text:
    A14A0440.
    GORDON v. THE STATE.
    (761 SE2d 169)
   Ray, Judge.

A jury convicted Andre Gordon of child molestation (OCGA § 16-6-4 (a) (1)), aggravated sexual battery (OCGA § 16-6-22.2), rape (OCGA § 16-6-1 (a) (1)), and incest (OCGA § 16-6-22 (a) (6)). Gordon was sentenced as a recidivist under OCGA § 17-10-7 to 20 years each for child molestation, aggravated sexual battery, and incest, to run consecutively to each other and concurrently with his sentence of life imprisonment without the possibility of parole for rape. He appeals the denial of his motion for new trial, arguing that (1) the evidence was insufficient to sustain his convictions for aggravated sexual battery, rape, and incest; (2) the statute of limitation had run on the aggravated sexual battery and incest counts; (3) a fatal variance existed between the dates charged in the indictment and the evidence adduced at trial; (4) the trial court erred in instructing the jury on the elements of rape; and (5) he received ineffective assistance of counsel. Because Gordon’s relationship to the victim did not fall within the ambit of the incest statute, we reverse his conviction for incest and remand the case for resentencing. Gordon’s other claims, however, are without merit, and we affirm his remaining convictions.

Viewed in the light most favorable to the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that when T. S. was 13 years old, Andre Gordon came to live with her family. Gordon began touching and interacting inappropriately with T. S., as will be detailed below. T. S. made an outcry to her aunt and later to her mother, who called the police. The same day that the police were called, Gordon told T. S.’s stepfather that he had “messed with” his family. T. S. was examined by a nurse at a clinic for sexually transmitted diseases and at a hospital. The examinations showed that her hymen was not intact, but also showed no signs of bruising, tearing, or trauma consistent with sexual assault. T. S. indicated she had no sexual history prior to the incident with Gordon.

1. Gordon contends that the evidence was insufficient to sustain the verdict as to the aggravated sexual battery, rape, and incest counts.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her 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. The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts.

(Footnote omitted.) Colton v. State, 297 Ga. App. 795, 796 (1) (678 SE2d 521) (2009).

(a) Aggravated sexual battery. Gordon argues that the victim’s trial testimony that he “would finger her” was too vague to establish that penetration, an essential element of aggravated sexual battery, occurred.

Aperson commits aggravated sexual battery when he “intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person.” OCGA § 16-6-22.2 (b). A “foreign object” is anything other than a person’s sexual organ and may include body parts such as fingers, and even slight penetration satisfies the statute’s requirements. Colton, supra.

The indictment charged that Gordon “did intentionally penetrate the vagina of [T. S.] with a finger of the accused” without T. S.’s consent. At trial, T. S. testified that Gordon “would finger me in my vagina.” (Emphasis supplied.) A police investigator who interviewed T. S. testified that she told him Gordon “penetrated her vaginal area with his fingers” and “took his right hand and placed his index and middle finger into her vaginal area and started to rub inside her vagina.” The evidence was sufficient.

(b) Rape. To prove that Gordon raped T. S., the State was required to show that he had carnal knowledge of her forcibly and against her will. OCGA § 16-6-1 (a) (1). Gordon does not dispute that the State proved force and lack of consent. He argues only that the victim’s description of the “carnal knowledge” element of rape was ambiguous because it could have established penetration required for the crime of sodomy, rather than vaginal penetration as required for the carnal knowledge element of rape. We disagree.

“Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.” OCGA § 16-6-1 (a). At trial, T. S. testified that Gordon “tried to penetrate” her while “I was . . . laying [sic] on my side, and from behind he tried to put his penis in me. But, that’s when he pushed in, and I kind of ‘crinched’ (phonetic) and it hurt and that’s why I looked at him, and that’s when he pulled out[.]” T. S. testified that when Gordon tried to penetrate her, she “got real scared[.]” When he told her not to tell her grandmother, she curled up in a ball. She finally decided to tell someone, fearing that if she did not act soon, “it could get worse.” The investigator who interviewed T. S. testified that she told him, as to the same incident, that Gordon “pulled her shorts and panties aside and inserted his penis into her vagina” (Emphasis supplied.)

It is well settled that “it is the function of the jury, not appellate judges, to assess the credibility of witnesses, weigh and draw reasonable inferences from the evidence, and resolve conflicts in the evidence.” (Citation omitted.) Roberts v. State, 313 Ga. App. 849, 850 (1) (723 SE2d 73) (2012). In light of the testimony outlined above, a rational jury could find that the evidence was sufficient to show that Gordon penetrated T. S.’s vagina with his penis.

(c) Incest. Gordon argues that the evidence is insufficient because Georgia’s incest statute does not prohibit sexual intercourse between a “step-uncle” and niece, and thus, that the State failed to prove the existence of a relationship proscribed by OCGA § 16-6-22. As an initial matter, counsel’s use of the term “step-uncle” is inapt and confusing, as T. S.’s mother and Gordon are half-siblings who have the same father. Thus, Gordon is T. S.’s uncle, related by half-blood. He is not her “step-uncle.”

In pertinent part, OCGA § 16-6-22 (a) (6) provides that “[a] person commits the offense of incest when such person engages in sexual intercourse ... with a person whom he or she knows he or she is related to either by blood or by marriage as follows:... [u]ncle and niecef.]” The statute does not refer to half-blood uncles. However, it does specifically refer to other half-blood relationships in prohibiting incest between a brother and sister “of the half blood[.]” OCGA § 16-6-22 (a) (3).

Well-settled principles of statutory construction provide that “expressio unius est exclusio alterius (the expression of one thing implies the exclusion of another) and expressum facit cessare taciturn (if some things are expressly mentioned, the inference is stronger that those not mentioned were intended to be excluded).” (Citations omitted.) Jackson v. State, 299 Ga. App. 356, 358 (2), n. 4 (683 SE2d 60) (2009). Because Georgia’s incest statute specifically refers to a brother and sister of the half blood, it necessarily excludes other, unmentioned half-blood relationships. See Smith v. State, 311 Ga. App. 757, 758-759 (1) (717 SE2d 280) (2011) (count of indictment charging defendant with incest for having sexual relations with adoptive sister, with whom he had no blood relationship, was insufficient as a matter of law because incest statute expressly applies only to siblings of the whole blood or the half blood); Glisson v. State, 188 Ga. App. 152, 152-153 (1) (372 SE2d 462) (1988) (evidence insufficient to prove incest where allegation involved a step relationship not specifically mentioned in OCGA § 16-6-22).

“The fact that the sexual acts here involved are fully as loathsome and disgusting as the acts proscribed by the Code does not justify us in reading into the statutory prohibition something which the General Assembly either intentionally or inadvertently omitted.” (Citation and punctuation omitted.) Glisson, supra at 153 (1). Because the relationship at issue here is not one expressly enumerated by the statute, we cannot find that the sexual relationship between Gordon and T. S. is incestuous. Id. Accordingly, Gordon’s incest conviction must be reversed.

2. Gordon argues that he was tried and convicted under an indictment in which the statute of limitation had run on the aggravated sexual battery and incest counts. Given our reversal of Gordon’s conviction for incest in Division 1 (c), we need not reach his contention related to incest in this enumeration. As to the aggravated battery count, however, Gordon neither demurred nor moved to quash or dismiss. He “did not object to the [allegedly] time-barred count [ ] at trial, and is therefore procedurally barred from raising the issue on appeal.” (Footnote omitted.) Zellars v. State, 278 Ga. 481, 483 (3) (604 SE2d 147) (2004).

3. Gordon next argues that there is a fatal variance between the dates alleged in the indictment and the evidence adduced at trial as to the offenses of rape and incest. Again, we need not reach this contention as to the incest count because of our determination in Division 1 (c). As to the rape count, Gordon argues that because the dates in the indictment were not prefaced by the words “on or about” they were material averments and the State failed to prove that the crime occurred on those precise dates. The indictment, however, does not allege that the dates were material averments.

Where, as here, the State alleges a certain range of dates in an indictment and does not specifically allege that those dates are material, the State is not restricted at trial to proving that the crimes occurred within that range of dates. And, if there is a variation between the date alleged and the date proved at trial, the variance does not entitle a defendant to a new trial unless it prejudiced the defense.

(Citations omitted.) Adams v. State, 288 Ga. 695, 698-699 (2) (707 SE2d 359) (2011). Gordon offered no alibi evidence and did not request a continuance on grounds of surprise. Id. at 699 (2). When the exact date of a crime is not a material allegation in the indictment, the State may prove the crime took place on any date prior to the return of the indictment and within the statute of limitation. McDaniel v. State, 289 Ga. App. 722, 725-726 (4) (658 SE2d 248) (2008).

The indictment alleges that the crime occurred “between the 28th day of July, 2000 and the 29th day of July 2000[.]” At trial, although there was some conflicting testimony as to when the crime occurred, the conflicting dates were within the statute of limitation. See generally Dorsey v. State, 265 Ga. App. 404, 405 (1) (593 SE2d 945) (2004). Further, T. S. testified about the incident, stating that she spoke to police “the day after” the rape occurred. A police investigator interviewed T. S. on July 29,2000, showing that her testimony meant that the incident occurred on July 28, 2000, one of the dates listed in the indictment. This enumeration cannot succeed.

4. Gordon contends that the trial court erred in instructing the jury on the material elements of the offense of rape because the charge did not “sufficiently differentiate” the elements of rape as being both forcible and against the will of the victim. Gordon did not object to this instruction, so we review it only for plain error affecting the substantial rights of the parties. See OCGA § 17-8-58 (b).

