sought supplemental discovery related to possible equitable claims arising from Lion’s use of the race cars in violation of the trial court’s order to sell the cars. When Lion failed to provide discovery, Tafel filed a motion to compel. The trial court granted Tafel’s motion and ordered Lion to produce, inter alia, various categories of documents related to Ehret’s use of the car while racing for the Farnbacher Racing Team. In response, Lion filed an affidavit by Ehret in which he claimed that many of the requested documents were not in his possession, but rather, were in Farnbacher’s possession.

Tafel then filed a motion for contempt. After a hearing, the trial court entered a second order requiring Lion to produce within seven business days or be subject to a daily fine of $1,000 the following documents: the Hankook Tire sponsorship agreement; any agreement between Lion or Ehret and Farnbacher that concerned the race car; and the records of any repairs or upgrades made to the car in 2009. On the seventh business day, Lion filed a motion to purge the contempt. Finding that Lion had not used all reasonable efforts to obtain the documents, the trial court denied Lion’s motion and began imposing civil fines on May 30, 2014.

After the trial court denied Lion’s motion to purge the contempt, Ehret contacted Farnbacher again and offered to pay him for the documents. Farnbacher agreed and sent Ehret the sponsorship agreement and invoices for car repairs. Farnbacher, however, refused to provide additional documents that were in his accountant’s possession. In its final order, the trial court found Lion in contempt from May 30 through June 10, 2014, the date of the final hearing.

On appeal, Lion contends that the trial court erred in holding it in contempt for failing to produce the sponsorship agreement and documents relating to Farnbacher’s use of the race car because Lion was unable to comply with the trial court’s discovery orders. We disagree.

Discovery is an integral and necessary element of our civil practice. Wide latitude is given to make complete discovery possible. The broad purpose of the discovery rules, under the Civil Practice Act, is to enable the parties to prepare for trial so that each party will know the issues and be fully prepared on the facts.

(Citations and punctuation omitted.) Intl. Harvester Co. v. Cunningham, 245 Ga. App. 736, 738 (1) (538 SE2d 82) (2000). As such, trial courts are empowered with “broad discretion to control discovery, including the imposition of sanctions.” (Citation and punctuation omitted.) Expedia, Inc. v. City of Columbus, 305 Ga. App. 450, 451 (699 SE2d 600) (2010).

Lion argues that the documents at issue were not in its possession, custody or control because Lion exercised no control over Farnbacher. See OCGA § 9-11-34 (a) (1) (under the Civil Practice Act, a party may ask an opposing party to produce documents that are within its “possession, custody, or control”). All of the documents at issue, however, related to Farnbacher’s use of Lion’s car. There was also evidence of a close, longstanding relationship between Lion’s president and Farnbacher. Finally, the record shows that Lion was subsequently able to obtain some of the documents from Farnbacher, which shows that Lion had some measure of control over the documents, despite the fact that the documents were in Farnbacher’s possession.

Lion also argues that it has demonstrated that it was unable to comply with the trial court’s orders. It is a complete defense to contempt that a party is unable to comply with the trial court’s order. See Turner Advertising Co. v. Garcia, 252 Ga. 101, 103 (2) (311 SE2d 466) (1984). A party claiming that it is unable to comply with a court order, however, may not rely on mere assertions of inability. See United States v. Hayes, 722 F2d 723, 726 (II) (11th Cir. 1984); see also McKesson HBOC, Inc. v. Adler, 254 Ga. App. 500, 503 (1), n. 4 (562 SE2d 809) (2002) (since Georgia’s Civil Practice Act is modeled on the Federal Rules of Civil Procedure, decisions of federal courts interpreting the federal rules during discovery disputes are persuasive). Rather, “a party under court order to produce documents has a duty to make in good faith all reasonable efforts to comply” with the trial court’s order. (Citation and punctuation omitted.) Hayes, supra, 722 F2d at 725 (II); see also Vickers v. Vickers, 220 Ga. 258, 260 (138 SE2d 308) (1964) (affirming contempt finding where party failed to show “conclusively or affirmatively that he was unable to comply” with the trial court’s order) (citations omitted).

Prior to being found in contempt and sanctioned, Lion failed to do anything more than ask Farnbacher to hand over the documents. See Hayes, supra, 722 F2d at 726 (II) (party’s failure to do anything more than request documents from a third party does not establish an inability to comply with a trial court’s order). In an affidavit accompanying the motion to purge contempt, Ehret averred that in an attempt to obtain the sponsorship agreements and repair records, he contacted Farnbacher by e-mail and telephone. The record shows, however, that Lion was later able to obtain a number of the relevant documents from Farnbacher. Accordingly, there is evidence that Farnbacher could have been persuaded to produce the documents earlier and, thus, the trial court did not err in concluding that Lion had the ability to comply with the trial court’s orders.