The hurdle to establishing plain error is high, and the party asserting it must demonstrate the following: First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Punctuation and footnotes omitted.) Harris v. State, 324 Ga. App. 411, 416 (5) (750 SE2d 721) (2013).

OCGA § 16-6-1 (a) (1) provides that “[a] person commits the offense of rape when he has carnal knowledge of... [a] female forcibly and against her will.”

[T]he terms “forcibly” and “against her will” are two separate elements of proving rape. The term “against her will” means without consent; the term “forcibly” means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. The [S]tate must prove the element of force as a factual matter in forcible rape cases rather than presuming force as a matter of law based on the victim’s age. However, the quantum of evidence to prove force against a child is minimal, since physical force is not required. Intimidation may substitute for force. . . . Lack of resistance, induced by fear, is force[.\

(Citations and punctuation omitted; emphasis in original.) House v. State, 236 Ga. App. 405, 408 (1) (512 SE2d 287) (1999). Here, the trial court charged the jury in pertinent part that

[a] person commits rape when he has carnal knowledge of a female, forcibly and against her will. ... A child under the age of sixteen years legally cannot consent to sexual intercourse with any person other than his or her spouse. In the case of a rape where the victim is under the age of consent, this satisfies the element of “against her will,” with regards to the charge of rape. The State, however, must prove the element of force. Now, I charge you that when contemplating the element of force as to the charge of rape, you may conclude that the element of force is satisfied where there is a lack of resistance induced by fear.

(Emphasis supplied.) Contrary to Gordon’s contention, the trial court’s charge adequately differentiated between the elements of rape, and the portion of its charge dealing with force precisely tracked the language in House, supra. Although the trial court did not define force to include physical force, death threats, or bodily harm, jury charges are to be tailored to the evidence, and no evidence was presented on the aforementioned issues, nor did the indictment allege them. See Harris, supra. Gordon has not shown how the charge as given either conflated the elements of rape, was an incorrect statement of the law, or affected his substantial rights.

5. Finally, Gordon argues that he received ineffective assistance of counsel.

To prevail on an ineffective assistance claim, Gordon

was required to show both that his counsel’s performance was professionally deficient and that but for counsel’s unprofessional conduct, there is a reasonable probability [that] the outcome of the proceedings would have been different. . . . The likelihood of a different result must be substantial, not just conceivable. . . . [W]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012).

(a) Gordon also argues that trial counsel was ineffective in failing to file a plea in bar to the statute of limitation on the incest and aggravated sexual battery counts. However, Gordon provides no citations to the record in violation of Court of Appeals Rule 25 (c) (2) (i), which provides that “[e]ach enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.” (Emphasis supplied.) See Collins v. State, 326 Ga. App. 181, 184 (6) (756 SE2d 269) (2014) (claim of error abandoned where appellant failed to cite to record or transcript). “It is a sound rule of appellate practice that the burden is always on the appellant in asserting error to show it affirmatively by the record. [Gordon] has not met his burden and it is not the function of this Court to cull the record on behalf of a party in search of instances of error.” (Citation and punctuation omitted.) Jones v. State, 318 Ga. App. 342, 348 (3) (a) (iii), n. 4 (733 SE2d 400) (2012).

(b) Gordon contends that his trial lawyer was ineffective in failing to request a jury charge on sexual battery as a lesser included offense of aggravated sexual battery and child molestation. Gordon presents no argument as to why such a charge would have been appropriate given the facts of his particular case. See Smith v. State, 310 Ga. App. 392, 394-395 (2) (713 SE2d 452) (2011). Further, at the motion for new trial hearing, Gordon’s trial attorney explained that her decision not to pursue lesser included offenses was

pure trial strategy. Our whole point of view of the case is [that] it did not happen[.] ... If the allegations were of touching, the doctor said there is no signs of touching or no signs of penetration . . . there was no reason to include a lesser included offense, especially when a very reasonable plea offer had been made earlier and rejected. . . . [M]y strategy was since it was all based on who believed who, we were going forward with an all or none.

Given that Gordon’s trial strategy was a categorical denial that anything inappropriate happened, seeking a lesser included offense of sexual battery would have been inconsistent with that strategy. “[A] charge request must be apt, a correct statement of law, and precisely adjusted to some theory in the case” (Citation and punctuation omitted; emphasis supplied.) Smith, supra, 310 Ga. App. at 395 (2). Gordon has shown neither deficiency nor prejudice. Stansell v. State, 270 Ga. 147, 149-150 (2) (510 SE2d 292) (1998).

Decided June 26, 2014.

Peter D. Johnson, for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

(c) Gordon asserts that counsel was ineffective in failing to object to the trial court’s jury charge on rape. Given our determination in Division 4, such an objection would have been futile, and counsel is not rendered ineffective for failing to raise a meritless objection. Burke v. State, 316 Ga. App. 386, 389 (1) (a) (729 SE2d 531) (2012).

(d) Gordon’s remaining assertion of ineffective assistance of counsel, which is related to the incest conviction we reversed in Division 1 (c), is moot. See Martinez v. State, 325 Ga. App. 267, 274-275 (2) (750 SE2d 504) (2013).

Judgment affirmed in part and reversed in part, and case remanded for resentencing.

Andrews, P. J., and McFadden, J., concur.

       Gordon does not challenge the sufficiency of the evidence as to his conviction for child molestation.

       Gordon argues that the trial court stated that “I deliberately went through each of the four offenses on the form with the verdict, in order to make it absolutely clear to the jury that the dates are essential averments in the indictment.” However, the court made this statement outside the presence of the jury. In its charge to the jury, the court noted the dates but made no mention of them as essential averments. Gordon points us to no authority, nor do we find any, standing for the proposition that a trial court’s sua sponte identification of dates as material averments in fact and law makes them so.

       Because of our finding that Gordon has not met the Harris plain error criteria, we need not reach the issue of whether trial counsel’s statement that the defense had no objections to the charge as given amounts to an affirmative waiver. See State v. Kelly, 290 Ga. 29, 34 (2) (b), n. 5 (718 SE2d 232) (2011).


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A14A0696.
    VIBERT et al. v. BANK OF AMERICA, N.A.
    (761 SE2d 162)
   McFadden, Judge.

This appeal is from a trial court order granting summary judgment to a bank on its claim seeking reformation of a security deed to correct the mistaken omission of a signatory on the deed. The trial court correctly found that there is no genuine issue of material fact: the omission of the signature contravened the parties’ intention and was the result of a mutual mistake. That finding is correct — notwithstanding the evidence that the bank was negligent. We therefore affirm.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.” Secured Equity Financial v. Washington Mut. Bank, 293 Ga. App. 50 (666 SE2d 554) (2008) (citations omitted).

So viewed, the evidence shows that in 1993, Stephen and Sylinda Vibert purchased property located at 536 Mulberry Circle in Jasper, Georgia. They refinanced their loan on the property several times, including the underlying refinancing in 2007 with Countrywide Bank, FSB. On October 11, 2007, a bank representative came to their house for the purpose of executing the refinancing documents. Although the parties intended for both of the Viberts to sign the security deed encumbering both of their interests in the property, only Stephen Vibert signed the security deed. Sylinda Vibert told the bank representative that she should sign the refinancing documents, but he said that her signature was not necessary.

Countrywide later filed the complaint seeking, among other things, declaratory judgment to reform the deed. Its successor in interest, Bank of America, N.A., moved for partial summary judgment as to reformation of the security deed. The trial court granted the motion, ordering that the security deed be “reformed to reflect that Ms. Vibert is a signatory to the deed and has conveyed her interest in the [pjroperty.” The Viberts appeal.

“Under Georgia law, if the form of conveyance is, by accident or mistake, contrary to the intention of the parties in their contract, equity shall interfere to make it conform thereto. OCGA § 23-2-25. Th[is] statute applies when the form of conveyance is a security deed. [Cit.]” Kim v. First Intercontinental Bank, 326 Ga. App. 424, 427-428 (2) (756 SE2d 655) (2014) (punctuation omitted). Moreover,

[ejquity may intervene and reform a conveyance when the instrument fails to express accurately the intention of the parties. A petition for reformation of a written contract will lie where by mistake of the scrivener and by oversight of the parties, the writing does not embody or fully express the real contract of the parties. The cause of the defect is immaterial so long as the mistake is common to both parties to the transaction. And the negligence of the complaining party will not defeat his right to reformation if the other party has not been prejudiced.

Zaimis v. Sharis, 275 Ga. 532, 533 (1) (570 SE2d 313) (2002) (citations omitted).

In this case, it is undisputed that the parties’ intention was for Sylinda Vibert to be bound by the security deed, encumbering her interest in the property to the bank as part of the refinancing transaction. At her deposition, when asked about the security deed, Sylinda Vibert confirmed that it was the intent of herself, her husband and the bank that her “interest in the property was also supposed to be encumbered” by the security deed, that she knew there was paperwork she needed to sign, and “that we intended to have all the paperwork filled out and signed on both sides.” Stephen Vibert also deposed that he and his wife recognized that she was supposed to sign the security deed.

Decided June 26, 2014.

John W. Childers, for appellants.

Rubin Lublin, Peter L. Lublin, Bret J. Chaness, Campbell & Brannon, J. Kelsey Grodzicki, for appellee.