Moreover, Lion lent the race car to Farnbacher in violation of the trial court’s turnover order. Therefore, Lion cannot now claim that it is unable to comply with the trial court’s discovery order as a result of Farnbacher’s unwillingness to assist. In a contempt proceeding, “the defendant’s own acts cannot be responsible for his inability to comply.” (Citation omitted.) Turner Advertising, supra, 252 Ga. at 103 (2); see also Kace Investments, LP v. Hull, 278 Ga. App. 477, 484-485 (2) (629 SE2d 26) (2006) (holding that the plaintiff could not complain that it was unable to comply with the trial court’s order to respect the defendant’s easement because of its lease with a third party, where plaintiff had entered into lease knowing that property was subject to an easement). Accordingly, the trial court did not grossly abuse its discretion in finding Lion in contempt because Lion did not make all reasonable efforts to comply with the trial court’s order compelling discovery. See G. I. R. Systems, supra, 228 Ga. App. at 331 (4).

Decided July 8, 2015

Greenberg Traurig, Michael J. King, Andrew N. Capezzuto, for appellant.

Alston & Bird, William H. Hughes, Jr., Erica E. Harrison, for appellee.

Judgment affirmed.

Andrews, R J., and Branch, J., concur in judgment only.

       Tafel Racing declared bankruptcy in February 2009.

       When Lion failed to sell the cars, Tafel filed a motion for the judgment to be deemed satisfied in full. A jury determined the fair market value of the cars on the date of the turnover order. The trial court thereafter issued a final order, denying Tafel’s claim for equitable relief and deducting the fair market value of the race cars from the judgment.

       We note that the trial court, in its denial of Lion’s motion to purge contempt, ordered Lion, to the extent that it claimed that any third party refused to provide the ordered discovery, to produce a written statement in admissible form from the third party setting forth the refusal and reasons therefor. Lion failed to do so.

       Attached to the affidavit were also e-mails, in German, exchanged between Farnbacher’s attorney and Tafel’s attorney in Germany, in which Farnbacher refused to provide the sponsorship documents to Tafel.


author: PHIPPS, Presiding Judge.

text:
    A15A0195.
    HERRINGTON v. THE STATE.
    (775 SE2d 195)
   PHIPPS, Presiding Judge.

While represented by trial counsel, Johnny Herrington was found guilty of possession of an illegal weapon (sawed-off shotgun), giving false information to a law enforcement officer, and possession of a firearm by a convicted felon. He appeals the convictions, contending that the trial court erred by denying him the right to represent himself at trial, and by determining that he was not denied effective assistance of trial counsel. We affirm.

1. Herrington contends that the trial court erred by denying him the right to represent himself at trial. Because Herrington did not unequivocally assert the right to represent himself before trial, this contention is without merit.

Both the federal and state constitutions guarantee a criminal defendant the right to self-representation. [] An unequivocal assertion of the right to represent oneself, made prior to trial, should be followed by a hearing to ensure that the defendant knowingly and intelligently waives the right to counsel and understands the disadvantages of self-representation.

On the morning of trial, before the jury was impaneled, and while he was being represented by counsel from the public defender’s office, Herrington announced to the court, “I would like to replace my counsel.”

The court asked Herrington who he had hired to replace his attorney. Herrington replied, “I don’t have one.” The court replied that the case was going to trial that morning, and that Herrington could either represent himself or “bring in” another attorney. Herrington said, “I will represent myself.”

The court then explained some of the dangers of self-representation, inquired as to Herrington’s reasons for dissatisfaction with his attorney and his possible defenses to the charges, and asked the state about the charges in the case. The court then announced:

You may fire [the defense attorney] and represent yourself, you said you already want to do that, and that’s against my advice. I am strongly advising you not to, but you have already told me you don’t know the law. You already told me you don’t know what possible defenses you have.
Well, you are the boss here, Mr. Herrington. You can represent yourself. I am not going to stop that. I am going to advise you strongly against it as much as I can and tell you it’s really against my advice that you do so.

The court reiterated the dangers of self-representation. The following then transpired.

THE COURT: Okay. Then you are ready to represent yourself?
[HERRINGTON]: I want to know that I am going to have adequate representation.
THE COURT: You have got adequate representation.
[HERRINGTON]: I asked [defense attorney] to get me a change of venue because of your bias towards me. . . .
THE COURT: We are going to trial today. My only question to you is whether you want to represent yourself —
[HERRINGTON]: Do you think you can represent me?
[DEFENSE COUNSEL]: Yes, sir, I can.