Although the parties clearly intended for Sylinda Vibert to sign the security deed, the appellants contend that the deed should not be reformed to make it conform to this intention because the bank representative who came to their home to close the refinancing negligently told them that she did not need to sign. However, as noted above, “the negligence of the complaining party will not defeat his right to reformation if the other party has not been prejudiced.” Zaimis, supra (citation omitted). See also The Potter’s Properties v. VNS Corp., 306 Ga. App. 621, 623-624 (703 SE2d 79) (2010). Here, the Viberts “have not suffered any prejudice as they received a loan for [$116,725], as promised, and used part of that loan to satisfy [an] earlier loan from [another lender] relating to that property. Nor have [the Viberts] shown that they will suffer any prejudice if the deed is reformed.”DeGolyer v. Green Tree Servicing, 291 Ga. App. 444, 447 (1) (662 SE2d 141) (2008). Accordingly, the trial court did not err in granting summary judgment to the bank as to its claim for reformation to include the mistakenly omitted signature on the security deed. See Lane v. Spriggs, 71 SW3d 286, 290 (III) (Tenn. App. 2001) (citing 76 C. J. S. Reformation of Instruments § 36 (1994) for proposition that other jurisdictions have recognized that where both parties to a deed have agreed that the instrument is to be executed, the lack of a party’s signature can be supplied by a reformation of the document). See also Smith v. Royal Automotive Group, 675 S2d 144, 153-154 (Fla. Dist. Ct. App. 1996) (“Given that equity regards as done that which ought to be done, there is no compelling reason why a court may not reform a written instrument to reflect the intentions of the parties, including a party’s omitted signature.”).

Judgment affirmed.

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


author: Dillard, Judge.

text:
    A14A0068.
    BOATRIGHT v. THE STATE.
    (761 SE2d 176)
   Dillard, Judge.

Richard Boatright was convicted by a jury on two counts of obstruction of a police officer after he resisted while officers took him into custody for the purpose of transporting him to an emergency facility to undergo an involuntary mental-health examination. Boatright filed a motion for new trial in which he asserted, inter alia, that the evidence was insufficient to support his convictions because the officers were not acting lawfully in detaining him and, consequently, he was entitled to offer resistance. The trial court denied his motion, and Boatright appeals this decision. Because we agree with Boatright that the officers were not acting with lawful authority, we reverse.

Viewed in the light most favorable to the verdict, the evidence adduced at trial shows that during the early morning hours of his birthday, Boatright was at home drinking alcohol and feeling depressed. He telephoned the Garden City Police Department to request a person to speak with about his problems and/or a resource number to call, but was advised that no one was available.

The police dispatcher nonetheless reported Boatright’s call to the lieutenant on duty and relayed a “possible suicidal person at [Boat-right’s] residence.” And based upon that information, the lieutenant set up a temporary “command post” in Boatright’s neighborhood and assigned several other officers, as well as emergency medical personnel, to this post.

The lieutenant thereafter telephoned Boatright from the command post and had a “fairly lengthy” conversation with him. Although Boatright disputes the lieutenant’s summary of that discussion, the lieutenant testified that Boatright was “severely depressed” and having suicidal thoughts, and—admittedly paraphrasing—claimed that Boatright wanted the lieutenant to “put him out of his misery.” The lieutenant deduced from Boatright’s manner that he was “familiar with the concept of suicide by cop” and thus became concerned. The lieutenant’s stated goal during the conversation was to “say anything” necessary to develop trust and rapport, so as to draw Boatright out of his home and take him into custody for an emergency mental-health examination.

Eventually, Boatright agreed to go outside on the condition that the lieutenant came to his home alone, so that the two of them could speak in person. The lieutenant then drove from the command post to Boatright’s house with two additional officers in the back of his vehicle. Boatright walked down his driveway as the lieutenant drove up and, after approaching him alone and confirming that he did not have any visible weapons, the lieutenant immediately signaled for the other officers to take Boatright into custody. The other officers quickly exited the lieutenant’s vehicle and immediately placed Boat-right into handcuffs.

Apart from repeatedly calling the lieutenant a liar, Boatright was, by all accounts, calm and cooperative upon the lieutenant and the other officers’ arrival at his residence. Boatright made no statements about hurting himself or others and it is undisputed that he had neither committed, nor was he suspected of committing, a crime.

Then, after Boatright was handcuffed, two additional officers were called from the command post to transport him to the hospital. And while he was passively resistant, Boatright was initially placed into the patrol car without incident. But after noticing that he was holding a flashlight, the transporting officers became concerned that Boatright had not been thoroughly searched when he was taken into custody. As a result, the officers stopped the patrol car and removed Boatright from the vehicle to search him yet again. However, as the officers attempted to return him to the back seat of the vehicle, Boatright became agitated and refused to comply. And as one officer attempted to force him into the car, Boatright kicked her in the chest while making a derogatory comment. He also kicked the second officer who took over the efforts to restrain him. The officers thereafter placed Boatright in leg shackles and he was taken to the hospital and involuntarily admitted.

Boatright was subsequently charged with two counts of obstruction of a law-enforcement officer for his acts of kicking the officers. He represented himself during trial and maintained throughout the proceedings that the officers were not acting in the lawful discharge of their duties when they placed him into custody.

The jury ultimately convicted Boatright of two counts of obstruction of a police officer. He then filed a motion for new trial in which he asserted, inter alia, that the evidence was insufficient to support his convictions. Specifically, Boatright argued that the officers failed to follow the proper statutory procedure to take him into custody for an involuntary mental-health evaluation and, therefore, he was legally authorized to use reasonable force to resist their efforts. The trial court denied his motion, and this appeal follows.

It is well established that “[a]n essential element of the offense of obstruction of an officer is that the State prove beyond a reasonable doubt that the obstruction occurred while the officer was in the lawful discharge of his official duties.” Thus, the determinative question presented in this appeal is whether the officers’ act of taking Boatright into custody for the purpose of effecting an involuntary mental-health evaluation comported with their lawful authority. If the officers were not legally authorized to take Boatright into custody, then he had the right to “resist with all force necessary for that purpose.”

We begin our analysis by noting that any seizure of a person— even the taking of a person into civil custody—is governed by the Fourth Amendment to the United States Constitution and Article I, Section I, Paragraph XIII of the Georgia Constitution. And specifically, when an officer takes a person into custody for an involuntary mental-health examination, the seizure must be supported by probable cause.* In this context, probable cause exists only if “there are reasonable grounds for believing that the person seized is subject to seizure under the governing legal standard.”

In Georgia, the governing legal standard for the lawful taking of an individual into custody for the purposes of receiving an involuntary mental-health examination is delineated in OCGA § 37-3-40 et seq. Specifically, OCGA § 37-3-41 requires a peace officer to act pursuant to (1) a physician’s certificate stating that the physician “has personally examined [the] person within the preceding 48 hours and found that. . . [the] person appears to be a mentally ill person requiring involuntary treatment,” or (2) a court order based upon either the above-referenced physician’s certificate or “upon the affidavits of at least two persons who attest that, within the preceding 48 hours, they have seen the person to be taken into custody and... have reason to believe such person is a mentally ill person requiring involuntary treatment.” In the absence of either of the foregoing, OCGA § 37-3-42 (a) permits a peace officer to seize an individual for an involuntary mental-health examination “if (1) the person is committing a penal offense, and (2) the peace officer has probable cause for believing that the person is a mentally ill person requiring involuntary treatment.”

Given the applicable statutory framework, we conclude that the officers were not acting within the scope of their lawful authority when they took Boatright into custody. They did not have a physician’s certificate or a court order as required by OCGA § 37-3-41, and it is undisputed that Boatright had not committed, nor was he suspected of committing, apenal offense as mandated byOCGA § 37-3-42 (a).

In so holding, we are mindful that there is no dispute that the lieutenant and each of the officers involved in this case operated with the very best of intentions. Nonetheless, among our most cherished rights, as American citizens and Georgians, is “the freedom of choice as to our movements, to be free to go where and when we wish ... ,” In recognition of the sanctity of this right, we stringently construe all laws that deprive us of our physical liberty and ensure that all requirements of those laws are strictly complied with by the State. And because the subject matter of this case involves “the extremely sensitive area of deprivation of [physical] liberty,” and further because “[t]he procedural safeguards contained in [the governing statutes] are obviously there for the purpose of ensuring that individual rights are not eroded in the name of medical expediency,” we require strict compliance with the procedures mandated by these statutory provisions.

Decided June 27, 2014

Amy L. Ihrig, for appellant.

Meg E. Heap, District Attorney, Christine S. Barker, Assistant District Attorney, for appellee.

Thus, despite the purest motives of the law-enforcement officers, Boatright was not lawfully detained. Consequently, he was authorized to resist those attempting to take him into custody with all force necessary for that purpose, rendering insufficient the evidence against him to sustain his convictions on obstruction of a law-enforcement officer.

Judgment reversed.

Doyle, P. J., and Miller, J., concur in judgment only.

        See Pendleton v. State, 317 Ga. App. 396, 397 (731 SE2d 75) (2012).

       The lieutenant was trained in crisis intervention.

        See Black’s Law Dictionary 1571 (9th ed. 2009) (defining “suicide-by-cop” as “[a] form of suicide in which the suicidal person intentionally engages in life-threateningbehavior to induce a police officer to shoot the person”).

       Boatright also asserted that he suffers from degenerative disc disease and feared physical harm when one of the officers pushed on his head in order to place him in the patrol car.

         Land v. State, 259 Ga. App. 860, 863 (2) (578 SE2d 551) (2003) (punctuation omitted); accord Woodward v. State, 219 Ga. App. 329, 330 (1) (465 SE2d 511) (1995); see also OCGA § 16-10-24 (b) (“Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer or legally authorized person is guilty of a felony and shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years”).

       The trial court held, and the State maintains on appeal, that Boatright waived the argument that his detainment was not statutorily authorized. But because proof that the officers were acting within their lawful authority is an essential element of the crime of obstruction of a law-enforcement officer, the issue was automatically preserved for appellate review. See OCGA § 5-5-40 (g); OCGA § 5-6-36 (a); Lembcke v. State, 277 Ga. App. 110, 112 (1) (b) (625 SE2d 505) (2005) (“In criminal cases, . . . challenges to the sufficiency of the evidence need not have been raised below, whether at trial or in a motion for new trial.”).

        Land, 259 Ga. App. at 864 (2) (punctuation omitted); accord Woodward, 219 Ga. App. at 330 (1); see also Smith v. State, 84 Ga. App. 79, 81 (65 SE2d 709) (1951) (“If this attempted arrest was illegal, the defendant had a right to resist the same, using as much force as would be necessary to do so.”); Mullis v. State, 196 Ga. 569, 579 (27 SE2d 91) (1943) (“Where an arrest is not lawful, the person sought to be so arrested, contrary to his right if the arrest hadbeen lawful, has the right to resist, and in doing so has a right to resist force with force proportionate to that being used in unlawfully detaining him.”) (punctuation omitted).

        See Lindsey v. State, 282 Ga. App. 644, 646-47 (639 SE2d 584) (2006) (distinguishing between a civil custody authorized by the mental-health code and a criminal arrest).

        See Soldal v. Cook County, 506 U. S. 56, 67 (II) (113 SCt 538, 121 LE2d 450) (1992) (recognizing that the protection afforded by the Fourth Amendment “applies in the civil context as well” as in the criminal context); accord New Jersey v. T.L.O., 469 U. S. 325, 334-335 (105 SCt 733, 83 LE2d 720) (1985); Michigan v. Tyler, 436 U. S. 499, 504-506 (98 SCt 1942, 56 LE2d 486) (1978); Marshall v. Barlow’s, Inc., 436 U. S. 307, 312-313 (98 SCt 1816, 56 LE2d 305) (1978); Camara v. Municipal Court of San Francisco, 387 U. S. 523, 528 (87 SCt 1727, 18 LE2d 930) (1967); Braddock v. State, 127 Ga. App. 513, 515 (194 SE2d 317) (1972); see also O’Connor v. Ortega, 480 U. S. 709, 715 (II) (107 SCt 1492, 94 LE2d 714) (1987) (“[BJecause the individual’s interest in privacy and personal security suffers whether the government’s motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards, ... it would be anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.” (punctuation omitted)); McCabe v. Life-Line Ambulance Serv., Inc., 77 F3d 540, 544 (II) (C) (1st Cir. 1996) (“Included among the civil proceedings in which the Fourth Amendment applies are involuntary commitment proceedings for dangerous persons suffering from mental illness.”); Lenz v. Winburn, 51 F3d 1540, 1547 (IV) (A) (2) (11th Cir. 1995) (“[T]he right against unreasonable seizures would be no less transgressed if the seizure was undertaken to collect evidence, verify compliance with a housing regulation, effect an eviction by the police, or on a whim, for no reason at all.” (punctuation omitted)).

       Ga. Const. Art. I, § I, ¶ XIII (“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched and the persons or things to be seized.”).

       See Fitzgerald v. Santoro, 707 F3d 725, 732 (II) (B) (7th Cir. 2013) (“[S]eizures made to effectuate an involuntary mental health commitment are analyzed under the Fourth Amendment’s probable cause standard.”); Villanova v. Abrams, 972 F2d 792, 795 (7th Cir. 1992) (Posner, J.) (“Acivil commitment is a seizure, and may be made only upon probable cause----”); Gooden v. Howard County, Md., 954 F2d 960, 968 (4th Cir. 1992) (“We agree that the general right to he free from seizure unless probable cause exists was clearly established in the mental health seizure context”).

        Fitzgerald, 707 F3d at 732 (II) (B) (punctuation omitted); accord Villanova, 972 F2d at 795; Cochrane v. Harvey, 2005 WL 2176874, *3 (II) (N.D. Fla. 2005).

       OCGA § 37-3-41 (a), (b). The statute was amended by Ga. L. 2014, p. 347, hut the substance of the provisions quoted supra remained unchanged.

       OCGA § 37-3-42 (emphasis supplied).

       We reject the State’s position that the police department’s standard operating procedures gave the officers the authority to take Boatright into custody that the statutory law otherwise did not. And the State’s contention that the officers were authorized because Boatright was purportedly committing one of several inchoate offenses is not only belied by the record, but was expressly denied by both the officers involved and by the trial court during the course of the trial.

        Boockholdt v. Brown, 224 Ga. 737, 739 (164 SE2d 836) (1968); see also Union Pac. R. Co. v. Botsford, 141 U. S. 250, 251 (11 SCt 1000, 35 LE 734) (1891) (“No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”); Pasiewicz v. Lake County Forest Preserve Dist., 270 F3d 520, 524 (7th Cir. 2001) (noting that the Fourth and Fourteenth Amendments to the United States Constitution “share a common concern with protecting a person’s physical liberty from government restraint”); 1 William Blackstone, Commentaries on the Law of England: Of the Rights of Persons 130 (1766) (“Next to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.”).

        See Boockholdt, 224 Ga. at 739 (noting that laws depriving Georgians of their physical liberty “should he strictly construed and all requirements of the law strictly complied with”); see also Elam v. Rawson, 21 Ga. 139, 143 (1857) (“The common law leans towards that construction of all statutes, which is in favor of personal liberty, not that which is against personal liberty.”); accord Hope & Associates, Inc. v. Marvin M. Black Co., 205 Ga. App. 561, 562 (422 SE2d 918) (1992).

        Williams v. Smith, 179 Ga. App. 712, 715 (2) (348 SE2d 50) (1986) (punctuation omitted); see also Kendrick v. Metro. Psychiatric Ctr., Inc., 158 Ga. App. 839, 841 (282 SE2d 361) (1981) (physical precedent only).

       Williams, 179 Ga. App. at 715 (2) (punctuation omitted); see also Kendrick, 158 Ga. App. at 841.

        See Williams, 179 Ga. App. at 715 (2); see also Heath v. Peachtree Parkwood Hospital, Inc., 200 Ga. App. 118, 119 (2) (407 SE2d 406) (1991) (“It is apparent that we cannot permit even well intentioned departures from the statutory scheme for involuntary hospitalization.” (punctuation omitted)).

        See OCGA § 16-10-24 (b); Ewumi v. State, 315 Ga. App. 656, 664 (2) (a) (727 SE2d 257) (2012) (holding that officer lacked probable cause to arrest appellant, rendering the evidence supporting his conviction for obstruction insufficient); Land, 259 Ga. App. at 863 (2) (reversing appellant’s conviction for obstruction after concluding there was no admissible evidence showing his arrest was lawful).


author: BARNES, Presiding Judge.

text:
    A14A0405.
    GHOLSTON v. THE STATE.
    (761 SE2d 189)
   BARNES, Presiding Judge.

On January 29, 2010, Deante' Gholston pled guilty to armed robbery and robbery by force, and the trial court sentenced him to two consecutive 15-year sentences, with the initial 15 years to be served in confinement and the remaining 15 years to be served on probation. On January 28, 2011, Gholston filed a pro se “Extraordinary Motion to Withdraw Guilty Plea,” contending that he should be permitted to withdraw his plea because his indictment failed to allege the essential elements of the crimes, including venue, and because the two crimes should have merged for purposes of sentencing. The trial court dismissed the motion as untimely, and Gholston now appeals the dismissal. Discerning no error, we affirm.

Decided June 27, 2014.

Deante' Gholston, pro se.

Gholston’s motion was untimely, whether construed as a motion to withdraw his guilty plea or as a motion in arrest of judgment. “Both sorts of motions must be filed within the same term of court at which the guilty plea or judgment being challenged was entered.” Hagan v. State, 290 Ga. 353 (720 SE2d 645) (2012). Gholston’s guilty plea and the resulting judgment were entered in January 2010, during the December 2009 term of court in Bibb County. See OCGA § 15-6-3 (23) (A). Anew term of court began on Monday, February 1, 2010. See id. Hence, Gholston’s January 2011 motion was filed outside the term of court in which his plea and the resulting judgment had been entered, depriving the trial court of jurisdiction to consider it. See Hagan, 290 Ga. at 353.

Gholston suggests that his motion was timely because he was challenging his sentence as void, and a void sentence can be challenged at anytime. See Ward v. State, 311 Ga. App. 53 (714 SE2d 731) (2011) . But Gholston did not raise a proper void sentence claim. Rather, Gholston claimed that the indictment failed to allege the essential elements of the crime, including venue, and such a claim relates to the validity of his conviction, not his sentence. See Hagan, 290 Ga. at 353; Jones v. State, 290 Ga. App. 490, 493 (1) (659 SE2d 875) (2008). Likewise, Gholston’s claim that his convictions for armed robbery and robbery by force should have merged is a claim challenging his convictions and not a claim that his resulting sentence was void. See Williams v. State, 287 Ga. 192, 193-194 (695 SE2d 244) (2010); Rogers v. State, 314 Ga. App. 398, 399-400 (724 SE2d 417) (2012) . Furthermore, a sentence is not void if it “falls within the statutory range of punishment.” (Citation and punctuation omitted.) Ward, 311 Ga. App. at 54. Gholston’s sentence thus was not void because it fell within the statutory range of punishment for armed robbery and robbery by force. See OCGA §§ 16-8-40 (b); 16-8-41 (b).