The court then instructed defense counsel “to go and meet with him for a few moments,” after which “we are coming back out here ... to try this case.” Thereafter, with no more discussion of Herrington’s trial representation and with the same counsel representing Herrington, the parties discussed other pre-trial matters. The case proceeded to trial, with defense counsel representing Herrington.

[Herrington] did not make an unequivocal assertion of his right to represent himself prior to the commencement of his trial. [To the extent some of] his remarks may be construed as an expression of dissatisfaction with his attorney, they cannot be construed as an assertion, much less an unequivocal assertion, of his right to represent himself.

To the extent Herrington expressed at the beginning of the colloquy a desire to represent himself, he thereafter “apparently had a change of heart [and] abandoned his request to represent himself.” Accordingly, his contention is without merit.

2. Herrington contends that the court erred by determining that he was not denied effective assistance of trial counsel. He asserts that trial counsel rendered ineffective assistance because she failed to object to evidence of two prior convictions in cases in which Herrington had not been represented by counsel. At issue is the state’s introduction of evidence of Herrington’s misdemeanor convictions in 1991 and 1998 of giving false information (false name) to a police officer, which evidence was admitted for the stated purpose of showing Herrington’s intent, bent of mind or course of conduct. The record does not indicate that Herrington was represented by counsel in either of the prior cases.

To prevail on a claim of ineffective assistance of counsel, appellant must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.

On appellate review of that claim, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

Even assuming that the prior convictions were inadmissible, and that trial counsel performed deficiently by not objecting to the introduction of such evidence, Herrington has not shown that he was prejudiced thereby. In determining whether counsel’s error resulted in the required prejudice,

a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

Viewed in the light most favorable to the verdict, the trial evidence showed the following. A law enforcement officer testified that on March 29, 2011, he and other officers had gone to an address looking for a fugitive sex offender, N. B., after having been informed that N. B. was living in a tent on the property. When officers arrived, there was no tent on the property, but there was a house and a trailer. Officers went to the trailer to inquire about N. B. They knocked on the door and, a few minutes later, Herrington answered it. Herrington explained that he had been asleep, and he appeared as though he had just awakened. When asked if he knew N. B., Herrington replied that he did, though he had not seen him in “a little while, a couple of weeks, maybe.” Herrington stated that he was alone in the trailer. Officers asked Herrington to identify himself, and Herrington handed an officer an identification card bearing the name “Jeffrey Curvin.” In the officer’s opinion, the photograph on the identification card did not resemble Herrington and, when the officer asked Herrington for the date of birth on the card, he was unable to provide it. Another officer was called to the scene, and he was able to identify Herrington, whom he had known from an encounter “a week prior.”

The officers searched the trailer to confirm that N. B. was not present. Only one bedroom in the trailer had electrical power and was habitable; the bed in that bedroom appeared to have been slept in. On the bed, in plain sight, was a bank bag. The barrel of a shotgun was sticking out of the bag. The barrel was 71/4 inches long, and the entire firearm was “[r]ight at a foot long.” The shotgun contained the necessary working parts. Herrington told the officers that the shotgun was not his, stating that one of the officers must have “planted it on” him.

Decided July 8, 2015.

William D. Hoffer, for appellant.

Layla H. Zon, District Attorney, Randal M. McGinley, Assistant District Attorney, for appellee.

The man who owned the property and the trailer, T. D., testified that Herrington had been doing renovation work on the trailer in March 2011, and that he had given Herrington permission to stay in the trailer. The owner testified that he (T. D.) had not stored any belongings, including any firearms, in the trailer. The trailer had been empty, but Herrington “had been bringing some things in.”

Taking the stand in his own defense, Herrington testified that Jeffrey Curvin (whose identification card he had handed to officers as proof of his own identity) was his cousin’s son; that the identification card was not his; and that N. B. had fled out the trailer’s back door as the officers arrived or upon learning that they were en route. Herrington testified that he had been hesitant to open the trailer door for the officers because he was afraid they wanted him for a probation violation; he did not own and did not know who owned the shotgun; and he had not seen the shotgun before the officers showed it to him. Herrington testified that he had been convicted in 2005 for fleeing and eluding officers; and, he added, “I’ve got a criminal record and I’ve done things that, you know, I am not proud of, but I’ve done my time. I’ve ... pled guilty for the things that I know I was guilty of and I did my time for them.”