For these combined reasons, the trial court lacked jurisdiction to consider Gholston’s untimely “Extraordinary Motion to Withdraw Guilty Plea.” The trial court, therefore, properly dismissed the motion. See Ward, 311 Ga. App. at 54.

Judgment affirmed.

Boggs and Branch, JJ., concur.

K. David Cooke, Jr., District Attorney, Jason M. Wilbanks, Elizabeth K. Bobbitt, Assistant District Attorneys, for appellee.


text:
    A14A0649.
    DOUGLAS v. THE STATE.
    (761 SE2d 180)
   BARNES, Presiding Judge.

A jury convicted Jeffery Douglas of three counts of armed robbery, two counts of aggravated assault, possession of a firearm during the commission of a crime, carjacking, and misdemeanor obstruction of an officer. On appeal, he contends that the evidence was insufficient to sustain his convictions and that his trial counsel was ineffective for failing to investigate the criminal records of the three victims and impeach them with that evidence on cross-examination. While we find the evidence sufficient for retrial, we agree that counsel’s actions fell below an objective standard of reasonableness, and that a reasonable probability exists that if counsel had been effective Douglas would have been acquitted of all but the misdemeanor obstruction charge. Accordingly, we reverse the armed robbery, aggravated assault, possession of a firearm during the commission of a crime, and carjacking convictions and remand for further proceedings.

1. Douglas contends that the evidence was not sufficient to authorize the jury to find him guilty beyond a reasonable doubt because the evidence against him was circumstantial and failed to exclude any other reasonable hypothesis except his guilt.

The appellate court reviews the evidence in the light most favorable to the verdict, giving deference to the jury’s determination on the proper weight and credibility to be given the evidence. It is for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.

(Citations and punctuation omitted.) Farris v. State, 290 Ga. 323, 324 (1) (720 SE2d 604) (2012).

Viewed in that light, the evidence at trial showed that the three victims were close friends and met at Mosely Park one late afternoon. They sat on a bench and were “drinking, kicking, . . . [and] saying stuff” when two men walked up, both with guns raised. The robbers took the victims’ cell phones and threw them away, then ordered the victims to lie face down on the ground. Victim One testified that the shorter robber — whom he identified at trial as Douglas — took his wallet, car keys, and $500 cash, and the taller robber took $600 from Victim Two and $25 from Victim Three. The two robbers then drove off in Victim One’s car, but as soon as they pulled into the street they were hit by an oncoming car. The robbers jumped out of the car and began to run.

Victims One and Two began to chase the robbers, who turned and shot at the victims and then kept running. Victim Two got into his car and began to chase the robbers through the neighborhood as they ran between houses. The robbers eventually split up and ran into the woods. A witness to the crime also began to chase the robbers because he was very familiar with the neighborhood, but when they split off the witness lost sight of both robbers for a time.

Meanwhile, an off-duty officer in his personal vehicle drove by Victim One’s wrecked car in the middle of the road and called 911 after one of the victims said he been robbed and shot at. The officer helped establish a perimeter and left after another officer responded to the 911 call. The responding officer talked to one of the victims, who described the robbers as two African-American men, one in a “white gray-colored shirt and blue j eans with somewhat of a low haircut” and the other wearing “possibly a blue shirt with a fisherman’s hat.” The officer radioed the description to other officers in the area who had responded to the call.

A patrol officer heard the description of the robbers and began patrolling the area. He got out of his car to walk through the neighborhood and saw an African-American man with a white grayish shirt and blue jeans walking across a back yard. That man was Douglas. Douglas began to walk “a lot faster” when he saw the officer. The witness from the park saw Douglas and told the officer, “That’s him, that’s him,” meaning one of the robbers. The officer ran back behind a house and found Douglas squatting down underneath a deck and “burrowing into his pocket looking like he was looking for something.”

The officer drew his gun, identified himself, and told Douglas to show his hands, but instead Douglas crawled out from under the deck and began to run away despite the officer’s order to stop. Douglas jumped two fences but the officer caught up with him when he tripped and placed him under arrest. Douglas had $305 balled up in his pocket but no cell phones or gun. No money, cell phones, or weapons were found along the pathway of the chase.

The arresting officer placed Douglas in the back of another officer’s patrol car, and testified that the three victims walked up to the car and said, “Oh, yeah, that’s him; that’s him; that’s him right there.” The other responding officer also testified that the victims identified Douglas when he was brought back to the park in the back of a patrol car. Regardless of where the patrol car was located when the victims identified Douglas as the robber, the record is clear that he was under arrest in the back of a police car when they did so. Further, the witness who chased the robbers also identified Douglas as one of the robbers after his arrest.

When we review a challenge to the sufficiency of the evidence, “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.” (Emphasis omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). The evidence as outlined above is sufficient to authorize the jury’s verdict on the charges of three armed robberies, two aggravated assaults, possession of a firearm during the commission of a crime, carjacking, and misdemeanor obstruction of an officer. See Range v. State, 289 Ga. App. 727, 729 (2) (658 SE2d 245) (2008); Dunn v. State, 262 Ga. App. 643, 645 (1) (586 SE2d 352) (2003).

2. Douglas also contends that his trial counsel was ineffective for failing to investigate the victims’ criminal histories even though the defense theory was that the victims misidentified Douglas as one of the robbers.

Ineffective assistance is a “deficient performance” by counsel resulting in “actual prejudice.” Head v. Hill, 277 Ga. 255, 266 (VI) (587 SE2d 613) (2003). We strongly presume that trial counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,” and counsel’s performance is evaluated without reference to hindsight. Strickland v. Washington, 466 U. S. 668, 689-690 (III) (A) (104 SCt 2052, 80 LE2d 674) (1984). “The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004). “A petitioner has suffered actual prejudice only where there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citation and punctuation omitted.) Head, 277 Ga. at 266 (VI).

(a) Deficient performance. Douglas argues that his trial counsel’s performance fell below an objective standard of reasonableness because, although his defense was that the victims identified the wrong person and only said they recognized him as one of the robbers after they saw him at a custodial showup, trial counsel failed to investigate the victims’ background and criminal histories.

Trial counsel is obliged to conduct a reasonable and thorough pretrial investigation, including locating and interviewing potential witnesses. Tenorio v. State, 261 Ga. App. 609, 612-613 (3) (583 SE2d 269) (2003). At the hearing on Douglas’s motion for new trial, his trial counsel testified that Douglas’s theory of defense was mistaken identity, and agreed that the case “hinged on the credibility of the three victims.” When asked whether she had reviewed the victims’ criminal history, counsel replied that while it was her policy to run a criminal background check and ask her investigator to see if there were any criminal charges pending, she apparently had not done so in this case or she would have cross-examined them about their prior convictions. When asked if she had any strategic reason not to introduce impeachment or bias evidence, counsel responded she did not, but “probably just mistakenly didn’t get the criminal convictions or certified convictions in time or something.”

We acknowledge that

[strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.

(Citation and punctuation omitted.) Wiggins v. Smith, 539 U. S. 510, 521-522 (II) (A) (123 SCt 2527, 156 LE2d 471) (2003). See also Poole v. State, 291 Ga. 848, 858-859 (8) (734 SE2d 1) (2012) (trial counsel’s decision to rely on his investigators’ inspections of murder weapon resulted from reasoned strategic judgment, not inattention, and thus was not dereliction of duty to conduct reasonable investigation). “In determining whether the defendant has established that counsel’s performance was constitutionally deficient, the court should keep in mind that counsel’s function is to make the adversarial testing process work in the particular case.” (Citation and punctuation omitted.) Jowers v. State, 260 Ga. 459, 462 (2) (396 SE2d 891) (1990).

In this case, “[tjrial counsel’s performance was deficient because [s]he failed to obtain [the victims’] criminal records.” State v. Lamb, 287 Ga. App. 389, 391-392 (1), (2) (651 SE2d 504) (2007), overruled on other grounds, O’Neal v. State, 285 Ga. 361, 363, n. 4 (677 SE2d 90) (2009). Counsel admitted having no strategic reason not to investigate the three victims who identified Douglas as the robber, despite the fact that Douglas’s main theory of defense was mistaken identity and the State relied primarily on the victims’ identification of Douglas as one of the robbers. “Counsel’s failure to investigate is unreasonable where ... it resulted from inattention and not from reasoned strategic judgment.” Terry v. Jenkins, 280 Ga. 341, 347 (2) (c) (627 SE2d 7) (2006) (trial counsel’s failure to investigate factual defense or obtain available testimony uncovered by habeas counsel was inconsistent with professional standards and unreasonable).

(b) Actual prejudice. To obtain relief, Douglas must also “ ‘show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009), quoting Strickland, 466 U. S. at 694. Again quoting Strickland, the Miller court noted that “a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Miller, 285 Ga. at 286.

Douglas argues that an investigation into the victims’ backgrounds would have revealed the existence of significant impeachment evidence, including prior felony convictions and pending felony charges as of trial, and that confidence in his convictions is undermined because the State’s case hinged on the victims’ unimpeached identification of him. Further, misidentification was his sole defense. The State argues that the evidence of Douglas’s guilt was “so overwhelming that there is no reasonable probability the outcome would have been more favorable had counsel done the things [Douglas] now claims counsel should have.”

But other than identification of Douglas by a witness who lost sight of the robber while chasing him and by the victims following a one-on-one showup in the back of a police car two hours after the robbery, no other evidence ties Douglas to the crimes. The witness testified that he chased the robbers from the park, but admitted losing sight of both of them for a period of time before pointing out Douglas walking through a neighborhood back yard to a responding officer.

While Victim One testified at trial that he knew Douglas “from the streets,” recognized him as he approached the group with his gun drawn, and told the responding officers that he knew one of the men who robbed him, he did not mention in the statement he wrote for the police on the night of the robbery that he knew the identity of the man who robbed him. While Victim One testified that he asked defendant during the robbery if he was really going to “do [him] like that,” the other two victims testified that they never heard Victim One say he knew the robber during the crime. Victim Two testified at trial that he knew Douglas, but also did not mention that fact in his written statement. The patrol officer who responded to the scene testified that his report did not indicate that any of the victims said they knew the robber and that none of the other officers told him that Victim One had reported to them that he knew the robber.

The first responding officer testified that the victims described one of the robbers as wearing a “white gray-colored shirt” and the other was wearing a blue shirt and fisherman’s hat. Before trial, the State’s investigator showed the three victims the gray t-shirt and blue jeans Douglas had been wearing when he was arrested, and then identified them to the jury. Victims One and Three subsequently testified that one of the two robbers was wearing a gray t-shirt and blue jeans, although their descriptions of the second robber’s clothing varied from a light t-shirt and khaki shorts to a white t-shirt and jeans. Victim Two testified that both robbers were wearing white t-shirts and blue jeans, and described them the same way in his written statement. In his written statement Victim One described the robbers as a short man wearing a gray shirt and a tall man wearing a fisherman’s hat, and Victim Three included no description of the robbers or their clothing in his written statement.

Regarding the stolen cash, Victim One testified that Douglas robbed him at gunpoint of $500, Victim Two testified that Douglas collected a total of $1,125 from the three victims, $600 cash from him, and $25 from Victim Three. Victim Three also testified that the robbers took five or six cell phones from the victims and ordered him to throw away another cell phone sitting on the side of the bench.

The witness who saw the robbery testified that all of the money taken from the victims was folded over flat, but the arresting officer found only $305 balled up in Douglas’s pocket and no cell phones or gun. Both the witness and a responding officer who chased Douglas testified they found no money or weapons on the ground. While Victim Two testified that other people found money on the ground along the robbers’ trail, he did not testify that he had personally found any money.

In light of this testimony, the victims’ credibility in identifying Douglas as the man who robbed them was therefore a critical issue at trial. Trial counsel testified at the motion for new trial hearing that her theory of defense was that the victims were mistaken in identifying Douglas as one of the men who robbed them. Appellate counsel introduced evidence that, if trial counsel had investigated the victims’ backgrounds, counsel would have discovered that the victims had been convicted of drug-related offenses and, most importantly, that two of the victims had major drug charges pending when they testified. On appeal, Douglas argues that if his trial counsel had not been deficient, she could have introduced three kinds of impeachment evidence against the victims at trial: impeachment with a prior felony conviction; impeachment regarding the nature of the victims’ relationship; and impeachment for possible bias due to pending charges.

(i) Impeachment with a Prior Felony Conviction. Victim Two was indicted for cocaine trafficking in Mosely Park in October 2002 and pled guilty to possession with intent to distribute in July 2003. Douglas was tried before the new Evidence Code went into effect in January 2013, and under former OCGA § 24-9-84.1 (a) (1), evidence that a witness had been convicted of a felony in the ten years preceding trial was admissible if the court determined that the probative value of admitting the evidence outweighed its prejudicial effect to the witness. The introduction of evidence of a prior felony conviction is intended “to afford the jury a basis to infer that the witness’ character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness.” Hines v. State, 249 Ga. 257, 259-260 (2) (290 SE2d 911) (1982).

Victim Two’s felony conviction was eight years old when Douglas was tried, and because the State’s case against Douglas depended on the victims’ identification of him as a robber, their credibility was a central issue. Therefore, Douglas contends, the trial court would have abused its discretion in failing to allow him to impeach Victim Two with a certified copy of his conviction. See Walker v. State, 294 Ga. 752, 755-756 (2) (b) (755 SE2d 790) (2014) (defendant claimed trial counsel was ineffective for failing to move to exclude evidence of defendant’s felony conviction, but because defendant’s credibility was central issue, trial court would not have abused its discretion by denying such a motion and therefore counsel was not ineffective for failing to make it). According to Douglas, the absence of an attempt to impeach Victim Two with a certified copy of his prior felony conviction tends to undermine confidence in the outcome of his trial.

(ii) Relationship of the Victims. Douglas argues that the victims painted a “very wholesome and innocuous picture of their relationships and how they knew one another,” but trial counsel testified at the motion for new trial hearing that she believed the men were involved in a drug transaction in the park the day they were robbed, based on their statements, the time of day, and the amount of cash they had on hand. If she had possessed evidence that they had prior felony drug convictions or pending drug charges, she testified, she would have advanced that theory on cross-examination. The evidence about the victims that was presented at the motion for new trial hearing could have been tendered at trial to support that theory, as Victims One and Three were arrested together in a drug bust in 2005 and Victims Two and Three were arrested together before trial and had pending drug charges against them when they testified against Douglas. If trial counsel had cross-examined the victims about the “true nature” of their relationships, Douglas argues, their credibility would have been negatively affected.

(iii) Evidence of Pending Charges. The Confrontation Clause of the Sixth Amendment guarantees a defendant in a criminal case the right to show the possible bias of a witness by cross-examining him concerning pending criminal charges against the witness for purposes of exposing a witness’s motivation in testifying, such as any bias, partiality, or an agreement between the government and the witness. Davis v. Alaska, 415 U. S. 308, 315-317 (2) (94 SCt 1105, 39 LE2d 347) (1974); Hines, 249 Ga. at 259 (2).

[T]he exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. It is especially important in a case where a witness or an accomplice may have substantial reason to cooperate with the government that a defendant be permitted to search for an agreement between the government and the witness. Whether or not such a deal existed is not crucial. What counts is whether the witness may be shading his testimony in an effort to please the prosecution. A desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness, but such a subtle desire to assist the state nevertheless may cloud perception.

(Citations and punctuation omitted.) Hines, 249 Ga. at 260 (2). See also Manley v. State, 287 Ga. 338, 346 (5) (698 SE2d 301) (2010) (co-indictee should have been allowed to question informant regarding the basis for his First Offender plea to show potential bias).

It is true that an attempt to impeach a witness on the ground that he is a criminal must be supported by a conviction; that he merely has been charged with a crime is no proof that he is a criminal. But that is not to say that pending criminal charges are not relevant. On the contrary, the partiality of a witness may be exposed by proof that he hopes to benefit in related cases from his cooperation with the prosecution in this case. Such partiality is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of his testimony.

(Citations and punctuation omitted; emphasis in original.) Kinsman v. State, 259 Ga. 89, 91 (7) (b) (376 SE2d 845) (1989).

Evidence of pending criminal charges is a “more particular attack on the witness’ credibility,” and “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” (Citations and punctuation omitted.) Hines, 249 Ga. at 260 (2). See Hibbs v. State, 299 Ga. App. 723, 724-727 (2), (3) (683 SE2d 329) (2009) (trial court committed harmful error in restricting cross-examination of juvenile who was in custody with pending juvenile charges against him when he made outcry against defendant, even though no charges were pending as of trial).

In this case, appellate counsel discovered upon investigation that Victims Two and Three had been arrested together eleven months before trial, when police executed a search warrant on two adjacent residences that uncovered a total of 1,040 grams of crack and powder cocaine, more than a pound of marijuana, and two handguns. Both victims were charged with theft by receiving a stolen gun and possession of a firearm by a felon; Victim Two was also charged with trafficking in cocaine and marijuana possession with intent to distribute, and Victim Three was also charged with marijuana possession. Additionally, Victim Three was arrested and indicted in June 2005 for possession of marijuana with intent to distribute after police executed a search warrant at a residence where Victim One was also located. Those charges appeared to be pending as of trial.

With this evidence, Douglas argues, trial counsel could have cross-examined the victims about whether they were biased toward helping the State in hopes of receiving a lighter sentence in their own pending cases. In fact, while Victim Two was initially charged with cocaine trafficking, four months after Douglas’s trial the State nolle prossed Victim Two’s cocaine trafficking charge, and the trial court allowed him to enter an Alford plea to possession of marijuana with intent to distribute, theft by receiving, and the firearms charges. The trial court sentenced him to five years, to serve one in custody, with the custodial portion commuted to time served, and suspended the two consecutive five-year sentences on the gun charges.

While the State argues on appeal that the evidence against Douglas was overwhelming, and therefore that any deficient performance by trial counsel was harmless error, in its closing argument at trial, the prosecutor focused almost entirely on the credibility of the victims. He argued that the victims identified Douglas less than half an hour after the robbery and that there was “absolutely no reason to believe they’re not telling the truth.” He continued, ‘Why would the three victims and [the witness] lie? . . . What does anybody have to gain by lying?” “There is no evidence of lying, no evidence of conspiracy, no evidence of mistaken identity,” the State argued.