Given the evidence in this case, there is not a reasonable probability that the outcome of Herrington’s trial would have been different had counsel objected to evidence of the two prior false information convictions and had the court excluded said evidence. Accordingly, Herrington’s ineffective assistance of counsel claim fails.

Judgment affirmed.

Doyle, C. J., and Boggs, J., concur.

       OCGA §§ 16-11-121 (5) (pertinently defining “sawed-off shotgun” as “a shotgun . . . having one or more barrels less than 18 inches in length or if such weapon as modified has an overall length of less than 26 inches”); 16-11-122 (pertinently prohibiting the possession of a sawed-off shotgun).

       OCGA § 16-10-25 (“A person who gives a false name, address, or date of birth to a law enforcement officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identity or birthdate is guilty of a misdemeanor.”).

       OCGA § 16-11-131.

       See Faretta v. California, 422 U. S. 806 (95 SCt 2525, 45 LE2d 562) (1975); 1983 Ga. Const., Art. I, Sec. I, Par. XII. '

        Thaxton v. State, 260 Ga. 141, 142 (2) (390 SE2d 841) (1990).

        Thaxton, supra (footnote omitted).

        McDonald v. State, 296 Ga. 643, 649 (3) (770 SE2d 6) (2015).

       See Danenberg v. State, 291 Ga. 439, 440-441 (2) (729 SE2d 315) (2012) (trial court did not wrongfully deny appellant’s right to represent himself at trial, because appellant’s request on the morning of trial to dismiss his trial counsel and replace them with retained counsel, a public defender, or himself, was not an unequivocal assertion of his right to represent himself).

       See generally former OCGA § 24-9-84.1 (a) (2), (3) (2011). Because this case was tried prior to January 1, 2013, Georgia’s old Evidence Code applies here. See Bragg v. State, 295 Ga. 676, 677, n. 3 (763 SE2d 476) (2014).

        Kitchens v. State, 289 Ga. 242, 243 (2) (710 SE2d 551) (2011) (citation omitted).

        Odie v. State, 331 Ga. App. 146, 150-151 (2) (770 SE2d 256) (2015).

       See Clenney v. State, 229 Ga. 561, 564 (4) (192 SE2d 907) (1972) (citing Gideon v. Wainwright, 372 U. S. 335 (83 SCt 792, 9 LE2d 799) (1963), and Burgett v. Texas, 389 U. S. 109, 115 (88 SCt 258,19 LE2d 319) (1967), the Court held that evidence of the appellant’s previous convictions, in which he was denied the benefit of counsel, cannot be used against him either to support guilt or enhance punishment for another offense); see also Scott v. State, 250 Ga. 195, 198 (297 SE2d 18) (1982); Mitchell v. State, 136 Ga. App. 390, 391 (3) (221 SE2d 465) (1975) (the use of convictions constitutionally invalid under Gideon v. Wainwright, supra, is prohibited either to support guilt or enhance punishment for another offense).

       See Mitchell, supra at 392 (3) (appellant’s contention that the state had improperly elicited evidence of his prior convictions without showing that he either had counsel or had waived counsel in such prior proceedings was not reviewable on appeal, because defense counsel had failed to object to the admission of the evidence in the trial court).

       See generally Church v. State, 210 Ga. App. 670, 672 (4) (436 SE2d 809) (1993) (rejecting appellant’s Burgett v. Texas-based argument that the trial court had erred in considering her prior uncounseled convictions in sentencing, where there was no contention that the court had sentenced her in conjunction with the previous convictions); Miller v. State, 296 Ga. 9, 12-13 (4) (b) (764 SE2d 823) (2014) (affirming trial court’s rejection of appellant’s ineffective assistance claim, stating: “Assuming that [the hearsay] evidence was inadmissible..., [appellant] has not shown how he was prejudiced”; the evidence complained of was cumulative of other testimony, and the evidence thus supported the trial court’s conclusion that there was no reasonable probability that the failure of defense counsel to obj ect to the admission of the evidence at issue affected the outcome of the trial).

        Strickland v. Washington, 466 U. S. 668, 695-696 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984).

       See Scandrett v. State, 293 Ga. 602 (1) (748 SE2d 861) (2013) (where the only issues on appeal from criminal conviction were whether the trial court had admitted improper evidence and the appellant had received ineffective assistance of trial counsel, the Court viewed the evidence in the light most favorable to the verdict).

       See generally Miller, supra; Wells v. State, 295 Ga. 161, 164 (2) (a) (758 SE2d 598) (2014).

       See Wells, supra at 166 (2) (b).