If trial counsel had not been deficient and had investigated the victims, she would have been entitled to cross-examine them about their pending criminal charges.

While the trial court may exercise reasonable judgment in determining the extent of cross-examination on a particular subject, the trial court abuses its discretion and commits prejudicial error when it cuts off all inquiry on a subject with respect to which the defense was entitled to a reasonable cross-examination.

Beam v. State, 265 Ga. 853, 856-857 (4) (463 SE2d 347) (1995).

Although the State characterizes the evidence against Douglas as “overwhelming,” its proof consisted entirely of the eyewitness identification of Douglas by the three victims and a bystander who lost sight of the robbers while chasing them. Considering that (1) Douglas’s defense was that the victims identified the wrong person, (2) the responding police officers did not remember any of the victims saying they knew one of the robbers, (3) none of the victims’ statements indicated that they knew either of the robbers, (4) the victims’ description of the robbers’ clothing (a gray-white t-shirt and blue jeans) was fairly generic, (5) the witness who chased the robbers lost sight of them, and (6) the victims and witness all identified Douglas from a one-on-one showup, we conclude that a reasonable probability — “a probability sufficient to undermine confidence in the outcome” — exists that but for trial counsel’s unprofessional errors, the outcome of this trial would have been different. Strickland, 466 U. S. at 694. See also Fedak v. State, 304 Ga. App. 580, 585 (1) (696 SE2d 421) (2010) (“Although the [omitted] testimony would not have required the jury to acquit Fedak, his burden here is to show only a reasonable probability of a different outcome, not that a different outcome would have been certain or even more likely than not.”) (citations, punctuation and footnotes omitted).

Decided June 27, 2014.

Alixe E. Steinmetz, for appellant.

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

Accordingly, while we affirm Douglas’s conviction for obstructing an officer, we reverse his convictions for three counts of armed robbery, two counts of aggravated assault, possession of a firearm during the commission of a crime, and carjacking, and remand for a new trial.

Judgment affirmed in part and reversed in part, and case remanded for a new trial.

Boggs and Branch, JJ., concur.

       Douglas does not argue that his counsel’s ineffectiveness led to a reasonable probability that he would have been acquitted of the charge of obstructing “a law enforcement officer in the lawful discharge of his official duties, by running after being told to stop,” nor does he argue that the evidence on this charge was insufficient. Accordingly, that conviction is affirmed.

       We note that the State does not argue on appeal that trial counsel’s performance was adequate, only that it was not prejudicial.

       While identification testimony resulting from a one-on-one showup “is not necessarily inadmissible” and Douglas has not claimed his trial counsel was ineffective for failing to challenge his in-custody identification, the procedure is “inherently suggestive.” (Citation and punctuation omitted.) Butler v. State, 290 Ga. 412, 414 (3) (721 SE2d 876) (2012). The fact that the victims identified Douglas when he was in custody in the back of a police car contributes to the conclusion that the evidence against him was not overwhelming and that therefore counsel’s ineffective assistance was not harmless.

       As noted previously, the State conceded in the motion for new trial hearing that the time lapse between the robbery and the victims’ identification of Douglas was two hours.


author: RAY, Judge.

text:
    A14A0042.
    SWAFFORD v. ELKINS et al.
    (761 SE2d 359)
   RAY, Judge.

Eugene Swafford filed suit against Jeff Elkins and Quality Outdoor Products of the Southeast, LLC (“QOP”) seeking damages arising out of the negligent construction of a roof on his home. Swafford asserted that QOP, an out-of-state company, was subject to the jurisdiction ofthe trial court pursuanttoOCGA § 9-10-91 (Georgia’s Long Arm Statute), and he served a second original of the summons and complaint on its registered agent for service of process in Alabama. When QOP failed to file an answer to the complaint, the trial court entered a default judgment against QOP. The trial court granted QOP’s motion to set aside the judgment and dismissed the case, finding that QOP was not subject to jurisdiction under the Long Arm Statute. Swafford appeals from this order. For the reasons that follow, we reverse and remand the case with direction.

1. Swafford contends that the trial court erred in finding that it lacked personal jurisdiction over QOP under Georgia’s Long Arm Statute. Specifically, he contends that QOP waived this issue. We agree.

A motion to set aside a judgment based upon a lack of jurisdiction over the person may be brought at any time. OCGA § 9-11-60 (f). Although a nonresident defendant does not waive the defense of lack of personal jurisdiction merely by failing to answer the complaint, the defense of lack of personal jurisdiction may be waived if the nonresident defendant “submits to the jurisdiction of the court by seeking a ruling from the court on the merits of the case or otherwise enters a general appearance without raising the issue.” (Citation omitted.) Hoesch America, Inc. v. Dai Yang Metal Co., Ltd., 217 Ga. App. 845, 845-848 (1) (459 SE2d 187) (1995). See also Packer Plastics, Inc. v. Johnson, 205 Ga. App. 797, 798 (423 SE2d 690) (1992) (filing a motion in court to set aside default judgment constitutes an appearance).

Here, QOP filed its motion to set aside the judgment on the ground that it “did not receive any information about this action [from its registered agent] until the Plaintiff tried to collect on the judgment [.]” QOP did not raise the issue of lack of personal jurisdiction under the Long Arm Statute at the time it filed its motion. Moreover, in a subsequent reply brief in support of its motion, QOP argued that its registered agent failed to notify QOP of this lawsuit, denied that it had any involvement in the construction of the roof, and stated that “[i]f the Plaintiff truly does have a case against [QOP] then [the Plaintiff] should [be required to] prevail upon the evidence. [QOP] hereby consents to venue in Haralson County, Georgia and [QOP] will acknowledge service.” Thus, it is clear that QOP initially sought to have the default judgment set aside so that it could present its defense on the merits of the case.

After the hearing on the motion to set aside the judgment, QOP filed a post-hearing brief raising for the first time the issue of lack of personal jurisdiction under the Long Arm Statute. As QOP failed to raise this issue when it filed its motion to set aside the judgment, in its initial brief to the trial court, and at the hearing on the motion, we find that QOP waived this issue. See Hoesch, supra; Packer Plastics, supra.

Decided June 30, 2014.

Jack F. Witcher, Daniel B. Greenfield, for appellant.

Meng H. Lim, Ney Hoffecker & Erck, William B. Ney, Donna-Marie Hayle, for appellees.

Accordingly, the trial court erred when it granted QOP’s motion to set aside the judgment and dismissed the case on this basis. However, we remand the case to the trial court to make a specific determination as to whether QOP is entitled to have the judgment set aside on the basis of “[f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant[.]” OCGA § 9-11-60 (d) (2).

2. In light of our holding in Division 1, we need not address Swafford’s remaining enumerations of error.

Judgment reversed and case remanded with direction.

Andrews, P. J., and McFadden, J., concur.

       Defendant Elkins filed for bankruptcy protection shortly after the lawsuit was filed, and the claim against him was discharged. Elkins is not a party to this appeal.

       The record shows that Swafford and QOP later attempted to resolve the case through mediation, but they were unsuccessful.


text:
    A14A0095.
    ROBERSON v. THE STATE.
    (761 SE2d 361)
   BARNES, Presiding Judge.

A Camden County jury found Donnie Roberson guilty of two counts of child molestation and three counts of felony sexual battery. Following the denial of his motion for new trial, Roberson appeals and contends that the evidence was insufficient to support his conviction, the trial court erred in admitting similar transaction evidence, his trial counsel was ineffective, and the trial court erred in instructing the jury on the credibility of a witness. Upon our review, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

(Citation omitted.) Stepho v. State, 312 Ga. App. 495, 496 (718 SE2d 852) (2011).

So viewed, the evidence demonstrates that in January 2008, the then 14-year-old victim was visiting her grandmother and Roberson, who was her step-grandfather. While her grandmother was away, Roberson approached the victim while she was in bed and touched her vagina and breast. During Thanksgiving 2008, the victim was asleep on the sofa while visiting her grandmother and Roberson when Roberson pulled down her shorts and pulled up her shirt and “started touching [her]... vagina and... breasts.” The victim pretended to be asleep and Roberson “pulled down his shorts and . . . took out his penis.” When the victim’s uncle walked into the room, Roberson quickly covered the victim, sat on the floor and pretended like nothing happened. In December 2008, the victim told her great-aunt about the incident, and when the great-aunt later confronted Roberson, he told her that he “needed help,” “[t]hat he [had] already talked to God . . . and confessed to God about this,” and that he had “touched [the victim] here and there.” Thereafter, the victim’s “mother” reported the incident to police, and following an investigation, Roberson was arrested for the crimes charged.

At the trial, the State presented evidence of two similar transactions. As to the first incident, the great-aunt testified that in 1985 or 1986, when she was 14 years old, she was riding in a car with Roberson when he stopped the car, turned off the engine, touched her leg and said that he “wanted to give [her] a little money because he wanted some of this pussy.” The two struggled, but she escaped from his car and hid until Roberson drove away. The great-aunt said that she told her mother and her sister, who was Roberson’s wife, but when confronted, Roberson told them that he had never intended to hurt her, and nothing further was done.

As to the second incident, the woman the victim refers to as her mother testified that in 1980 or 1981, when she was about 10 or 11 and Roberson was in his twenties, she and Roberson were joking around with each other and he threatened to put his penis on her head if she repeated something she had said. When she did, Roberson took his penis out and put it on her head. She did not report the incident.

1. Roberson contends that the evidence was insufficient to sustain his convictions for the crimes charged because there was no evidence corroborating the victim’s testimony and no other witnesses had seen anything happen between him and the victim. This argument is unpersuasive. Contrary to Roberson’s contention otherwise, “Georgia law... does not require corroboration of a child molestation victim’s testimony. Thus, the testimony of the victim [ ], standing alone, was sufficient to support [Roberson’s] convictions.” (Citations and punctuation omitted.) Brown v. State, 324 Ga. App. 718, 720 (1) (751 SE2d 517) (2013).

2. Roberson also contends that the trial court erred in admitting similar transaction evidence involving the victim’s mother and great-aunt. He contends that the evidence should not have been admitted because the State did not sufficiently establish that he committed the similar transactions, the transactions were not sufficiently similar to the present allegations, and the time between the similar transactions and the present transaction was too remote.

The exception to the general rule that evidence of other crimes is not admissible has been most liberally extended in the area of sexual offenses: In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged.

(Footnote omitted.) Brown v. State, 275 Ga. App. 281, 284 (2) (620 SE2d 394) (2005). We will not reverse a trial court’s decision to admit similar transaction evidence absent an abuse of discretion. Parker v. State, 283 Ga. App. 714, 720 (3) (642 SE2d 111) (2007).

Here, after conducting a pretrial hearing, the trial court admitted evidence of the two similar transactions for the purpose of showing Roberson’s course of conduct and lustful disposition toward victims of a certain age, and found that the requirements under Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991) had been met. Per Williams, the State must make three affirmative showings. Id. at 642 (2) (b). First, it must identify a proper purpose for the admission of the evidence; second, it must establish that the defendant committed the separate act or offense; and third, it must show “a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” Id.

Roberson does not challenge that the evidence was admitted for a proper purpose, but maintains that the State failed to prove that he committed the similar transactions because the only evidence presented was the victims’ testimony. However, “it is well settled that there need not be a criminal charge or conviction relating to a similar offense for it to be admissible.” (Citations and punctuation omitted.) Whitman v. State, 316 Ga. App. 655, 656 (729 SE2d 409) (2012). In fact, “even when the prior acts of the defendant do not amount to crimes, evidence of those acts may be admissible if it tends to show that the defendant had a lustful disposition with respect to preteen or teenaged [children].” Bibb v. State, 315 Ga. App. 49, 51 (2) (b) (726 SE2d 534) (2012).

Likewise, regarding his challenge to the similarity of the transactions, there is no requirement that similar transactions be absolutely identical to the charged crime. Perkins v. State, 224 Ga. App. 63, 66 (3) (479 SE2d 471) (1996). See also Wilson v. State, 210 Ga. App. 705, 708 (2) (436 SE2d 732) (1993) (“Sexual molestation of young children, as well as teenagers, regardless of sex or type of act, is sufficient similarity to make the evidence admissible.”). Here, the differences in the specific acts of molestation would not render the similar transactions inadmissible. See Woods v. State, 304 Ga. App. 403, 406-407 (2) (696 SE2d 411) (2010). Based upon the record in this case, the trial court did not abuse its discretion in allowing evidence of the past similar transactions because of the similarities to the instant crimes and their probative value showing Roberson’s pattern of molesting female family members of a certain age. See, e.g., Perkins, 224 Ga. App. at 66 (3).

Moreover, although Roberson contends that the previous transactions were too remote in time to the present acts, “[w]here, as here, the similar transaction evidence is otherwise admissible, a time lapse such as [was present here] goes to the weight and credibility of the evidence and does not demand its exclusion.” (Punctuation and footnote omitted.) Copeland v. State, 276 Ga. App. 834, 837 (1) (625 SE2d 100) (2005). Roberson argues that the prejudicial impact of acts that occurred more than 20 years before the current act substantially outweighed any probative value, and cites Gilstrap v. State, 261 Ga. 798 (410 SE2d 423) (1991) in support of his argument. In Gilstrap, the Supreme Court of Georgia found that evidence of “an event 31 years in the past is too remote” to be admitted as similar transaction. Id. at 799 (1) (b). However, the Court later explained that Gilstrap did not create a bright-line rule regarding the admissibility of remote similar transaction evidence. Pareja v. State, 286 Ga. 117, 121 (686 SE2d 232) (2009). Instead, the prejudicial impact of similar transactions that are remote in time may be outweighed by their probative value depending on the particular facts of each case and the purpose for which the similar transactions are being offered. Id. at 119-120. Moreover, “[w]here different generations are involved, as in the case sub judice, obviously many years are going to lapse between the acts.” (Citation omitted.) Bryson v. State, 210 Ga. App. 642, 644 (2) (437 SE2d 352) (1993). See Wright v. State, 259 Ga. App. 74, 75 (1) (576 SE2d 64) (2003) (34 years not too remote where similar transaction evidence showed a pattern of sexual abuse against several generations of the same family).

In this case, we find no abuse of discretion in the trial court’s decision to admit evidence of Roberson’s past inappropriate sexual contact with female family members who were in the same age-group as the victim when the past acts occurred.

3. Roberson also contends that his trial counsel was ineffective for failing to submit any pretrial motions or jury instructions, and for failing to conduct any investigation of the case. We do not agree.

To prove his claim of ineffective assistance of counsel, Roberson must establish both prongs of the test set forth in Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984): (1) that his trial counsel’s performance was deficient and (2) that counsel’s inadequate performance “so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency.” (Punctuation and footnote omitted.) Ward v. State, 274 Ga. App. 511, 514 (4) (618 SE2d 154) (2005). “Failure to satisfy either prong of this two-part test is fatal to an ineffective assistance claim.” Id. at 515 (4).

At the hearing on the motion for a new trial, trial counsel testified that he did not file any pretrial evidentiary motions because “there wasn’t a custodial statement. There wasn’t anything to suppress. We entered agreements on some things that weren’t coming in. Discovery had been provided.” According to trial counsel, he did not “see the need to file any motions.” He further explained that he had not filed requests to charge because he was satisfied with the pattern charges in the case, and there had been no dispute over the jury charges. “[T]rial tactics and strategy... are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation and footnote omitted.) Lewis v. State, 275 Ga. App. 41, 44 (3) (619 SE2d 699) (2005).

Further, although Roberson asserts that his trial counsel was ineffective for failing to file pretrial motions, more fully investigate his case, or submit certain jury instructions, he provides absolutely no argument as to how the outcome would have been different absent these deficiencies. To show prejudice, “[t]he likelihood of a different result must be substantial, not just conceivable.” (Citation omitted; emphasis supplied.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012). Here, Roberson provides no guidance as to what evidence might have been gleaned through further investigation. Although he contends that trial counsel neglected to file evidentiary pretrial motions, “such as a request for education or Department of Family and Children’s Services . . . records” for the victim, he makes no further proffer as to what evidence he expected to find as a result of any pretrial motions. Likewise, he contends that trial counsel was' deficient for failing to file any jury charges, but Roberson provides no further argument as to what charges trial counsel should have put forth.

Thus, as Roberson has failed to demonstrate that his trial counsel’s performance was deficient or prejudicial, his ineffectiveness claim fails.

4. Roberson’s objection to what he contends was the use of “disfavored language” by the trial court in its jury instruction is also meritless. The trial court instructed the jury:

In passing upon credibility you may consider all the facts and circumstances of this case, the witness’s manner of testifying, their interest or lack of interest, their means and opportunity for knowing the facts which they testify about, the nature of the facts which they testify about, the probability or improbability of their testimony and of the occurrences which they testify about. You may also consider their personal credibility insofar as it may legitimately appear from the trial of this case. When you consider the evidence in this case if you find a conflict you should settle this conflict if you can without believing that any witness has made a false statement. If you cannot do this, then you should believe that witness or those witnesses you think best entitled to belief. You must determine what testimony you will believe and what testimony you will not believe.

Decided July 1, 2014.

Catherine E. Whitworth, for appellant.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney, for appellee.

(Emphasis supplied.)

Even assuming that this language can be construed as a “presumption-of-truthfulness” charge which the Supreme Court of Georgia in Noggle v. State, 256 Ga. 383, 386 (4) (349 SE2d 175) (1986), held “can be misleading and is of little positive value,” our Supreme Court has further held that “the use of such a charge is not unconstitutional and does not constitute reversible error.” (Citation and punctuation omitted.) Blackmon v. State, 272 Ga. 858, 860 (3) (536 SE2d 148) (2000). Moreover, “jury instructions must be read and considered as a whole.” Whitaker v. State, 283 Ga. 521, 525 (4) (661 SE2d 557) (2008). Here, the trial court fully charged the jury on determining the credibility of witnesses, resolving conflicts in the evidence and the ways in which witnesses may be impeached. “When read in context, the charge here was not misleading. . . .” Blackmon, 272 Ga. at 860 (3).

Judgment affirmed.

Boggs and Branch, JJ., concur.

       Roberson was tried in 2009, so Georgia’s new Evidence Code does not apply to this case. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).

       The woman referred to as the victim’s mother is one of the grandmother’s sisters, and is also the victim’s great-aunt.

       The officer in charge of the investigation did not testify at trial and apparently was in training at the time of the trial.

       Pursuant to OCGA § 16-6-4 (a) (1), “A person commits the offense of child molestation when such person... [d] oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person....” “Aperson commits the offense of sexual battery when he or she intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person,” OCGA § 16-6-22.1 (b), and “[a] person convicted of the offense of sexual battery against anychild underthe age of 16years shall be guilty ofafelony... .’’OCGA § 16-6-22.1 (d).